<PAGE>
As filed with the Securities and Exchange Commission on August 15, 1996
Registration No. 333-07657
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<S> <C> <C>
DONALDSON, LUFKIN & JENRETTE, INC. DELAWARE 13-1898818
DLJ CAPITAL TRUST I DELAWARE 13-7093229
DLJ CAPITAL TRUST II DELAWARE 13-7093230
DLJ CAPITAL TRUST III DELAWARE 13-7093231
DLJ CAPITAL TRUST IV DELAWARE 13-7093232
(Exact name of Registrant as (State or other jurisdiction of (I.R.S. employer
specified in its charter) incorporation or organization) identification number)
</TABLE>
277 PARK AVENUE
NEW YORK, NEW YORK 10172
(212) 892-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
MICHAEL A. BOYD
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
DONALDSON, LUFKIN & JENRETTE, INC.
277 PARK AVENUE
NEW YORK, NEW YORK 10172
(212) 892-3000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPIES TO:
JEFFREY SMALL
RICHARD D. TRUESDELL, JR.
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 450-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ] ------
If this Form is a post-effective amendment filed pursuant to rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] -----
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains two forms of Prospectuses to be used
in connection with offerings of the following securities: (1) debt securities
(both senior and subordinated) and preferred stock of Donaldson, Lufkin &
Jenrette, Inc. and (2) preferred securities of DLJ Capital Trust I, II, III
and IV, severally, junior subordinated debt securities of Donaldson, Lufkin &
Jenrette, Inc. and Guarantees by Donaldson, Lufkin & Jenrette, Inc. of
preferred securities issued by DLJ Capital Trust I, II, III and IV. Each
offering of securities made under this Registration Statement will be made
pursuant to one of these Prospectuses, with the specifications of the
securities offered thereby set forth in an accompanying Prospectus
Supplement.
In addition, this Registration Statement contains separate prospectus
pages relating to certain market-making transactions in (1) the debt
securities and preferred stock of Donaldson, Lufkin & Jenrette, Inc. and (2)
the preferred securities of DLJ Capital Trust I, II, III and IV, the junior
subordinated debt securities of Donaldson, Lufkin & Jenrette, Inc. and
Guarantees by Donaldson, Lufkin & Jenrette, Inc. of preferred securities
issued by DLJ Capital Trust I, II, III and IV.
The complete Prospectus for the offering of the debt securities (both
senior and subordinated) and preferred stock of Donaldson, Lufkin & Jenrette,
Inc. follows immediately after this Explanatory Note, which is then
immediately followed by the complete Prospectus for the offering of the
preferred securities of DLJ Capital Trust I, II, III and IV, the junior
subordinated debt securities of Donaldson, Lufkin & Jenrette, Inc. and
Guarantees by Donaldson, Lufkin & Jenrette, Inc. of preferred securities
issued by DLJ Capital Trust I, II, III and IV. Following such Prospectuses
are certain portions of such Prospectuses relating to the market-making
transactions, which include an alternative front and back cover page, an
alternate "Use of Proceeds" section and an alternate "Plan of Distribution"
section. All other sections of the respective Prospectus for the initial sale
of the debt securities and preferred stock of Donaldson, Lufkin & Jenrette,
Inc. or the preferred securities of DLJ Capital Trust I, II, III and IV, the
junior subordinated debt securities of Donaldson, Lufkin & Jenrette, Inc. and
Guarantees by Donaldson, Lufkin & Jenrette, Inc. of preferred securities
issued by DLJ Capital Trust I, II, III and IV, are to be used in the
respective Prospectus relating to the market-making transactions.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 15, 1996
PROSPECTUS SUPPLEMENT
, 1996
(TO PROSPECTUS DATED , 1996)
PREFERRED SECURITIES
DLJ CAPITAL TRUST I
% PREFERRED TRUST SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
DONALDSON, LUFKIN & JENRETTE, INC.
The % Preferred Trust Securities (the "Preferred Securities") offered
hereby represent preferred undivided beneficial interests in the assets of
DLJ Capital Trust I, a statutory business trust formed under the laws of the
State of Delaware (the "Trust"). Donaldson, Lufkin & Jenrette, Inc., a
Delaware corporation (the "Company"), will directly or indirectly own all the
common securities (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities") representing common undivided beneficial
interests in the assets of the Trust. The Trust exists for the sole purpose
of issuing the Preferred Securities and Common Securities and investing the
proceeds thereof in an equivalent amount of % Junior Subordinated Debentures
due 2046 of the Company ("Junior Subordinated Debentures").
(continued on next page)
Application has been made to list the Preferred Securities on the New York
Stock Exchange, Inc. (the "NYSE"). If so approved, trading of the Preferred
Securities on the New York Stock Exchange is expected to commence within a 30
day period after the initial delivery of the Preferred Securities. See
"Underwriting."
SEE "RISK FACTORS" BEGINNING ON PAGE S-4 FOR A DISCUSSION OF CERTAIN
FACTORS RELATING TO THE PREFERRED SECURITIES THAT SHOULD BE CONSIDERED BY
INVESTORS, INCLUDING THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH
PAYMENTS ON THE JUNIOR SUBORDINATED DEBENTURES AND THE PREFERRED SECURITIES
MAY BE DEFERRED AND THE RELATED FEDERAL INCOME TAX CONSEQUENCES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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INITIAL PUBLIC PROCEEDS TO DLJ
OFFERING UNDERWRITING CAPITAL TRUST I
PRICE(1) COMMISSION(2) (3)(4)
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Per Preferred Security $25.00 (3) $25.00
Total(5) ............... (3)
</TABLE>
(1) Plus accrued distributions, if any, from , 1996.
(2) The Company has agreed to indemnify the several Underwriters against
certain liabilities, including liabilities under the Securities Act of
1933, as amended. See "Underwriting."
(3) In view of the fact that the proceeds of the sale of the Preferred
Securities will be invested in Junior Subordinated Debentures, the
Company has agreed to pay to the Underwriters as compensation
("Underwriters' Compensation") for their arranging the investment
therein of such proceeds, $ per Preferred Security (or $ in the
aggregate). See "Underwriting."
(4) Expenses of the offering which are payable by the Company are estimated
to be $ .
(5) The Trust and the Company have granted to the Underwriters an option,
exercisable within 30 days of the date hereof, to purchase up to
additional Preferred Securities at the Initial Public Offering Price
for the purpose of covering overallotments, if any. If such option is
exercised in full, the total Initial Public Offering Price,
Underwriting Commission and Proceeds to DLJ Capital Trust I will be
$ , $ and $ , respectively.
The Preferred Securities offered hereby are being offered by the several
Underwriters, subject to prior sale, when, as and if delivered to and
accepted by them and subject to various prior conditions, including their
rights to reject orders in whole or in part. See "Underwriting" herein. It is
expected that the Preferred Securities will be ready for delivery in
book-entry form only through the facilities of the Depository Trust Company
of New York on or about , 1996, against payment therefor in immediately
available funds.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
<PAGE>
(Continued from previous page)
The Preferred Securities and the Common Securities will rank pari passu
with each other and will have equivalent terms; provided that (i) if an Event
of Default (as defined herein) under the Declaration (as defined herein)
occurs and is continuing, the holders of Preferred Securities will have a
priority over holders of the Common Securities with respect to payments in
respect of distributions and payments upon liquidation, redemption or
otherwise and (ii) holders of Common Securities have the exclusive right
(subject to the terms of the Declaration) to appoint, replace or remove
Trustees (as defined in the accompanying Prospectus) and to increase or
decrease the number of Trustees.
Holders of the Preferred Securities will be entitled to receive cumulative
cash distributions at an annual rate of % of the liquidation amount of $25
per Preferred Security, accruing from the date of original issuance of the
Preferred Securities and payable monthly, in arrears, on the last day of each
month, commencing on ("distributions"). Cash distributions in arrears
for more than one month will bear interest thereon at the rate per annum of
% of the stated liquidation amount of $25 per Preferred Security (to the
extent permitted by applicable law), compounded monthly. The term
"distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. The distribution rate and the
distribution and other payment dates for the Preferred Securities will
correspond to the interest rate and the interest and other payment dates on
the Junior Subordinated Debentures deposited in the Trust as trust assets. If
principal or interest is not paid on the Junior Subordinated Debentures,
including as a result of the Company's election to extend the interest
payment period on the Junior Subordinated Debentures as described below, the
Trust will not make payments on the Trust Securities. The Junior Subordinated
Debentures provide that, so long as the Company shall not be in default in
the payment of interest on the Junior Subordinated Debentures, the Company
shall have the right to defer payments of interest on the Junior Subordinated
Debentures by extending the interest payment period from time to time for a
period not exceeding 60 consecutive monthly interest periods (each, an
"Extension Period"). No interest shall be due and payable during an Extension
Period and, as a consequence, distributions on the Trust Securities will also
be deferred, but at the end of such Extension Period the Company shall pay
all interest then accrued and unpaid on the Junior Subordinated Debentures,
together with interest thereon at the rate specified for the Junior
Subordinated Debentures to the extent permitted by applicable law, compounded
monthly ("Compounded Interest"). All references herein to interest shall
include Compounded Interest unless otherwise stated. There could be multiple
Extension Periods of varying lengths throughout the term of the Junior
Subordinated Debentures, not to exceed 60 consecutive months or to cause any
extension beyond the maturity of the Junior Subordinated Debentures. During
any such Extension Period, the Company may not declare or pay dividends on,
or redeem, purchase, acquire or make a distribution or liquidation payment
with respect to, any of its common stock or preferred stock; provided that
(i) the Company will be permitted to pay accrued dividends upon the exchange
or redemption of any series of preferred stock of the Company as may be
outstanding from time to time, in accordance with the terms of such stock,
and (ii) the foregoing will not apply to any stock dividends paid by the
Company. See "Risk Factors--Option to Extend Interest Payment Period; Tax
Impact of Extension"; "Description of the Junior Subordinated
Debentures--Interest" and "--Option to Extend Interest Payment Period."
The payment of distributions out of moneys held by the Property Trustee
(as defined in the accompanying Prospectus) and payments on liquidation of
the Trust and the redemption of Preferred Securities, as set forth below, are
guaranteed by the Company on a subordinated basis as and to the extent
described herein (the "Preferred Securities Guarantee"). See "Description of
the Preferred Securities Guarantee" in the accompanying Prospectus. The
Preferred Securities Guarantee is a full and unconditional guarantee from the
time of issuance of the Preferred Securities, but the Preferred Securities
Guarantee covers distributions and other payments on the Preferred Securities
only if and to the extent that the Company has made a payment to the Property
Trustee of interest or principal on the Junior Subordinated Debentures
deposited in the Trust as trust assets. The obligations of the Company under
the Preferred Securities Guarantee are subordinate and junior in right of
payment to all other liabilities of the
S-2
<PAGE>
(Continued from previous page)
Company, including Junior Subordinated Debt Securities (as defined in the
accompanying Prospectus) and senior to all capital stock now or hereafter
issued by the Company and to any guarantee now or hereafter entered into by
the Company in respect of its capital stock. The obligations of the Company
under the Junior Subordinated Debentures are subordinate and junior in right
of payment to all present and future Senior Indebtedness (as defined in the
accompanying Prospectus). Because the Company is a holding company, the
Junior Subordinated Debentures (and the Company's obligations under the
Preferred Securities Guarantee) are also effectively subordinated to all
existing and future liabilities, including trade payables, of the Company's
subsidiaries, except to the extent that the Company is a creditor of the
subsidiaries recognized as such.
The Junior Subordinated Debentures are redeemable by the Company (in whole
or in part) from time to time, on or after , 2001 or at any time in
certain circumstances upon the occurrence of a Tax Event (as defined herein).
If the Company redeems Junior Subordinated Debentures, the Trust must redeem
Trust Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Junior Subordinated Debentures so redeemed
at $25 per Trust Security plus accrued and unpaid distributions thereon (the
"Redemption Price") to the date fixed for redemption. See "Description of the
Preferred Securities--Mandatory Redemption." The Preferred Securities will be
redeemed upon maturity of the Junior Subordinated Debentures. The Junior
Subordinated Debentures mature on , 2046. In addition, upon the
occurrence of a Special Event (as defined herein) arising from a change in
law or a change in legal interpretation, unless the Junior Subordinated
Debentures are redeemed in the limited circumstances described below, the
Trust shall be dissolved with the result that the Junior Subordinated
Debentures will be distributed to the holders of the Preferred Securities, on
a pro rata basis, in lieu of any cash distribution. In the case of a Special
Event that is a Tax Event, the Company will have the right in certain
circumstances to redeem the Junior Subordinated Debentures, which would
result in the redemption by the Trust of the Trust Securities in the same
amount on a pro rata basis. If the Junior Subordinated Debentures are
distributed to the holders of the Preferred Securities, the Company will use
its best efforts to have the Junior Subordinated Debentures listed on the New
York Stock Exchange or on such other exchange as the Preferred Securities are
then listed. See "Description of the Preferred Securities--Special Event
Redemption or Distribution" and "Description of the Junior Subordinated
Debentures."
In the event of the voluntary or involuntary dissolution, winding up or
termination of the Trust, the holders of the Preferred Securities will be
entitled to receive, for each Preferred Security, a liquidation amount of $25
plus accrued and unpaid distributions thereon (including interest thereon) to
the date of payment, unless in connection with such dissolution, the Junior
Subordinated Debentures are distributed to the holders of the Preferred
Securities. See "Description of the Preferred Securities--Liquidation
Distribution Upon Dissolution."
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
S-3
<PAGE>
RISK FACTORS
Prospective purchasers of Preferred Securities should carefully review the
information contained elsewhere in this Prospectus Supplement and in the
accompanying Prospectus and should particularly consider the following
matters:
RANKING OF SUBORDINATED OBLIGATIONS UNDER PREFERRED SECURITIES GUARANTEE AND
JUNIOR SUBORDINATED DEBENTURES; DEPENDENCE ON THE COMPANY
The obligations of the Company under the Junior Subordinated Debentures
are unsecured obligations of the Company and will be subordinate and junior
in right of payment to Senior Indebtedness of the Company but senior to its
capital stock. The Company's obligations under the Preferred Securities
Guarantee are unsecured and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Company, including the Junior
Subordinated Debentures, except those made pari passu or subordinate by their
terms, and (ii) senior to all capital stock now or hereafter issued by the
Company and to any guarantee now or hereafter entered into by the Company in
respect of its capital stock. Because the Company is a holding company, the
Junior Subordinated Debentures (and the Company's obligations under the
Preferred Securities Guarantee) are also effectively subordinated to all
existing and future liabilities, including trade payables, of the Company's
subsidiaries, except to the extent that the Company is a creditor of the
subsidiaries recognized as such. There are no terms in the Preferred
Securities, the Junior Subordinated Debentures or the Preferred Securities
Guarantee that limit the Company's ability to incur additional indebtedness,
including indebtedness that ranks senior to or pari passu with the Junior
Subordinated Debentures and the Preferred Securities Guarantee, or the
ability of its subsidiaries to incur additional indebtedness. See
"Description of the Preferred Securities Guarantees--Status of the Preferred
Securities Guarantees" and "Description of the Junior Subordinated Debt
Securities--Subordination" in the accompanying Prospectus.
The Trust's ability to make distributions and other payments on the
Preferred Securities is solely dependent upon the Company making interest and
other payments on the Junior Subordinated Debentures deposited as trust
assets as and when required. If the Company were not to make distributions or
other payments on the Junior Subordinated Debentures for any reason,
including as a result of the Company's election to defer the payment of
interest on the Junior Subordinated Debentures by extending the interest
period on the Junior Subordinated Debentures, the Trust will not make
payments on the Trust Securities. In such an event, holders of the Preferred
Securities would not be able to rely on the Preferred Securities Guarantee
since distributions and other payments on the Preferred Securities are
subject to such Guarantee only if and to the extent that the Company has made
a payment to the Property Trustee of interest or principal on the Junior
Subordinated Debentures deposited in the Trust as trust assets. Instead,
holders of Preferred Securities would rely on the enforcement by the Property
Trustee of its rights as registered holder of the Junior Subordinated
Debentures against the Company pursuant to the terms of the Indenture.
However, if the Trust's failure to make distributions on the Preferred
Securities is a consequence of the Company's exercise of its right to extend
the interest payment period for the Junior Subordinated Debentures, the
Property Trustee will have no right to enforce the payment of distributions
on the Preferred Securities until an Event of Default under the Declaration
shall have occurred. The Company's obligations under the Preferred Securities
Guarantee are subordinate and junior in right of payment to all other
liabilities of the Company, including the Junior Subordinated Debentures,
except those made pari passu or subordinate by their terms to the Preferred
Securities Guarantee and senior to its capital stock or to any guarantee of
the Company in respect of its capital stock.
The Declaration provides that the Company shall pay for all debts and
obligations (other than with respect to the Trust Securities) and all costs
and expenses of the Trust, including any taxes and all costs and expenses
with respect thereto, to which the Trust may become subject, except for
United States withholding taxes. No assurance can be given that the Company
will have sufficient resources to enable it to pay such debts, obligations,
costs and expenses on behalf of the Trust.
S-4
<PAGE>
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX IMPACT OF EXTENSION
So long as the Company shall not be in default in the payment of interest
on the Junior Subordinated Debentures, the Company has the right under the
Indenture to defer payments of interest on the Junior Subordinated Debentures
by extending the interest payment period from time to time on the Junior
Subordinated Debentures for an Extension Period not exceeding 60 consecutive
monthly interest periods, during which no interest shall be due and payable.
In such an event, monthly distributions on the Preferred Securities would not
be made (but would continue to accrue with interest thereon at the rate of
% per annum, compounded monthly) by the Trust during any such Extension
Period. If the Company exercises the right to extend an interest payment
period, the Company may not during such Extension Period declare or pay
dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock; provided that (i) the Company will be permitted to pay accrued
dividends upon the exchange or redemption of any series of preferred stock of
the Company as may be outstanding from time to time, in accordance with the
terms of such stock and (ii) the foregoing will not apply to stock dividends
paid by the Company. As of June 30, 1996, the Company had 2,250,000 Shares of
Cumulative Exchangeable $8.83 Preferred Stock outstanding. Each holder of
Cumulative Exchangeable Preferred Stock is entitled to receive when, as and
if it is declared by the Board of Directors, out of funds legally available
therefor, cumulative cash dividends of $8.83 per share per annum, payable
quarterly in arrears. Subject to certain conditions, after October 15, 1996,
the Company may exchange the Cumulative Exchangeable $8.83 Preferred Stock
for an equal principal amount of subordinated notes of the Company bearing a
rate of interest of 9.58% per annum and having the same redemption provisions
as the Cumulative Exchangeable $8.83 Preferred Stock (as described under
"Description of Capital Stock" in the accompanying Prospectus.) The Company
is required to redeem all outstanding shares of the Cumulative Exchangeable
$8.83 Preferred Stock on October 15, 2003 and may redeem such Preferred Stock
in whole or in part at any time at its option in certain circumstances.
Prior to the termination of any Extension Period, the Company may further
extend such Extension Period; provided that such Extension Period together
with all such previous and further extensions thereof may not exceed 60
consecutive monthly interest periods. Upon the termination of any Extension
Period and the payment of all amounts then due, the Company may commence a
new Extension Period, subject to the above requirements. The Company may also
prepay at any time all or any portion of the interest accrued during an
Extension Period. Consequently, there could be multiple Extension Periods of
varying lengths throughout the term of the Junior Subordinated Debentures,
not to exceed 60 consecutive months or to cause any extension beyond the
maturity of the Junior Subordinated Debentures. See "Description of the
Preferred Securities--Distributions" and "Description of the Junior
Subordinated Debentures--Option to Extend Interest Payment Period."
Because the Company has the right to extend the interest payment period
for an Extension Period of up to 60 consecutive monthly interest periods on
various occasions, it is more likely than not that the Junior Subordinated
Debentures will be treated as issued with "original issue discount" for
United States Federal income tax purposes and the Company intends to take
that position in filing related information returns. As a result, holders of
Preferred Securities will be required to include their pro rata share of
original issue discount in gross income as it accrues for United States
Federal income tax purposes in advance of the receipt of cash. Generally, all
of a securityholder's taxable interest income with respect to the Junior
Subordinated Debentures will be accounted for as "original issue discount"
and actual distributions of stated interest will not be separately reported
as taxable income. See "Taxation--Accrual of Original Issue Discount and
Premium" and "--Potential Extension of Payment Period on the Junior
Subordinated Debentures."
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence and during the continuation of a Tax Event or
Investment Company Event (each as defined herein), which may occur at any
time, the Trust shall, unless the Junior Subordinated Debentures are redeemed
in the limited circumstances described below, be dissolved with the result
that, in the manner described in "Description of the Preferred
Securities--Liquidation Distribution Upon
S-5
<PAGE>
Dissolution," Junior Subordinated Debentures having an aggregate principal
amount equal to the aggregate stated liquidation amount of, and bearing
accrued and unpaid distributions on, the Preferred Securities and Common
Securities would be distributed on a Pro Rata Basis (as defined under "The
DLJ Trusts" in the accompanying Prospectus) to the holders of the Preferred
Securities and Common Securities in liquidation of the Trust. In the case of
a Tax Event, in certain circumstances, the Company shall have the right to
redeem at any time the Junior Subordinated Debentures, in whole or in part,
in which event the Trust will redeem Preferred Securities and Common
Securities on a Pro Rata Basis to the same extent as the Junior Subordinated
Debentures are redeemed. There can be no assurance as to the market prices
for Preferred Securities or the Junior Subordinated Debentures which may be
distributed in exchange for Preferred Securities if a dissolution and
liquidation of the Trust were to occur. Accordingly, the Preferred Securities
that an investor may purchase, or the Junior Subordinated Debentures that the
investor may receive on dissolution and liquidation of the Trust, may trade
at a discount to the price that the investor paid to purchase the Preferred
Securities offered hereby. Because holders of Preferred Securities may
receive Junior Subordinated Debentures upon the occurrence of a Special
Event, prospective purchasers of Preferred Securities are also making an
investment decision with regard to the Junior Subordinated Debentures and
should carefully review all the information regarding the Junior Subordinated
Debentures contained herein and in the accompanying Prospectus. See
"Description of the Preferred Securities--Special Event Redemption or
Distribution" and "Description of the Junior Subordinated
Debentures--General."
If enacted in their present form, certain legislative proposals in the
Revenue Reconciliation Bill of 1996 (the "Bill") would prevent the Company
from deducting interest on the Junior Subordinated Debentures. The Bill as
proposed would be effective generally for instruments issued on or after
December 7, 1995. However, on March 29, 1996, the Chairmen of the Senate
Finance and House Ways and Means Committees issued a joint statement to the
effect that it was their intention that the effective date of the President's
legislative proposals, if adopted, will be no earlier than the date of
appropriate Congressional action. There can be no assurance, however, that
current or future legislative proposals if enacted would not prevent the
Company from deducting interest on the Junior Subordinated Debentures. This
would constitute a Tax Event and could result in the distribution of the
Junior Subordinated Debentures to holders of the Preferred Securities or, in
certain circumstances, the redemption of such securities by the Company and
the distribution of the resulting cash in redemption of the Preferred
Securities. See "Description of the Preferred Securities--Special Event
Redemption or Distribution."
Under current United States Federal income tax law, a distribution of the
Junior Subordinated Debentures upon a Tax Event or Investment Company Event
would not be a taxable event to holders of the Preferred Securities. See
"Taxation--Distribution of Junior Subordinated Debentures to Holders of
Preferred Securities."
LIMITING VOTING RIGHTS
Holders of Preferred Securities will have limited voting rights, but will
not be able to appoint, remove or replace, or to increase or decrease the
number of, Trustees, which rights are vested exclusively in the Common
Securities.
LISTING OF PREFERRED SECURITIES; TRADING PRICES
The Preferred Securities constitute a new issue of securities with no
established trading market. While application has been made to list the
Preferred Securities on the NYSE, there can be no assurance that an active
market for the Preferred Securities will develop or be sustained in the
future on such exchange. Although Donaldson, Lufkin & Jenrette Securities
Corporation has indicated to the Company and the Trust that it intends to
make a market in the Preferred Securities as permitted by applicable laws and
regulations prior to the commencement of trading on the NYSE, it is not
obligated to do so and may discontinue any such market-making at any time
without notice. Accordingly, no assurance can be given as to the liquidity
of, or trading markets for, the Preferred Securities.
The Preferred Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying
Junior Subordinated Debentures. A holder who disposes
S-6
<PAGE>
of his Preferred Securities between record dates for payments of
distributions thereon will be required to include accrued but unpaid interest
on the Junior Subordinated Debentures through the date of disposition in
income as ordinary income, and to add such amount to his adjusted tax basis
in his pro rata share of the underlying Junior Subordinated Debentures deemed
disposed of. Accordingly, such a holder will recognize a capital loss to the
extent the selling price (which may not fully reflect the value of accrued
but unpaid interest) is less than the holder's adjusted tax basis (which will
include accrued but unpaid interest). Subject to certain limited exceptions,
capital losses cannot be applied to offset ordinary income for United States
Federal income tax purposes. See "Taxation--Accrual of Original Issue
Discount and Premium" and "--Disposition of the Preferred Securities."
POTENTIAL MARKET VOLATILITY DURING EXTENSION PERIOD
As described above, the Company has the right to extend an interest
payment period on the Junior Subordinated Debentures from time to time for a
period not exceeding 60 consecutive monthly interest periods. If the Company
determines to extend an interest payment period, or if the Company thereafter
extends an Extension Period or prepays interest accrued during an Extension
Period as described above, the market price of the Preferred Securities is
likely to be affected. In addition, as a result of such rights, the market
price of the Preferred Securities (which represent an undivided interest in
Junior Subordinated Debentures) may be more volatile than other securities on
which original issue discount accrues that do not have such rights. A holder
that disposes of its Preferred Securities during an Extension Period,
therefore, may not receive the same return on its investment as a holder that
continues to hold its Preferred Securities. See "Description of the Junior
Subordinated Debentures--Option to Extend Interest Payment Period."
S-7
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial information is qualified by
reference to and should be read in conjunction with, the Company's
Consolidated Financial Statements and the Notes thereto and "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
included in the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995 (the "Form 10-K"), which is incorporated by reference
in the accompanying Prospectus. The selected consolidated statement of income
data for the years ended December 31, 1993, 1994 and 1995 and the selected
consolidated statement of financial condition data as of December 31, 1994
and 1995 are derived from the Company's audited Consolidated Financial
Statements which are incorporated by reference herein. The selected unaudited
financial information as of and for the six months ended June 30, 1995 and
1996 should be read in conjunction with the Company's audited Consolidated
Financial Statements and Notes thereto contained in the Form 10-K and the
Company's unaudited Consolidated Financial Statements and Notes thereto
contained in Company's quarterly report on Form 10-Q for the quarter ended
June 30, 1996 (the "Form 10-Q"), which report is also incorporated by
reference in the accompanying Prospectus. Such unaudited information
reflects, in the opinion of management, all adjustments, consisting of normal
recurring adjustments which the Company considers necessary for a fair
presentation of its financial position and results of operations for these
periods. Operating results for the six months ended June 30, 1996 are not
necessarily indicative of the results that may be expected for the entire
year ending December 31, 1996. The selected consolidated statement of
financial condition data as of December 31, 1991, 1992, 1993 and the selected
consolidated statement of income data for the years ended December 31, 1991
and 1992 are derived from the audited Consolidated Financial Statements of
the Company which are not included or incorporated by reference in the
accompanying Prospectus.
S-8
<PAGE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
----------------------------------------------------- --------------------
1991 1992 1993 1994 1995 1995 1996
--------- --------- --------- --------- --------- --------- ---------
(IN MILLIONS, EXCEPT PER SHARE DATA AND FINANCIAL RATIOS)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues:
Commissions .................... $ 257.9 $ 289.7 $ 358.8 $ 376.1 $ 460.2 $ 225.0 $ 299.1
Underwritings .................. 170.9 350.3 574.6 261.1 441.5 171.2 391.0
Fees ........................... 166.2 158.1 211.3 281.3 369.1 173.5 184.7
Interest-net(1) ................ 323.0 381.7 657.3 791.9 904.1 423.6 481.9
Principal transactions-net:
Trading ........................ 264.2 272.0 381.5 165.7 364.9 154.9 275.0
Investment ..................... 17.3 195.9 79.9 97.6 163.7 99.1 111.1
Other ........................... 15.1 16.4 21.9 35.0 55.1 26.4 24.3
--------- --------- --------- --------- --------- --------- ---------
Total Revenues ................ 1,214.6 1,664.1 2,285.3 2,008.7 2,758.6 1,273.7 1,767.1
--------- --------- --------- --------- --------- --------- ---------
Costs and Expenses:
Compensation and benefits ...... 567.9 886.6 1,200.4 897.8 1,261.4 598.1 809.0
Compensation expense--restricted
stock units ................... -- -- -- -- 6.2 -- --
Interest ....................... 236.4 212.3 381.7 503.8 680.6 308.9 352.5
Other expenses ................. 321.3 320.2 401.2 402.1 511.9 234.2 339.8
--------- --------- --------- --------- --------- --------- ---------
Total costs and expenses ...... 1,125.6 1,419.1 1,983.3 1,803.7 2,460.1 1,141.2 1,501.3
--------- --------- --------- --------- --------- --------- ---------
Income before provision for
income taxes ................... 89.0 245.0 302.0 205.0 298.5 132.5 265.8
Provision for income taxes ...... 31.2 98.0 115.9 82.0 119.4 53.0 103.7
--------- --------- --------- --------- --------- --------- ---------
Net income ...................... $ 57.8 $ 147.0 $ 186.1 $ 123.0 $ 179.1 $ 79.5 $ 162.1
--------- --------- --------- --------- --------- --------- ---------
Dividends on preferred stock .... -- -- -- $ 21.0 $ 19.9 $ 9.9 $ 9.9
--------- --------- --------- --------- --------- --------- ---------
Earnings applicable to common
stock .......................... $ 57.8 $ 147.0 $ 186.1 $ 102.0 $ 159.2 $ 69.6 $ 152.2
========= ========= ========= ========= ========= ========= =========
Weighted average common shares
outstanding(2) ................. 51.7 59.8
========= =========
Earnings per common share(2) .... $ 3.08 $ 2.54
========= =========
Pro forma weighted average common
shares(3) ...................... 51.5 51.5
========= =========
Pro forma earnings per common
share(3) ....................... $ 1.98 $ 1.35
========= =========
</TABLE>
S-9
<PAGE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
-------------------------------------------------------------- ------------------------
1991 1992 1993 1994 1995 1995 1996
----------- ----------- ----------- ----------- ----------- ----------- -----------
(IN MILLIONS, EXCEPT PER SHARE DATA AND FINANCIAL RATIOS)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (AT END
OF PERIOD):
Securities purchased under
agreements to resell and
securities borrowed ..... $10,942.5 $14,378.4 $21,575.2 $19,166.9 $27,793.1 $26,750.8 $29,872.7
Total assets ............. 18,721.7 24,436.2 38,766.7 33,261.6 44,576.5 42,417.1 47,746.6
Securities sold under
agreements to repurchase
and securities loaned ... 11,200.8 14,732.4 24,116.7 20,385.4 29,369.0 27,895.9 29,703.2
Long-term borrowings ..... 268.1 478.6 549.0 539.9 958.9 723.1 1,103.9
Preferred stock .......... -- -- 225.0 225.0 225.0 225.0 225.0
Stockholders' equity ..... 340.3 454.6 750.3 820.3 1,198.7 873.6 1,337.5
OTHER FINANCIAL DATA (AT
END OF PERIOD):
Book value per common
share outstanding ....... $ 6.81 $ 9.09 $ 15.01 $ 16.41 $ 20.50 $ 17.47 $ 22.89
Ratio of net assets to
stockholders' equity (4) 22.86x 22.12x 22.91x 17.18x 14.00x 17.93x 13.36x
Ratio of long-term
borrowings to total
capitalization (5) ...... 0.42x 0.51x 0.34x 0.30x 0.37x 0.35x 0.41x
Return on average equity
(6) ..................... 18.2% 36.8% 30.5% 13.1% 17.1% 16.4% 24.1%
Pre-tax profit margin (7) 9.1% 16.9% 15.9% 13.6% 14.4% 13.7% 18.8%
After-tax profit margin
(7) ..................... 5.9% 10.1% 9.8% 8.2% 8.6% 8.2% 11.5%
Ratio of earnings to fixed
charges (8) ............. 1.07x 1.21x 1.20x 1.10x 1.11x 1.10x 1.20x
Ratio of earnings to
combined fixed charges
and preferred stock
dividends (9) ........... -- -- -- 1.09x 1.10x 1.09x 1.19x
</TABLE>
- ------------
(1) Interest is net of interest expense to finance U.S. government and
agency instruments of $1,008.0 million, $918.4 million, $1,083.6
million, $1,612.8 million, $2,109.2 million, $977.9 million and $991.3
million, respectively.
(2) Earnings per common share has been calculated by dividing earnings
applicable to common share (net income less preferred dividends) by the
weighted average number of common shares and common share equivalents
outstanding. Common share equivalents include shares of common stock
issuable under the Restricted Stock Unit Plan and the dilutive effect
of options under the treasury stock method. Weighted average common
shares outstanding are the same for both primary and fully diluted
earnings per common shares. Earnings per common share prior to 1994
were not presented because the amounts would not be meaningful.
(3) Pro forma earnings per common share are calculated by dividing earnings
applicable to common shares (net income less preferred dividends) by
the pro forma weighted average common shares and common share
equivalents outstanding. Pro forma common shares outstanding represent
actual historical shares outstanding adjusted for the dilutive effect
of the Restricted Stock Units ("RSUs") using the treasury stock method.
(4) Net assets excludes securities purchased under agreements to resell and
securities borrowed.
(5) Long-term borrowings and total capitalization (the sum of long-term
borrowings, preferred stock and stockholders' equity) exclude current
maturities of long-term borrowings.
(6) After payment of dividends on the Company's Cumulative Exchangeable
$8.83 Preferred Stock.
(7) Based on net revenues.
(8) For the purpose of calculating the ratio of earnings to fixed charges
(i) earnings consist of income before provision for income taxes and
fixed charges and (ii) fixed charges consist of interest expense and
one-third of rental expense which is deemed representative of an
interest factor.
(9) For the purpose of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends (i) earnings consist of income
before the provision for income taxes and fixed charges and (ii) fixed
charges consist of interest expense and one-third of rental expense
which is deemed representative of an interest factor. No preferred
dividends were paid until 1994.
S-10
<PAGE>
THE FOLLOWING INFORMATION CONCERNING THE COMPANY, DLJ CAPITAL TRUST I, THE
PREFERRED SECURITIES, THE PREFERRED SECURITIES GUARANTEE AND THE JUNIOR
SUBORDINATED DEBENTURES IS IN ADDITION TO, AND SHOULD BE READ IN CONJUNCTION
WITH, THE INFORMATION CONTAINED IN THE ACCOMPANYING PROSPECTUS. CAPITALIZED
TERMS USED IN THIS PROSPECTUS SUPPLEMENT HAVE THE SAME MEANINGS AS IN THE
ACCOMPANYING PROSPECTUS.
THE COMPANY
The Company is a leading integrated investment and merchant bank that
serves institutional, corporate, governmental and individual clients. The
Company's businesses include securities underwriting, sales and trading;
merchant banking; financial advisory services; investment research;
correspondent brokerage services; and asset management. While results have
fluctuated from year to year, for the years 1991 through 1995, the Company's
total revenues and net income increased by a compound annual growth rate of
22.8% and 32.7%, respectively. The Company's average annual after-tax return
on common equity for the past five years was 23.1%. At June 30, 1996, the
Company had total assets of $47.7 billion and total stockholders' equity of
$1.3 billion.
The Company's principal strategy is to focus its resources on certain core
businesses where management believes the Company can compete profitably and
be among the leading participants in each targeted market. Over the past
several years, the Company has significantly expanded the scope of its
business activities and its customer base, both in the U.S. and
internationally. It has established strong positions in selected high-margin
activities, including equity and high-yield corporate securities underwriting
as well as merchant banking, and has increased its market share in a broad
range of businesses. Key elements of this expansion have been the Company's
recruitment of experienced professionals during periods of turmoil in the
securities industry, the continued development and retention of the Company's
existing personnel at all levels and the continuity of senior management. In
addition, the Company has historically emphasized economic and investment
research in the development of its business and believes that its commitment
to research has been an important contributor to its success.
The Company conducts its business through three principal operating
groups, each of which is an important contributor to revenues and earnings:
the Banking Group, which includes the Company's Investment Banking, Merchant
Banking and Emerging Markets groups; the Capital Markets Group, consisting of
the Company's institutional debt and equity businesses as well as Sprout, its
venture capital affiliate; and the Financial Services Group, comprised of its
Pershing clearing division, high-net-worth retail brokerage and asset
management businesses.
The Company's Banking Group is a major participant in the raising of
capital and the providing of financial advice to companies throughout the
U.S. and has significantly expanded its activities abroad. Through its
Investment Banking group, the Company manages and underwrites public
offerings of securities, arranges private placements and provides advisory
and other services in connection with mergers, acquisitions, restructurings
and other financial transactions. Since 1991, the Investment Banking group
has raised over $190.0 billion for clients from the public and private
markets in corporate equity and debt securities and has completed over 350
merger and acquisition, restructuring and divesture assignments aggregating
in excess of $89.0 billion. Its Merchant Banking group pursues direct
investments in a variety of areas through a number of investment vehicles
funded with capital provided primarily by institutional investors, the
Company and its employees. Since the Company began investing in leveraged
investments in 1985, it invested over $1.0 billion on behalf of the Company,
its employees and funds it manages in over 50 companies with an aggregate
purchase price of over $19.5 billion and achieved an average annual internal
rate of return substantially in excess of comparable industry benchmarks. The
Emerging Markets group specializes in client advisory services, merchant
banking and the underwriting, sales and trading of securities in Latin
America, Asia and certain other international markets.
The Capital Markets Group encompasses a broad range of activities
including trading, research, origination and distribution of equity and
fixed-income securities, private equity investments and venture capital. Its
focus is primarily client-driven, in contrast to that of many other
securities firms which emphasize proprietary trading, an approach that
reduces the Company's exposure to market volatility. Its
S-11
<PAGE>
Taxable Fixed-Income division provides institutional clients with research,
trading and sales services for a broad range of taxable fixed-income products
including high-yield corporate, investment-grade corporate, U.S. government
and mortgage-backed securities. The Institutional Equities division provides
institutional clients with research, trading and sales services in U.S.
listed and over-the-counter equity securities. The Company's equity sales and
trading capabilities, combined with its research expertise, have contributed
to commission revenues increasing, for the years 1991 through 1995, at a
compound annual growth rate of 15.6%. In addition, the Company's Equity
Derivatives division provides a broad range of equity and index options
products, while Sprout is one of the oldest and largest groups in the private
equity investment and venture capital industry.
The Financial Services Group provides a broad array of services to
individual investors and the financial intermediaries which represent them.
Pershing is a leading provider of correspondent brokerage services, clearing
transactions for over 600 U.S. brokerage firms which collectively maintain
over 1.3 million client accounts. These client accounts held over $143.6
billion of assets at June 30, 1996. During 1995, Pershing accounted for more
than 10% of the daily reported trading volume on the NYSE. In addition,
Pershing's PC Financial Network (Service Mark), a leading on-line discount
broker in the U.S., has experienced significant growth over the past several
years. The Company's Investment Services Group, which consists of
approximately 270 account executives, provides high-net worth individuals and
medium to smaller size institutions with access to the Company's equity and
fixed-income research, trading services and underwriting and has one of the
highest revenues per account executive in the industry. Through Wood,
Struthers & Winthrop Management Corp. and affiliates the Company provides
investment management and trust services primarily to high-net-worth
individual investors and institutions, and at June 30, 1996 had over $4.8
billion in assets under management.
Apart from its three principal operating groups, the Company also
maintains a separate brokerage subsidiary, Autranet, Inc., which provides
institutional investors with research generated by independent originators
that are not affiliated with Wall Street brokerage firms.
Founded in 1959, the Company initially focused on providing in-depth
investment research to institutional investors. In 1970, the Company became
the first member firm of the New York Stock Exchange, Inc. to be owned
publicly. Fifteen years later, the Company was purchased by subsidiaries of
the Equitable Companies Incorporated ("EQ") (EQ and its subsidiaries other
than the Company, collectively, "Equitable"). Equitable, which as of June 30,
1996, owned an approximately 80% interest in the Company following the
Company's initial public offering in October 1995, is a diversified financial
services organization and one of the world's largest investment management
organizations. AXA is EQ's largest stockholder, beneficially owning at June
30, 1996, approximately 60.7% of EQ's outstanding shares of common stock and
$392.2 million stated value of EQ's Series E convertible preferred stock.
S-12
<PAGE>
DLJ CAPITAL TRUST I
DLJ Capital Trust I is a statutory business trust formed on June 19, 1996
under the Delaware Business Trust Act (the "Business Trust Act") pursuant to
a declaration of trust among the Trustees and the Company and the filing of a
certificate of trust with the Secretary of State of the State of Delaware.
Such declaration will be amended and restated in its entirety (as so amended
and restated, the "Declaration") substantially in the form filed as an
exhibit to the Registration Statement of which this Prospectus Supplement and
the accompanying Prospectus form a part, as of the date the Preferred
Securities are initially issued. The Declaration is qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Upon issuance
of the Preferred Securities, the holders thereof will own all of the issued
and outstanding Preferred Securities. The Company will acquire Common
Securities in an amount equal to at least 3% of the total capital of the
Trust and will own, directly or indirectly, all of the issued and outstanding
Common Securities. The Trust exists for the purpose of (a) issuing its Trust
Securities for cash and investing the proceeds thereof in an equivalent
amount of Junior Subordinated Debentures and (b) engaging in such other
activities as are necessary, convenient and incidental thereto. The rights of
the holders of the Trust Securities, including economic rights, rights to
information and voting rights, are as set forth in the Declaration, the
Business Trust Act and the Trust Indenture Act. The Declaration does not
permit the incurrence by the Trust of any indebtedness for borrowed money or
the making of any investment other than in the Junior Subordinated
Debentures. In the Declaration, the Company has agreed to pay for all debts
and obligations (other than with respect to the Trust Securities) and all
costs and expenses of the Trust, including the fees and expenses of the
Trustees and any income taxes, duties and other governmental charges, and all
costs and expenses with respect thereto, to which the Trust may become
subject, except for United States withholding taxes.
S-13
<PAGE>
CAPITALIZATION OF THE COMPANY
The following table sets forth the unaudited consolidated capitalization
of the Company at June 30, 1996, and as adjusted to reflect the application
of the estimated net proceeds from the sale of the Preferred Securities
(assuming no exercise of the Underwriters overallotment option). See "Use of
Proceeds." The table should be read in conjunction with the Company's
consolidated financial statements and notes thereto included in the documents
incorporated by reference herein. See "Incorporation of Certain Documents by
Reference" in the accompanying Prospectus.
<TABLE>
<CAPTION>
JUNE 30, 1996
---------------------------
ACTUAL AS ADJUSTED
(IN THOUSANDS)
<S> <C> <C>
Short-term borrowings .............................................. $1,410,585
============
Long-term borrowings:
Senior Notes ...................................................... $ 496,998
Senior subordinated revolving credit .............................. 250,000
Medium-term notes ................................................. 337,525
Other borrowings .................................................. 19,351
------------
Total long-term borrowings ........................................ 1,103,874
Company-obligated mandatorily redeemable preferred securities of
grantor trusts (1) ................................................ --
Cumulative Exchangeable $8.83 Preferred Stock, at redemption value 225,000
Stockholders' equity:
Common stock ($0.10 par value) 150,000,000 shares authorized;
53,300,000 shares issued and outstanding ......................... 5,330
Restricted stock units; 5,179,147 units authorized, 5,140,205
units
issued and outstanding ........................................... 105,365
Paid-in capital ................................................... 364,791
Retained earnings ................................................. 862,700
Cumulative translation adjustment ................................. (650)
------------
Total stockholders' equity ........................................ 1,337,536
------------
Total capitalization .............................................. $2,666,410
============
</TABLE>
- ------------
(1) As described in this Prospectus Supplement, the sole asset of the Trust
will be the Junior Subordinated Debentures.
S-14
<PAGE>
ACCOUNTING TREATMENT
The financial statements of the Trust will be consolidated with the
Company's financial statements, with the Preferred Securities shown as
Company-obligated mandatorily redeemable preferred securities in grantor
trusts holding junior subordinated debentures of the Company.
USE OF PROCEEDS
The proceeds of the sale of the Preferred Securities will be invested by
the Trust in Junior Subordinated Debentures of the Company. The proceeds from
the issuance of such Junior Subordinated Debentures will be used by the
Company for the reduction of short-term indebtedness, and for general
corporate purposes.
S-15
<PAGE>
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the
Declaration which is qualified under the Trust Indenture Act. The Property
Trustee, The Bank of New York, but not the other Trustees of the Trust, will
act as the indenture trustee for purposes of the Trust Indenture Act. The
terms of the Preferred Securities and the Declaration include those stated in
the Declaration and those made part of the Declaration by the Trust Indenture
Act and the Business Trust Act. The following summarizes the material terms
and provisions of the Preferred Securities and is qualified in its entirety
by reference to, the Declaration, which has been filed as an exhibit to the
Registration Statement of which this Prospectus Supplement forms a part, the
Business Trust Act and the Trust Indenture Act.
GENERAL
The Declaration authorizes the Trust to issue the Preferred Securities,
which represent preferred undivided beneficial interests in the assets of the
Trust, and the Common Securities, which represent common undivided beneficial
interests in the assets of the Trust. All of the Common Securities will be
owned, directly or indirectly, by the Company. The Common Securities and the
Preferred Securities rank pari passu with each other and will have equivalent
terms except that (i) if an Event of Default under the Declaration occurs and
is continuing, the rights of the holders of the Common Securities to payment
in respect of periodic distributions and payments upon liquidation,
redemption or otherwise are subordinated to the rights of the holders of the
Preferred Securities and (ii) holders of Common Securities have the exclusive
right (subject to the terms of the Declaration) to appoint, remove or replace
Trustees and to increase or decrease the number of Trustees. The Declaration
does not permit the issuance by the Trust of any securities or other
evidences of beneficial ownership of, or beneficial interests in, the Trust
other than the Preferred Securities and the Common Securities, the incurrence
of any indebtedness for borrowed money by the Trust or the making of any
investment other than in the Junior Subordinated Debentures. Pursuant to the
Declaration, the Property Trustee will own and hold the Junior Subordinated
Debentures as trust assets for the benefit of the holders of the Preferred
Securities and the Common Securities. The payment of distributions out of
moneys held by the Property Trustee and payments on redemption of the
Preferred Securities or liquidation of the Trust are guaranteed by the
Company on a subordinated basis as and to the extent described under
"Description of the Preferred Securities Guarantees" in the accompanying
Prospectus. The Property Trustee will hold the Preferred Securities Guarantee
for the benefit of holders of the Preferred Securities. The Preferred
Securities Guarantee is a full and unconditional guarantee from the time of
issuance of the Preferred Securities, but the Preferred Securities Guarantee
covers distributions and other payments on the Preferred Securities only if
and to the extent that the Company has made a payment to the Property Trustee
of interest or principal on the Junior Subordinated Debentures deposited in
the Trust as trust assets. See "Voting Rights."
DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at a rate per
annum of % of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears for more than one month will bear interest thereon
at the rate per annum of % of the stated liquidation amount of $25 per
Preferred Security (to the extent permitted by law), compounded monthly. The
term "distributions" as used herein includes any such interest payable unless
otherwise stated. The amount of distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months.
Distributions on the Preferred Securities will be cumulative, will accrue
from the original date of issuance and, except as otherwise described below,
will be payable monthly in arrears on the last day of each month, commencing
on , 1996, but only if, and to the extent that, interest payments are
made in respect of Junior Subordinated Debentures held by the Property
Trustee.
So long as the Company shall not be in default in the payment of interest
on the Junior Subordinated Debentures, the Company has the right under the
Indenture to defer payments of interest on the Junior Subordinated Debentures
by extending the interest payment period from time to time on the Junior
Subordinated Debentures for a period not exceeding 60 consecutive monthly
interest periods and, as a
S-16
<PAGE>
consequence, the Trust would defer monthly distributions on the Preferred
Securities (though such distributions would continue to accrue with interest
thereon at the rate of % per annum, compounded monthly) during any such
Extension Period. If the Company exercises the right to extend an interest
payment period, the Company may not declare or pay dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect
to, any of its common stock or preferred stock during such Extension Period;
provided that (i) the Company will be permitted to pay accrued dividends upon
the exchange or redemption of any series of preferred stock of the Company as
may be outstanding from time to time, in accordance with the terms of such
stock, and (ii) the foregoing will not apply to any stock dividend by the
Company. Prior to the termination of any such Extension Period, the Company
may further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
60 consecutive monthly interest periods. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the above requirements. The
Company may also prepay at any time all or any portion of the interest
accrued during an Extension Period. Consequently, there could be multiple
Extension Periods of varying lengths throughout the term of the Junior
Subordinated Debentures, not to exceed 60 consecutive months or to cause any
extension beyond the maturity of the Junior Subordinated Debentures. See
"Risk Factors" "--Option to Extend Interest Payment Period; Tax Impact of
Extension"; "Description of the Junior Subordinated Debentures--Interest" and
"--Option to Extend Interest Payment Period." Payments of accrued
distributions will be payable to holders of Preferred Securities as they
appear on the books and records of the Trust on the first record date after
the end of an Extension Period.
Distributions on the Preferred Securities must be paid on the dates
payable to the extent that the Property Trustee has cash on hand in the
Property Account to permit such payment. The funds available for distribution
to the holders of the Preferred Securities will be limited to payments
received by the Property Trustee in respect of the Junior Subordinated
Debentures that are deposited in the Trust as trust assets. See "Description
of the Junior Subordinated Debentures." If the Company does not make interest
payments on the Junior Subordinated Debentures, the Property Trustee will not
make distributions on the Preferred Securities. Under the Declaration, if and
to the extent the Company does make interest payments on the Junior
Subordinated Debentures deposited in the Trust as trust assets, the Property
Trustee is obligated to make distributions on the Trust Securities on a Pro
Rata Basis. The payment of distributions on the Preferred Securities is
guaranteed by the Company on a subordinated basis as and to the extent set
forth under "Description of the Preferred Securities Guarantees" in the
accompanying Prospectus. The Preferred Securities Guarantee is a full and
unconditional guarantee from the time of issuance of the Preferred Securities
but the Preferred Securities Guarantee covers distributions and other
payments on the Preferred Securities only if and to the extent that the
Company has made a payment to the Property Trustee of interest or principal
on the Junior Subordinated Debentures deposited in the Trust as trust assets.
Distributions on the Preferred Securities will be made to the holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which, as long as the Preferred Securities remain in book-entry
form, will be one Business Day (as defined herein) prior to the relevant
Distribution payment date. Distributions payable on any Preferred Securities
that are not punctually paid on any Distribution payment date as a result of
the Company having failed to make the corresponding interest payment on the
Junior Subordinated Debentures will forthwith cease to be payable to the
person in whose name such Preferred Security is registered on the relevant
record date, and such defaulted Distribution will instead be payable to the
person in whose name such Preferred Security is registered on the special
record date established by the Regular Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall
not be considered payable on any Distribution payment date falling within an
Extension Period unless the Company has elected to make a full or partial
payment of interest accrued on the Junior Subordinated Debentures on such
Distribution payment date. Distributions on the Preferred Securities will be
paid through the Property Trustee who will hold amounts received in respect
of the Junior Subordinated Debentures in the Property Account for the benefit
of the holders of the Preferred and Common Securities. Subject to any
applicable laws and regulations and the provisions of
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the Declaration, each such payment will be made as described under
"Book-Entry Only Issuance--The Depository Trust Company" below. In the event
that the Preferred Securities do not continue to remain in book-entry form,
the Regular Trustees shall have the right to select relevant record dates
which shall be more than one Business Day prior to the relevant payment
dates. The Declaration provides that the payment dates or record dates for
the Preferred Securities shall be the same as the payment dates and record
dates for the Junior Subordinated Debentures. All distributions paid with
respect to the Trust Securities shall be paid on a Pro Rata Basis to the
holders thereof entitled thereto. If any date on which distributions are to
be made on the Preferred Securities is not a Business Day, then payment of
the distribution to be made on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date. "Business Day" shall mean any day other than Saturday,
Sunday or any other day on which banking institutions in the City of New York
in the State of New York) are permitted or required by any applicable law to
close.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
If, at any time, a Tax Event or an Investment Company Event (each as
hereinafter defined, and each a "Special Event") shall occur and be
continuing, the Trust shall, unless the Junior Subordinated Debentures are
redeemed in the limited circumstances described below, be dissolved with the
result that, after satisfaction of creditors of the Trust, Junior
Subordinated Debentures with an aggregate principal amount equal to the
aggregate stated liquidation amount of the Preferred Securities and the
Common Securities would be distributed on a Pro Rata Basis to the holders of
the Preferred Securities and the Common Securities in liquidation of such
holders' interests in the Trust, within 90 days following the occurrence of
such Special Event; provided, however, that in the case of the occurrence of
a Tax Event, as a condition of such dissolution and distribution, the Regular
Trustees shall have received an opinion of nationally recognized independent
tax counsel experienced in such matters (a "No Recognition Opinion"), which
opinion may rely on any then applicable published revenue rulings of the
Internal Revenue Service, to the effect that the holders of the Preferred
Securities will not recognize any gain or loss for United States Federal
income tax purposes as a result of such dissolution and distribution of
Junior Subordinated Debentures; and, provided, further, that, if at the time
there is available to the Trust the opportunity to eliminate, within such 90
day period, the Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar
reasonable measure, which has no adverse effect on the Trust or the Company
or the holders of the Preferred Securities, the Trust will pursue such
measure in lieu of dissolution. Furthermore, if in the case of the occurrence
of a Tax Event, (i) the Regular Trustees have received an opinion (a
"Redemption Tax Opinion") of nationally recognized independent tax counsel
experienced in such matters that, as a result of a Tax Event, there is more
than an insubstantial risk that the Company would be precluded from deducting
the interest on the Junior Subordinated Debentures for United States Federal
income tax purposes even if the Junior Subordinated Debentures were
distributed to the holders of Preferred Securities and Common Securities in
liquidation of such holders' interests in the Trust as described above or
(ii) the Regular Trustees shall have been informed by such tax counsel that a
No Recognition Opinion cannot be delivered to the Trust, the Company shall
have the right, upon not less than 30 nor more than 60 days notice, to redeem
the Junior Subordinated Debentures in whole or in part for cash within 90
days following the occurrence of such Tax Event, and promptly following such
redemption Preferred Securities and Common Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Junior
Subordinated Debentures so redeemed will be redeemed by the Trust at the
Redemption Price on a Pro Rata Basis; provided, however, that if at the time
there is available to the Company or the Regular Trustees the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some
ministerial action, such as filing a form or making an election, or pursuing
some other similar reasonable measure, which has no adverse effect on the
Trust, the Company or the holders of the Preferred Securities, the Company
will pursue such measure in lieu of redemption and provided further that the
Company shall have no right to redeem the Junior Subordinated Debentures
while the Regular Trustees on behalf of the
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Trust are pursuing any such ministerial action. The Common Securities will
be redeemed on a Pro Rata Basis with the Preferred Securities, except that if
an Event of Default under the Declaration has occurred and is continuing, the
Preferred Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained an opinion
of a nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that on or after the date
of this Prospectus Supplement as a result of (a) any amendment to, or change
in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) any
amendment to, or change in, an interpretation or application of any such laws
or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
effective or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the date of this Prospectus
Supplement, there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the date thereof, subject to United States
Federal income tax with respect to income accrued or received on the Junior
Subordinated Debentures, (ii) the Trust is, or will be within 90 days of the
date thereof, subject to more than a de minimis amount of other taxes, duties
or other governmental charges or (iii) interest payable by the Company to the
Trust on the Junior Subordinated Debentures is not, or within 90 days of the
date thereof will not be, deductible by the Company for United States Federal
income tax purposes.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel experienced
in practice under the Investment Company Act of 1940, as amended (the "1940
Act"), that as a result of the occurrence of a change in law or regulation or
a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), there is more than an insubstantial risk that the
Trust is or will be considered an "investment company" which is required to
be registered under the 1940 Act, which Change in 1940 Act Law becomes
effective on or after the date of this Prospectus Supplement.
On the date fixed for any distribution of Junior Subordinated Debentures,
upon dissolution of the Trust, (i) the Preferred Securities and the Common
Securities will no longer be deemed to be outstanding, (ii) the depositary or
its nominee, as the record holder of the Preferred Securities, will receive a
registered global certificate or certificates representing the Junior
Subordinated Debentures to be delivered upon such distribution, and (iii) any
certificates representing Preferred Securities not held by the depositary or
its nominee will be deemed to represent Junior Subordinated Debentures having
an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
accrued and unpaid interest equal to accrued and unpaid distributions on,
such Preferred Securities, until such certificates are presented to the
Company or its agent for transfer or reissuance.
There can be no assurance as to the market price for the Junior
Subordinated Debentures which may be distributed in exchange for Preferred
Securities if a dissolution and liquidation of the Trust were to occur.
Accordingly, the Junior Subordinated Debentures which the investor may
subsequently receive on dissolution and liquidation of the Trust, may trade
at a discount to the price of the Preferred Securities exchanged. If the
Junior Subordinated Debentures are distributed to the holders of Preferred
Securities upon the dissolution of the Trust, the Company will use its best
efforts to list the Junior Subordinated Debentures on the NYSE or on such
other exchange on which the Preferred Securities are then listed.
MANDATORY REDEMPTION
Upon the repayment of the Junior Subordinated Debentures, whether at
maturity, upon redemption or otherwise, the proceeds from such repayment or
payment will be promptly applied to redeem Preferred Securities and Common
Securities having an aggregate liquidation amount equal to the Junior
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Subordinated Debentures so repaid, upon not less than 30 nor more than 60
days' notice, at the Redemption Price. The Common Securities will be entitled
to be redeemed on a Pro Rata Basis with the Preferred Securities, except that
if an Event of Default under the Declaration has occurred and is continuing,
the Preferred Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price. Subject to the foregoing, if
fewer than all outstanding Preferred Securities and Common Securities are to
be redeemed, the Preferred Securities and Common Securities will be redeemed
on a Pro Rata Basis. In the event fewer than all outstanding Preferred
Securities are to be redeemed, Preferred Securities registered in the name of
and held by DTC or its nominee will be redeemed as described under
"Book-Entry-Only; Delivery and Form" below.
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accrued and unpaid distributions have been paid on all
Preferred Securities for all monthly distribution periods terminating on or
prior to the date of redemption.
If the Trust gives a notice of redemption in respect of Preferred
Securities (which notice will be irrevocable) then, by 12:00 noon, New York
City time, on the redemption date and provided that the Company has paid to
the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Junior Subordinated Debentures, the
Trust will irrevocably deposit with the Depositary funds sufficient to pay
the applicable Redemption Price and will give the Depositary irrevocable
instructions and authority to pay the Redemption Price to the holders of the
Preferred Securities. See "Book-Entry Only Issuance--The Depository Trust
Company." If notice of redemption shall have been given and funds deposited
as required, then, immediately prior to the close of business on the date of
such deposit, distributions will cease to accrue on the Preferred Securities
called for redemption, such Preferred Securities shall no longer be deemed to
be outstanding and all rights of holders of such Preferred Securities so
called for redemption will cease, except the right of the holders of such
Preferred Securities to receive the Redemption Price, but without interest on
such Redemption Price. Neither the Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Preferred
Securities which have been so called for redemption. If any date fixed for
redemption of Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect
of any such delay) except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If the Company fails to repay Junior Subordinated
Debentures on maturity or on the date fixed for this redemption or if payment
of the Redemption Price in respect of Preferred Securities is improperly
withheld or refused and not paid by the Property Trustee or by the Company
pursuant to the Preferred Securities Guarantee described under "Description
of the Preferred Securities Guarantee" in the accompanying Prospectus,
distributions on such Preferred Securities will continue to accrue, from the
original redemption date of the Preferred Securities to the date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
In the event that fewer than all of the outstanding Preferred Securities
are to be redeemed, the Preferred Securities will be redeemed as described
below under "Book-Entry Only Issuance--The Depository Trust Company."
If a partial redemption of the Preferred Securities would result in the
delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, the
Company pursuant to the Indenture will only redeem Debentures in whole and,
as a result, the Trust may only redeem the Preferred Securities in whole.
Subject to the foregoing and applicable law (including, without
limitation, United States Federal securities laws), the Company or any of its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
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LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary dissolution, liquidation,
winding-up or termination of the Trust, the holders of the Preferred
Securities and Common Securities at the date of dissolution, winding-up or
termination of the Trust will be entitled to receive on a Pro Rata Basis
solely out of the assets of the Trust, after satisfaction of liabilities of
creditors (to the extent not satisfied by the Company as provided in the
Declaration), an amount equal to the aggregate of the stated liquidation
amount of $25 per Trust Security plus accrued and unpaid distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution, liquidation,
winding-up or termination, Junior Subordinated Debentures in an aggregate
principal amount equal to the aggregate stated liquidation amount of such
Trust Securities and bearing accrued and unpaid interest in an amount equal
to the accrued and unpaid distributions on such Trust Securities, shall be
distributed on a Pro Rata Basis to the holders of the Preferred Securities
and Common Securities in exchange therefor.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and the Common Securities
shall be paid on a Pro Rata Basis. The holders of the Common Securities will
be entitled to receive distributions upon any such dissolution on a Pro Rata
Basis with the holders of the Preferred Securities, except that if an Event
of Default under the Declaration has occurred and is continuing, the
Preferred Securities shall have a priority over the Common Securities with
respect to payment of the Liquidation Distribution.
Pursuant to the Declaration, the Trust shall terminate: (i) on ,
2046; (ii) when all of the Trust Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been
paid to the holders of Trust Securities in accordance with the terms of the
Trust Securities; or (iii) when all of the Junior Subordinated Debentures
shall have been distributed to the holders of Trust Securities in exchange
for all of the Trust Securities in accordance with the terms of the Trust
Securities.
NO MERGER, CONSOLIDATION OR AMALGAMATION OF THE TRUST
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets to, any
corporation or other entity.
DECLARATION EVENTS OF DEFAULT
An Indenture Event of Default (as defined in the accompanying Prospectus)
will constitute an event of default under the Declaration with respect to the
Trust Securities (an "Event of Default"); provided that pursuant to the
Declaration, the holder of the Common Securities will be deemed to have
waived any such Event of Default with respect to the Common Securities until
all Events of Default with respect to the Preferred Securities have been
cured or waived. Until all such Events of Default with respect to the
Preferred Securities have been so cured or waived, the Property Trustee will
be deemed to be acting solely on behalf of the holders of the Preferred
Securities, and only the holders of the Preferred Securities will have the
right to direct the Property Trustee with respect to certain matters under
the Declaration and consequently under the Indenture. In the event that any
Event of Default with respect to the Preferred Securities is waived by the
holders of the Preferred Securities as provided in the Declaration, the
holders of Common Securities pursuant to the Declaration have agreed that
such waiver also constitutes a waiver of such Event of Default with respect
to the Common Securities for all purposes under the Declaration without any
further act, vote or consent of the holders of the Common Securities. See
"Voting Rights."
Upon the occurrence of an Event of Default, the Property Trustee as the
holder of all of the Junior Subordinated Debentures will have the right under
the Indenture to declare the principal of and interest on the Junior
Subordinated Debentures to be immediately due and payable. In addition, the
Property Trustee will have the power to exercise all rights, powers and
privileges under the Indenture. See "Description of the Junior Subordinated
Debentures."
VOTING RIGHTS
Except as provided below, under "Modification and Amendment of the
Declaration" and "Description of the Preferred Securities
Guarantee--Amendments and Assignment" in the accompanying
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Prospectus and as otherwise required by the Business Trust Act, the Trust
Indenture Act and the Declaration, the holders of the Preferred Securities
will have no voting rights.
Subject to the requirements of the second to last sentence of this
paragraph, the holders of a majority in aggregate liquidation amount of the
Preferred Securities have the right (i) on behalf of all holders of Preferred
Securities, to waive any past default that is waivable under the Declaration
and (ii) to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any trust or
power conferred upon the Property Trustee under the Declaration, including
the right to direct the Property Trustee, as the holder of the Junior
Subordinated Debentures, to (A) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee
(as defined herein), or executing any trust or power conferred on the
Indenture Trustee with respect to the Junior Subordinated Debentures, (B)
waive any past default that is waivable under Section 6.06 of the Indenture,
or (C) exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Debentures shall be due and payable;
provided that where a consent under the Indenture would require the consent
of (a) holders of Junior Subordinated Debentures representing a specified
percentage greater than a majority in principal amount of the Junior
Subordinated Debentures or (b) each holder of Junior Subordinated Debentures
affected thereby, no such consent shall be given by the Property Trustee
without the prior consent of, in the case of clause (a) above, holders of
Preferred Securities representing such specified percentage of the aggregate
liquidation amount of the Preferred Securities or, in the case of clause (b)
above, each holder of all Preferred Securities affected thereby. The Property
Trustee shall not revoke any action previously authorized or approved by a
vote of the holders of Preferred Securities. The Property Trustee shall
notify all holders of record of Preferred Securities of any notice of default
received from the Indenture Trustee with respect to the Junior Subordinated
Debentures. Other than with respect to directing the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee
or the Indenture Trustee as set forth above, the Property Trustee shall be
under no obligation to take any of the foregoing actions at the direction of
the holders of the Preferred Securities unless the Property Trustee shall
have obtained an opinion of nationally recognized independent tax counsel
recognized as expert in such matters to the effect that the Trust will not be
classified for United States Federal income tax purposes as an association
taxable as a corporation or a partnership on account of such action and will
be treated as a grantor trust for United States Federal income tax purposes
following such action. If the Property Trustee fails to enforce its rights
under the Declaration (including, without limitation, its rights, powers and
privileges as a holder of the Debentures under the Indenture), any holder of
Preferred Securities may, to the extent permitted by applicable law, after a
period of 30 days has elapsed from such holder's written request to the
Property Trustee to enforce such rights, institute a legal proceeding
directly against the Company to enforce the Property Trustee's rights under
the Declaration, without first instituting a legal proceeding against the
Property Trustee or any other Person.
A waiver of an Indenture Event of Default by the Property Trustee at the
direction of holders of the Preferred Securities will constitute a waiver of
the corresponding Event of Default under the Declaration in respect of the
Trust Securities.
In the event the consent of the Property Trustee as the holder of the
Junior Subordinated Debentures is required under the Indenture with respect
to any amendment, modification or termination of the Indenture or the Junior
Subordinated Debentures, the Property Trustee shall request the direction of
the holders of the Trust Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a majority in liquidation amount
of the Trust Securities voting together as a single class; provided, however,
that where any such amendment, modification or termination under the
Indenture would require the consent of holders of Junior Subordinated
Debentures representing a specified percentage greater than a majority in
principal amount of the Junior Subordinated Debentures, the Property Trustee
may only give such consent at the direction of the holders of Trust
Securities representing such specified percentage of the aggregate
liquidation amount of the Trust Securities; and, provided, further, that the
Property Trustee shall be under no obligation to take any such action in
accordance with the directions of the holders of the Trust Securities unless
the Property Trustee has obtained an opinion of nationally recognized
independent tax
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counsel recognized as expert in such matters to the effect that the Trust
will not be classified for United States Federal income tax purposes as an
association taxable as a corporation or a partnership on account of such
action and will be treated as a grantor trust for United States Federal
income tax purposes following such action.
Any required approval or direction of holders of Preferred Securities may
be given at a separate meeting of holders of Preferred Securities convened
for such purpose, at a meeting of all of the holders of Trust Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be
taken, to be mailed to each holder of record of Preferred Securities. Each
such notice will include a statement setting forth (i) the date of such
meeting or the date by which such action is to be taken; (ii) a description
of any resolution proposed for adoption at such meeting on which such holders
are entitled to vote or of such matter upon which written consent is sought;
and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the holders of Preferred Securities will be required
for the Trust to redeem and cancel Preferred Securities or distribute Junior
Subordinated Debentures in accordance with the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the
Preferred Securities at such time that are owned by the Company or by any
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if
they were not outstanding.
The procedures by which persons owning Preferred Securities registered in
the name of and held by DTC or its nominee may exercise their voting rights
are described under "Book-Entry; Delivery and Form" below.
Holders of the Preferred Securities will have no rights to increase or
decrease the number of Trustees or to appoint, remove or replace a Trustee,
which rights are vested exclusively in the holders of the Common Securities.
MODIFICATION AND AMENDMENT OF THE DECLARATION
The Declaration may be modified and amended on approval of a majority of
the Regular Trustees, provided, that, if any proposed modification or
amendment provides for, or the Regular Trustees otherwise propose to effect,
(a) any action that would adversely affect the powers, preferences or special
rights of the Trust Securities, whether by way of amendment to the
Declaration or otherwise, or (b) the dissolution, winding-up or termination
of the Trust other than pursuant to the terms of the Declaration, then the
holders of the outstanding Trust Securities as a class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not
be effective except with the approval of at least 66 2/3% in liquidation
amount of the Trust Securities, provided that if any amendment or proposal
referred to above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of 66 2/3% in liquidation amount of such
class of Securities.
Notwithstanding the foregoing, (i) no amendment or modification may be
made to the Declaration unless the Regular Trustees shall have obtained (a)
either a ruling from the Internal Revenue Service or a written unqualified
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that such amendment will not cause the Trust to be
classified for United States Federal income tax purposes as an association
taxable as a corporation or a partnership and to the effect that the Trust
will continue to be treated as a grantor trust for purposes of United States
Federal income taxation and (b) a written unqualified opinion of nationally
recognized independent counsel experienced in such matters to the effect that
such amendment will not cause the Trust to be an "investment company" which
is required to be registered under the 1940 Act; (ii) certain specified
provisions of the Declaration may not be amended without the consent of all
of the holders of the Trust Securities; (iii) no amendment which adversely
affects the rights, powers and privileges of the Property Trustee shall be
made without
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the consent of the Property Trustee; (iv) Article IV of the Declaration
relating to the obligation of the Company to purchase the Common Securities
and to pay certain obligations and expenses of the Trust as described under
"The DLJ Trusts" in the accompanying Prospectus may not be amended without
the consent of the Company; and (v) the rights of holders of Common
Securities under Article V of the Declaration to increase or decrease the
number of, and to appoint, replace or remove, Trustees shall not be amended
without the consent of each holder of Common Securities.
The Declaration further provides that it may be amended without the
consent of the holders of the Trust Securities to (i) cure any ambiguity;
(ii) correct or supplement any provision in the Declaration that may be
defective or inconsistent with any other provision of the Declaration; (iii)
to add to the covenants, restrictions or obligations of the Company; and (iv)
to conform to changes in, or a change in interpretation or application of
certain 1940 Act requirements by the Commission, which amendment does not
adversely affect the rights, preferences or privileges of the holders.
BOOK-ENTRY ONLY ISSUANCE--THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary for
the Preferred Securities. The Preferred Securities will be issued only as
fully registered securities registered in the name of DTC or its nominee. One
or more fully-registered global Preferred Securities certificates (each a
"Preferred Securities Global Certificate"), representing the total aggregate
number of Preferred Securities, will be issued and will be deposited with
DTC.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in a global Preferred
Security.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. DTC holds securities that its participants ("Participants") deposit with
DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations ("Direct
Participants"). DTC is owned by a number of its Direct Participants and by
the NYSE, the American Stock Exchange, Inc., and the National Association of
Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Direct Participant,
either directly or indirectly ("Indirect Participants"). The rules applicable
to DTC and its Participants are on file with the Securities and Exchange
Commission.
Upon issuance of a Preferred Securities Global Certificate, DTC will
credit on its book-entry registration and transfer system the number of
Preferred Securities represented by such Preferred Securities Global
Certificate to the accounts of institutions that have accounts with DTC.
Ownership of beneficial interests in a Preferred Securities Global
Certificate will be limited to Participants or persons that may hold
interests through Participants. The ownership interest of each actual
purchaser of each Preferred Security ("Beneficial Owner") is in turn to be
recorded on the Direct and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from DTC of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their
holdings, from the Direct or Indirect Participants through which the
Beneficial Owners purchased Preferred Securities. Transfers of ownership
interests in the Preferred Securities are to be accomplished by entries made
on the books of Participants acting on behalf of Beneficial Owners.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Preferred Securities are
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credited, which may or may not be the Beneficial Owners. The Participants
will remain responsible for keeping account of their holdings on behalf of
their customers. So long as DTC, or its nominee, is the owner of a Preferred
Securities Global Certificate, DTC or such nominee, as the case may be, will
be considered the sole owner and holder of record of the Preferred Securities
represented by such Preferred Securities Global Certificate for all purposes.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed
by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Preferred Securities are being redeemed, DTC will reduce pro rata (subject to
adjustment to eliminate fractional Preferred Securities) the amount of
interest of each Direct Participant in the Preferred Securities to be
redeemed.
Although voting with respect to the Preferred Securities is limited, in
those instances in which a vote is required, neither DTC nor Cede & Co.
itself will consent or vote with respect to Preferred Securities. Under its
usual procedures, DTC would mail an Omnibus Proxy to the Trust as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts
the Preferred Securities are credited on the record date (identified in a
listing attached to the Omnibus proxy).
Distribution payments on the Preferred Securities represented by a
Preferred Series Global Certificate will be made by the Property Trustee to
DTC. DTC's practice is to credit Direct Participants' accounts on the
relevant payment date in accordance with their respective holdings shown on
DTC's records unless DTC has reason to believe that it will not receive
payments on such payment date. Payments by Participants to Beneficial Owners
will be governed by standing instructions and customary practices and will be
the responsibility of such Participants and not of DTC, the Trust or the
Company, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of distributions to DTC is the
responsibility of the Trust, disbursement of such payments to Direct
Participants is the responsibility of DTC, and disbursement of such payments
to the Beneficial Owners is the responsibility of Direct and Indirect
Participants.
Except as provided herein, a Beneficial Owner in a global Preferred
Security certificate will not be entitled to receive physical delivery of
Preferred Securities. Accordingly, each Beneficial Owner must rely on the
procedures of DTC to exercise any rights under the Preferred Securities.
DTC may discontinue providing its services as securities depository with
respect to the Preferred Securities at any time by giving reasonable notice
to the Trust. Under such circumstances, if a successor securities depository
is not obtained, Preferred Security certificates will be required to be
printed and delivered. Additionally, the Trust may decide to discontinue use
of the system of book-entry transfers through DTC (or a successor
depository). In that event, certificates for the Preferred Securities will be
printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Trust and the Company believe to be
reliable, but the Trust and the Company take no responsibility for the
accuracy thereof.
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
In the event the Preferred Securities do not remain in book-entry only
form, the following provisions will apply:
Payment of distributions and payments on redemption of the Preferred
Securities will be payable, the transfer of the Preferred Securities will be
registrable, and Preferred Securities will be exchangeable for Preferred
Securities of other denominations of a like aggregate liquidation amount, at
the principal corporate trust office of the Property Trustee in The City of
New York; provided that payment of
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distributions may be made at the option of the Regular Trustees on behalf of
the Trust by check mailed to the address of the persons entitled thereto and
that the payment on redemption of any Preferred Security will be made only
upon surrender of such Preferred Security to the Property Trustee.
The Bank of New York or one of its affiliates will act as registrar and
transfer agent for the Preferred Securities. The Bank of New York will also
act as paying agent and, with the consent of the Regular Trustees, may
designate additional paying agents.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of the Trust, but upon payment (with the giving of
such indemnity as the Trust or the Company may require) in respect of any tax
or other governmental charges that may be imposed in relation to it.
The Trust will not be required to register or cause to be registered the
transfer of Preferred Securities after such Preferred Securities have been
called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, prior to a default with respect to the Trust
Securities, undertakes to perform only such duties as are specifically set
forth in the Declaration and, after default, shall exercise the same degree
of care as a prudent individual would exercise in the conduct of his or her
own affairs. Subject to such provision, the Property Trustee is under no
obligation to exercise any of the powers vested in it by the Declaration at
the request of any holder of Preferred Securities, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities which
might be incurred thereby. The Property Trustee is not required to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Property Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
The Company and certain of its affiliates maintain a deposit account and
banking relationship with the Property Trustee.
GOVERNING LAW
The Declaration and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
MISCELLANEOUS
The Regular Trustees are authorized and directed to take such action as
they deem reasonable in order that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act or that the
Trust will not be classified for United States Federal income tax purposes as
an association taxable as a corporation or a partnership and will be treated
as a grantor trust for United States Federal income tax purposes. In this
connection, the Regular Trustees are authorized to take any action, not
inconsistent with applicable law, the certificate of trust or the
Declaration, that the Regular Trustees determine in their discretion to be
reasonable and necessary or desirable for such purposes, as long as such
action does not adversely affect the interests of holders of the Trust
Securities.
The Company and the Regular Trustees on behalf of the Trust will be
required to provide to the Property Trustee annually a certificate as to
whether or not the Company and the Trust, respectively, is in compliance with
all the conditions and covenants under the Declaration.
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of the Junior Subordinated Debentures in
which the Trust will invest the proceeds from the issuance and sale of the
Trust Securities and which will be deposited in the Trust as trust assets.
The terms of the Junior Subordinated Debentures include those stated in the
Indenture dated , 1996 between the Company and The Bank of New York, as
trustee (the "Indenture Trustee") as supplemented by the First Supplemental
Indenture dated , 1996 between the Company and the Indenture Trustee (as
so supplemented, the "Indenture"), forms of which have been filed as exhibits
to the Registration Statement of which this Prospectus Supplement forms a
part, and those made part of the Indenture by the Trust Indenture Act. This
description supplements the description of the general terms and provisions
of the Subordinated Debt Securities set forth in the accompanying Prospectus
under the caption "Description of the Junior Subordinated Debt Securities."
The following description does not purport to be complete and is qualified in
its entirety by reference to the Indenture and the Trust Indenture Act.
Whenever particular provisions or defined terms in the Indenture are referred
to herein, such provisions or defined terms are incorporated by reference
herein. Section and Article references used herein are references to
provisions of the Indenture.
The Indenture does not limit the aggregate principal amount of
indebtedness which may be issued thereunder and provides that junior
subordinated debentures may be issued thereunder from time to time in one or
more series (collectively, together with the Junior Subordinated Debentures,
the "Subordinated Debentures"). The Junior Subordinated Debentures constitute
a separate series under the Indenture.
Under certain circumstances involving the dissolution of the Trust
following the occurrence of a Special Event, Junior Subordinated Debentures
may be distributed to the holders of the Trust Securities in liquidation of
the Trust. See "Description of the Preferred Securities--Special Event
Redemption or Distribution."
GENERAL
The Junior Subordinated Debentures are unsecured, subordinated obligations
of the Company, limited in aggregate principal amount to an amount equal to
the sum of (i) the stated liquidation amount of the Preferred Securities
issued by the Trust and (ii) the proceeds received by the Trust upon issuance
of the Common Securities to the Company (which proceeds will be used to
purchase an equal principal amount of Junior Subordinated Debentures).
The entire principal amount of the Junior Subordinated Debentures will
become due and payable, together with any accrued and unpaid interest
thereon, on , 2046. The Junior Subordinated Debentures are not subject to
any sinking fund.
If Junior Subordinated Debentures are distributed to holders of Preferred
Securities in dissolution of the Trust, such Junior Subordinated Debentures
will initially be issued as a Global Security (as defined below). As
described herein, under certain limited circumstances, Junior Subordinated
Debentures may be issued in certificated form in exchange for a Global
Security. See "Book-Entry and Settlement" below. In the event that Junior
Subordinated Debentures are issued in certificated form, such Junior
Subordinated Debentures will be in denominations of $25 and integral
multiples thereof and may be transferred or exchanged at the offices
described below. Payments on Junior Subordinated Debentures issued as a
Global Security will be made to DTC, a successor depositary or, in the event
that no depositary is used, to a paying agent for the Junior Subordinated
Debentures.
In the event that Junior Subordinated Debentures are issued in
certificated form, payments of principal and interest will be payable, the
transfer of the Junior Subordinated Debentures will be registrable, and
Junior Subordinated Debentures will be exchangeable for Junior Subordinated
Debentures of other denominations of a like aggregate principal amount, at
the corporate trust office of the Indenture Trustee in The City of New York;
provided that payment of interest may be made at the option of the Company by
check mailed to the address of the persons entitled thereto and that the
payment of principal with respect to any Junior Subordinated Debenture will
be made only upon surrender of such Junior Subordinated Debenture to the
Indenture Trustee.
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If the Junior Subordinated Debentures are distributed to the holders of
Preferred Securities upon the dissolution of the Trust, the Company will use
its best efforts to list the Junior Subordinated Debentures on the NYSE or on
such other exchange on which the Preferred Securities are then listed.
OPTIONAL REDEMPTION
Except as provided below, the Junior Subordinated Debentures may not be
redeemed prior to , 2001. The Company shall have the right to redeem the
Junior Subordinated Debentures, in whole or in part, from time to time, on or
after , 2001 upon not less than 30 nor more than 60 days' notice, at a
redemption price equal to 100% of the principal amount to be redeemed, plus
any accrued and unpaid interest, to the redemption date, including interest
accrued during an Extension Period. The Company will also have the right to
redeem the Junior Subordinated Debentures at any time upon the occurrence of
a Tax Event if certain conditions are met as described under "Description of
the Preferred Securities--Special Event Redemption or Distribution."
If the Company gives a notice of redemption in respect of Junior
Subordinated Debentures (which notice will be irrevocable) then, by 12:00
noon, New York City time, on the redemption date, the Company will deposit
irrevocably with the Indenture Trustee funds sufficient to pay the applicable
redemption price and will give irrevocable instructions and authority to pay
such redemption price to the holders of the Junior Subordinated Debentures.
If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, interest will cease to accrue
on the Junior Subordinated Debentures called for redemption, such Junior
Subordinated Debentures will no longer be deemed to be outstanding and all
rights of holders of such Junior Subordinated Debentures so called for
redemption will cease, except the right of the holders of such Junior
Subordinated Debentures to receive the applicable redemption price, but
without interest on such redemption price. If any date fixed for redemption
of Junior Subordinated Debentures is not a Business Day, then payment of the
redemption price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect
of any such delay) except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the redemption price in respect of
Junior Subordinated Debentures is improperly withheld or refused and not paid
by the Company, interest on such Junior Subordinated Debentures will continue
to accrue, from the original redemption date to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable redemption price. If fewer than
all of the Junior Subordinated Debentures are to be redeemed, the Junior
Subordinated Debentures to be redeemed shall be selected by lot or pro rata
or in some other equitable manner determined by the Indenture Trustee.
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange any Junior Subordinated
Debentures during a period beginning at the opening of business 15 days
before any selection for redemption of Junior Subordinated Debentures and
ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all holders of Junior
Subordinated Debentures to be redeemed and (ii) register the transfer of or
exchange any Junior Subordinated Debentures so selected for redemption, in
whole or in part, except the unredeemed portion of any Junior Subordinated
Debentures being redeemed in part. (Section 2.05)
INTEREST
The Junior Subordinated Debentures will bear interest at the rate of %
per annum from the original date of issuance. Interest will be payable
monthly in arrears on the last day of each month (each, an "Interest Payment
Date"), commencing on to the person in whose name such Junior
Subordinated Debenture is registered, subject to certain exceptions, at the
close of business on the Business Day next preceding such Interest Payment
Date. In the event (i) the Preferred Securities shall not continue to remain
in book-entry only form or (ii) if following distribution of the Junior
Subordinated Debentures to holders of Trust Securities upon dissolution of
the Trust as described under "Description
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of the Preferred Securities," the Junior Subordinated Debentures shall not
continue to remain in book-entry only form, the relevant record date will be
the fifteenth day of the month prior to the relevant Interest Payment Date.
Interest payable on any Junior Subordinated Debenture that is not punctually
paid or duly provided for on any interest payment date will forthwith cease
to be payable to the person in whose name such Junior Subordinated Debenture
is registered on the relevant record date, and such defaulted interest will
instead be payable to the person in whose name such Junior Subordinated
Debenture is registered on the special record date or other specified date
determined in accordance with the Indenture; provided, however, that interest
shall not be considered payable by the Company on any interest payment date
falling within an Extension Period unless the Company has elected to make a
full or partial payment of interest accrued on the Junior Subordinated
Debentures on such interest payment date.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months and for any period shorter
than a full monthly period for which interest is computed, the amount of
interest payable will be computed on the basis of the actual number of days
lapsed. If any date on which interest is payable on the Junior Subordinated
Debentures is not a Business Day, then payment of the interest payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as the Company shall not be in default in the payment of interest
on the Junior Subordinated Debentures, the Company shall have the right to
extend the interest payment period from time to time for period not exceeding
60 consecutive months. The Company has no current intention of exercising its
right to extend an interest payment period. No interest shall be due and
payable during an Extension Period, except at the end thereof. During any
Extension Period, the Company shall not declare or pay any dividends on, or
redeem, purchase, acquire or make a distribution or liquidation payment with
respect to, any of its common stock or preferred stock or make any guarantee
payments with respect thereto; provided that (i) the Company will be
permitted to pay accrued dividends upon exchange or redemption of any series
of preferred stock of the Company as may be outstanding from time to time, in
accordance with the terms of such stock and (ii) the foregoing will not apply
to stock dividends paid by the Company. Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period;
provided that such Extension Period together with all such previous and
further extensions thereof may not exceed 60 consecutive months. On the
interest payment date occurring at the end of each Extension Period, the
Company shall pay to the holders of Junior Subordinated Debentures of record
on the record date for such interest payment date (regardless of who the
holders of record may have been on other dates during the Extension Period)
all accrued and unpaid interest on the Junior Subordinated Debentures,
together with interest thereon at the rate specified for the Junior
Subordinated Debentures to the extent permitted by applicable law, compounded
monthly ("Compounded Interest"). Upon the termination of any Extension Period
and the payment of all amounts then due, the Company may commence a new
Extension Period, subject to the above requirements. The Company may also
prepay at any time all or any portion of the interest accrued during an
Extension Period. Consequently, there could be multiple Extension Periods of
varying lengths throughout the term of the Junior Subordinated Debentures,
not to exceed 60 consecutive months or to cause any extension beyond maturity
of the Junior Subordinated Debentures. The failure by the Company to make
interest payments during an Extension Period would not constitute a default
or an event of default under the Indenture or the Company's currently
outstanding indebtedness.
If the Property Trustee shall be the sole holder of the Junior
Subordinated Debentures, the Company shall give the Property Trustee notice
of its selection of such Extension Period one Business Day prior to the
earlier of (i) the date the distributions on the Preferred Securities are
payable or (ii) the date the Trust is required to give notice to the NYSE or
other applicable self-regulatory organization or to holders of the Preferred
Securities of the record date or the date such distribution is payable. The
Trust shall give notice of the Company's selection of such Extension Period
to the holders of the Preferred Securities.
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If Junior Subordinated Debentures have been distributed to holders of
Trust Securities, the Company shall give the holders of the Junior
Subordinated Debentures notice of its selection of such Extension Period ten
Business Days prior to the earlier of (i) the next succeeding Interest
Payment Date or (ii) the date the Company is required to give notice to the
NYSE (if the Junior Subordinated Debentures are then listed thereon) or other
applicable self-regulatory organization or to holders of the Junior
Subordinated Debentures of the record or payment date of such related
interest payment.
COMPOUNDED INTEREST
Payments of Compounded Interest on the Junior Subordinated Debentures held
by the Trust will make funds available to pay any interest on distributions
in arrears in respect of the Preferred Securities pursuant to the terms
thereof.
BOOK-ENTRY AND SETTLEMENT
If any Junior Subordinated Debentures are distributed to holders of
Preferred Securities (see "Description of the Preferred Securities"), such
Junior Subordinated Debentures will be issued in the form of one or more
global certificates (each a "Global Security") registered in the name of the
Depositary or its nominee. Except under the limited circumstances described
below, Junior Subordinated Debentures represented by the Global Security will
not be exchangeable for, and will not otherwise be issuable as, Junior
Subordinated Debentures in definitive form. The Global Securities described
above may not be transferred except by the depositary to a nominee of the
depositary or by a nominee of the depositary to the depositary or another
nominee of the depositary or to a successor depositary or its nominee.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer beneficial interests in such a Global
Security.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Junior
Subordinated Debentures in definitive form and will not be considered the
holders (as defined in the Indenture) thereof for any purpose under the
Indenture, and no Global Security representing Junior Subordinated Debentures
shall be exchangeable, except for another Global Security of like
denomination and tenor to be registered in the name of the Depositary or its
nominee or to a successor Depositary or its nominee. Accordingly, each
Beneficial Owner must rely on the procedures of the Depositary or if such
person is not a Participant, on the procedures of the Participant through
which such person owns its interest to exercise any rights of a holder under
the Indenture. If Junior Subordinated Debentures are distributed to holder of
Preferred Securities, DTC will act as securities depositary for the Junior
Subordinated Debentures.
For a description of DTC and DTC's book-entry system, see "Description of
Preferred Securities--Book-Entry Only Issuance--The Depository Trust
Company." As of the date of this Prospectus Supplement, the description
herein of DTC's book-entry system and DTC's practices as they relate to
purchases, transfers, notices and payments with respect to the Preferred
Securities apply in all material respects to any debt obligations represented
by one or more Global Securities held by DTC. The Company may appoint a
successor to DTC or any successor depositary in the event DTC or such
successor depositary is unable or unwilling to continue as a depository for
the Global Securities.
None of the Company, the Indenture Trustee, any paying agent and any other
agent of the Company or the Indenture Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a Global Security for such
Junior Subordinated Debentures or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
A Global Security shall be exchangeable for Junior Subordinated Debentures
registered in the names of persons other than the depositary or its nominee
only if (i) the depositary notifies the Company that it is unwilling or
unable to continue as a depositary for such Global Security and no successor
depositary
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shall have been appointed; (ii) the depositary, at any time, ceases to be a
clearing agency registered under the Exchange Act at which time the
depositary is required to be so registered to act as such depositary and no
successor depositary shall have been appointed; (iii) the Company, in its
sole discretion, determines that such Global Security shall be so
exchangeable; or (iv) there shall have occurred an Indenture Event of Default
with respect to such Junior Subordinated Debentures. Any Global Security that
is exchangeable pursuant to the preceding sentence shall be exchangeable for
Junior Subordinated Debentures registered in such names as the depositary
shall direct. It is expected that such instructions will be based upon
directions received by the depositary from its Participants with respect to
ownership of beneficial interests in such Global Security.
RELATIONSHIP BETWEEN THE PREFERRED SECURITIES, THE JUNIOR
SUBORDINATED DEBENTURES AND THE PREFERRED SECURITIES GUARANTEE
As set forth in the Declaration, the Trust exists for the sole purpose of
(a) issuing the Trust Securities evidencing undivided beneficial interests in
the assets of the Trust, and investing the proceeds from such issuance and
sale in the Junior Subordinated Debentures and (b) engaging in such other
activities as are necessary and incidental thereto.
As long as payments of interest and other payments are made when due on
the Junior Subordinated Debentures, such payments will be sufficient to cover
distributions and other payments due on the Preferred Securities primarily
because (i) the aggregate principal amount of Junior Subordinated Debentures
held as trust assets will be equal to the sum of the aggregate stated
liquidation amount of the Preferred Securities and the proceeds received by
the Trust upon issuance of the Common Securities to the Company; (ii) the
interest rate and interest and other payment dates on the Junior Subordinated
Debentures will match the distribution rate and distribution and other
payment dates for the Preferred Securities; (iii) the Declaration provides
that the Company shall pay for all debts and obligations (other than with
respect to the Trust Securities) and all costs and expenses of the Trust,
including any taxes and all costs and expenses with respect thereto, to which
the Trust may become subject, except for United States withholding taxes; and
(iv) the Declaration further provides that the Trustees shall not cause or
permit the Trust, among other things, to engage in any activity that is not
consistent with the limited purposes of the Trust. With respect to clause
(iii) above, however, no assurance can be given that the Company will have
sufficient resources to enable it to pay such debts, obligations, costs and
expenses on behalf of the Trust.
Payments of distributions and other payments due on the Preferred
Securities are guaranteed by the Company on a subordinated basis as and to
the extent set forth under "Description of the Preferred Securities
Guarantee" in the accompanying Prospectus. If the Company does not make
interest or other payments on the Junior Subordinated Debentures, the Trust
will not make distributions or other payments on the Preferred Securities.
Under the Declaration, if and to the extent the Company does make interest or
other payments on the Junior Subordinated Debentures, the Property Trustee is
obligated to make distributions or other payments on the Preferred
Securities. The Preferred Securities Guarantee is a full and unconditional
guarantee from the time of issuance of the Preferred Securities, but the
Preferred Securities Guarantee covers distributions and other payments on the
Preferred Securities only if and to the extent that the Company has made a
payment to the Property Trustee of interest or principal on the Junior
Subordinated Debentures deposited in the Trust as trust assets.
The Property Trustee will have the Power to exercise all rights, powers
and privileges under the Indenture with respect to the Junior Subordinated
Debentures, including its rights as the holder of the Junior Subordinated
Debentures to enforce the Company's obligations under the Junior Subordinated
Debentures upon the occurrence of an Indenture Event of Default, and will
also have the right to enforce the Preferred Securities Guarantee on behalf
of the holders of the Preferred Securities. In addition, the holders of at
least a majority in liquidation amount of the Preferred Securities will have
the right to direct the Property Trustee with respect to certain matters
under the Declaration and the Preferred Securities Guarantee. If the Property
Trustee fails to enforce its rights under the Indenture any holder of
Preferred Securities may, after a period of 30 days has elapsed from such
holder's written request to the Property Trustee to enforce such rights
institute a legal proceeding against the Company to enforce such rights. If
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the Property Trustee fails to enforce the Preferred Securities Guarantee, to
the extent permitted by applicable law, any holder of Preferred Securities
may institute a legal proceeding directly against the Company to enforce the
Property Trustee's rights under the Preferred Securities Guarantee. See
"Description of the Preferred Securities" and "Description of the Preferred
Securities Guarantee" in the accompanying Prospectus Supplement.
The above mechanisms and obligations, taken together, provide a full and
unconditional guarantee by the Company of payments due on the Preferred
Securities.
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TAXATION
In the opinion of Davis Polk & Wardwell, counsel to the Company and the
Trust, the following are the material United States Federal income tax
consequences of the ownership and disposition of Preferred Securities. Unless
otherwise stated, this summary deals only with Preferred Securities held as
capital assets by holders who acquire the Preferred Securities upon original
issuance ("Initial Holders"). It does not deal with special classes of
holders, such as dealers in securities or currencies, life insurance
companies, persons holding Preferred Securities as part of a straddle or as
part of a hedging or conversion transaction, or persons whose functional
currency is not the United States dollar. This summary is based on the
Internal Revenue Code of 1986, as amended (the "Code"). Treasury Regulations
thereunder and administrative and judicial interpretations thereof are of the
date hereof, all of which are subject to change (possibly on a retroactive
basis).
INVESTORS ARE ADVISED TO CONSULT THEIR TAX ADVISORS AS TO THE UNITED
STATES FEDERAL INCOME TAX CONSEQUENCES OF THE OWNERSHIP AND DISPOSITION OF
PREFERRED SECURITIES IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, AS WELL AS
THE EFFECT OF ANY STATE, LOCAL OR OTHER TAX LAWS.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the Preferred Securities, Davis Polk &
Wardwell, counsel to the Company and the Trust, will render its opinion
generally to the effect that, under then current law and assuming full
compliance with the terms of the Declaration, the Trust will be classified
for United States Federal income tax purposes as a grantor trust and not as
an association taxable as a corporation. Accordingly, each holder of
Preferred Securities (a "Securityholder") will be considered the owner of a
pro rata portion of the Junior Subordinated Debentures held by the Trust.
Accordingly, each Securityholder will be required to include in gross income
his pro rata share of income accrued on the Junior Subordinated Debentures.
ACCRUAL OF ORIGINAL ISSUE DISCOUNT AND PREMIUM
It is more likely than not that the Junior Subordinated Debentures will be
considered to have been issued with "original issue discount" and the Company
intends to take that position in filing related information returns.
Accordingly, each Securityholder, including a taxpayer who otherwise uses the
cash method of accounting, will be required to include his pro rata share of
original issue discount on the Junior Subordinated Debentures in income as it
accrues, in accordance with a constant yield method based on a compounding of
interest, before the receipt of cash distributions on the Preferred
Securities. Generally, all of a Securityholder's taxable interest income with
respect to the Junior Subordinated Debentures will be accounted for as
"original issue discount" and actual distributions of stated interest will
not be separately reported as taxable income. So long as the interest payment
period is not extended, cash distributions received by an initial Holder for
any monthly interest period (assuming no disposition prior to the record date
for such distribution) will equal or exceed the sum of the daily accruals of
income for such monthly interest period, unless the issue price of the Junior
Subordinated Debentures (as defined below) is less than $25.
The total amount of "original issue discount" on the Junior Subordinated
Debentures will equal the difference between the "issue price" of the Junior
Subordinated Debentures and their "stated redemption price at maturity."
Because the Company has the right to extend the interest payment period of
the Junior Subordinated Debentures, all of the stated interest payments on
the Junior Subordinated Debentures will be includible in determining their
"stated redemption price at maturity." The "issue price" of each $25
principal amount of Junior Subordinated Debentures will be equal to the first
price to the public at which a substantial amount of the Preferred Securities
is sold for cash, which is expected to be $25.
A Securityholder's initial tax basis for his pro rata share of the Junior
Subordinated Debentures will be equal to his pro rata share of their "issue
price," as defined above, and will be increased by original issue discount
accrued with respect to his pro rata share of the Junior Subordinated
Debentures, and reduced by the amount of cash distributions with respect
thereto. No portion of the amounts received on the Preferred Securities will
be eligible for the dividends received deduction.
S-33
<PAGE>
POTENTIAL EXTENSION OF PAYMENT PERIOD ON THE JUNIOR SUBORDINATED DEBENTURES
Securityholders will continue to accrue original issue discount with
respect to their pro rata share of the Junior Subordinated Debentures during
an extended interest payment period, and any holders who dispose of Preferred
Securities prior to the record date for the payment of interest following
such extended interest payment period will not receive from the Trust any
cash related thereto.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES TO HOLDERS OF PREFERRED
SECURITIES
Under current law, a distribution by the Trust of the Junior Subordinated
Debentures as described under the caption "Description of the Preferred
Securities--Special Event Redemption or Distribution," will be non-taxable
and will result in the Securityholder receiving directly his pro rata share
of the Junior Subordinated Debentures previously held indirectly through the
Trust, with a holding period and tax basis equal to the holding period and
adjusted tax basis such Securityholder was considered to have had in his pro
rata share of the underlying Junior Subordinated Debentures prior to such
distribution.
MARKET DISCOUNT AND BOND PREMIUM
Securityholders other than Initial Holders may be considered to have
acquired their pro rata interest in the Junior Subordinated Debentures with
market discount, acquisition premium or amortizable bond premium. Such
holders are advised to consult their tax advisors as to the income tax
consequences of the acquisition, ownership and disposition of the Preferred
Securities.
DISPOSITION OF THE PREFERRED SECURITIES
Upon a sale, exchange or other disposition of the Preferred Securities
(including a distribution of cash in redemption of a Securityholder's
Preferred Securities upon redemption or repayment of the underlying Junior
Subordinated Debentures, but excluding the distribution of Junior
Subordinated Debentures), a Securityholder will be considered to have
disposed of all or part of his pro rata share of the Junior Subordinated
Debentures, and will recognize gain or loss equal to the difference between
the amount realized and the Securityholder's adjusted tax basis in his pro
rata share of the underlying Junior Subordinated Debentures deemed disposed
of. Gain or loss will be capital gain or loss (except to the extent of any
accrued market discount with respect to such Securityholder's pro rata share
of the Junior Subordinated Debentures not previously included in income). See
"Market Discount and Bond Premium" above. Such gain or loss will be long-term
capital gain or loss if the Preferred Securities have been held for more than
one year.
The Preferred Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying
Junior Subordinated Debentures. A Securityholder who disposes of his
Preferred Securities between record dates for payments of distributions
thereon will nevertheless be required to include accrued but unpaid interest
on the Junior Subordinated Debentures through the date of disposition in
income as ordinary income, and to add such amount to his adjusted tax basis
in his pro rate share of the underlying Junior Subordinated Debentures deemed
disposed of. Accordingly, such a Securityholder will recognize a capital loss
to the extent the selling price (which may not fully reflect the value of
accrued but unpaid interest) is less than the Securityholder's adjusted tax
basis (which will include accrued but unpaid interest). Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary
income for United States Federal income tax purposes.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is as to the
United States, a foreign corporation, a non-resident alien individual, a
foreign partnership or a non-resident fiduciary of a foreign estate or trust.
Under present United States Federal income tax law:
(i) payments by the Trust or any of its paying agents to any holder of a
Preferred Security who or which is a United States Alien Holder will not
be subject to United States federal withholding tax,
S-34
<PAGE>
provided that (a) the beneficial owner of the Preferred Security does not
actually or constructively own 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote; (b) the
beneficial owner of the Preferred Security is not a controlled foreign
corporation that is related to the Company through stock ownership; and
(c) either (A) the beneficial owner of the Preferred Security certifies to
the Trust or its agent, under penalties of perjury, that it is not a
United States holder and provides its name and address or (B) a securities
clearing organization, bank or other financial institution that holds
customers' securities in the ordinary course of its trade or business (a
"Financial Institution") and holds the Preferred Security certifies to the
Trust or its agent under penalties of perjury that such statement has been
received from the beneficial owner by it or by a Financial Institution
between it and the beneficial owner and furnishes the Trust or its agent
with a copy thereof; and
(ii) A United States Alien Holder of a Preferred Security will not be
subject to United States federal withholding tax on any gain realized upon
the sale or other disposition of a Preferred Security.
INFORMATION REPORTING TO HOLDERS
The Trust will report the original issue discount that accrued during the
year with respect to the Junior Subordinated Debentures, and any gross
proceeds received by the Trust from the retirement or redemption of the
Junior Subordinated Debentures, annually to the holders of record of the
Preferred Securities and the Internal Revenue Service. The Trust currently
intends to deliver such reports to holders of record prior to January 31
following each calendar year. It is anticipated that persons who hold
Preferred Securities as nominees for beneficial holders will report the
required tax information to beneficial holders on Form 1099.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of Preferred Securities may
be subject to a "backup" withholding tax of 31% unless the holder complies
with certain identification requirements. Any withheld amounts will generally
be allowed as a credit against the holder's Federal income tax, provided the
required information is timely filed with the Internal Revenue Service.
POSSIBLE TAX LAW CHANGES
If enacted in their present form, certain legislative proposals in the
Revenue Reconciliation Bill of 1996 (the "Bill") would prevent the Company
from deducting interest on the Junior Subordinated Debentures. The Bill as
proposed would be effective generally for instruments issued on or after
December 7, 1995. However, on March 29, 1996, the Chairmen of the Senate
Finance and House Ways and Means Committees issued a joint statement to the
effect that it was their intention that the effective date of the President's
legislative proposals, if adopted, will be no earlier than the date of
appropriate Congressional action. There can be no assurance, however, that
current or future legislative proposals if enacted would not prevent the
Company from deducting interest on the Junior Subordinated Debentures. This
would constitute a Tax Event and could result in the distribution of the
Junior Subordinated Debentures to holders of the Preferred Securities or, in
certain circumstances, the redemption of such securities by the Company and
the distribution of the resulting cash in redemption of the Preferred
Securities. See "Description of the Preferred Securities--Special Event
Redemption or Distribution."
S-35
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
dated the date hereof (the "Underwriting Agreement"), the Company and the
Trust have agreed that the Trust will sell to each of the Underwriters named
below, and each of the Underwriters, for whom Donaldson, Lufkin & Jenrette
Securities Corporation is acting as representative (the "Representative"),
has severally agreed to purchase the number of Preferred Securities set forth
opposite its name below.
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED
UNDERWRITER SECURITIES
- ------------------------------------------------------- --------------
<S> <C> <C>
Donaldson, Lufkin & Jenrette Securities Corporation ...
--------------
Total .................................................
</TABLE>
The Underwriting Agreement provides that the obligations of the several
Underwriters to purchase and accept delivery of the Preferred Securities
offered hereby are subject to approval of certain legal matters by counsel
and to certain other conditions. If any Preferred Securities are purchased by
the Underwriters pursuant to the Underwriting Agreement, all such Preferred
Securities must be purchased.
The Underwriters propose to offer the Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $ per Preferred Security. The
Underwriters may allow, and such dealers may reallow, a concession not in
excess of $ per Preferred Security to certain brokers and dealers. After
the Preferred Securities are released for sale to the public, the offering
price and other selling terms may from time to time be varied by the
Representative.
In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Junior Subordinated Debentures of the
Company, the Underwriting Agreement provides that the Company will agree to
pay as compensation ("Underwriters' Compensation") for the Underwriters'
arranging the investment therein of such proceeds, an amount in same day
funds of $ per Preferred Security or $ in the aggregate ($ in
the aggregate if the Underwriters' overallotment option is exercised in full)
for the accounts of the several Underwriters.
Pursuant to the Underwriting Agreement, the Trust and the Company have
granted to the Underwriters an option, exercisable for 30 days from the date
hereof, to purchase up to additional Preferred Securities at the
initial public offering price set forth on the cover page hereof. The
Underwriters may exercise such option to purchase solely for the purpose of
covering over-allotments, if any, made in connection with the offering. The
Company will pay Underwriters' Compensation in the amount per Preferred
Security set forth above with respect to such additional Preferred
Securities. To the extent such option is exercised, each Underwriter will
become obligated, subject to certain conditions, to purchase approximately
the same percentage of such additional Preferred Securities as the number set
forth next to such Underwriter's name in the preceding table bears to the
total number of Preferred Securities offered by the Underwriters hereby.
The Trust and the Company have agreed not to offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any preferred
securities or any securities convertible into or exercisable or exchangeable
for such preferred securities or in any other manner transfer all or a
portion of the economic consequences associated with the ownership of any
such preferred securities, except to the Underwriters, for a period of days
after the date of this Prospectus Supplement without the prior written
consent of .
Application has been made to list the Preferred Securities on the NYSE. If
so approved, trading of the Preferred Securities on the NYSE is expected to
commence within a 30 day period after the initial delivery of the Preferred
Securities. The Representative has advised the Trust that it intends to make
a
S-36
<PAGE>
market in the Preferred Securities prior to the commencement of trading on
the NYSE. The Representative will have no obligation to make a market in the
Preferred Securities, however, and may cease market making activities, if
commenced, at any time.
The Representative is a wholly-owned subsidiary of the Company. The
Representative has committed to purchase from the Company % of the
Preferred Securities to be purchased in the offering on the same basis as the
other Underwriters. Although the amount of proceeds derived from the offering
by the Company will not be affected by the Representative's participation as
an Underwriter to the extent that part or all of the Preferred Securities to
be purchased by the Representative are not resold, the Preferred Securities
owned by the Representative will be eliminated in consolidation and will not
be shown as outstanding in the consolidated financial statements of the
Company. The Representative intends to resell any Preferred Securities which
it is unable to resell in the offering from time to time, at prevailing
market prices. This Prospectus Supplement, together with the accompanying
Prospectus, may also be used by the Representative in connection with offers
and sales of the Preferred Securities related to market-making transactions
by and through the Representative, at negotiated prices related to prevailing
market prices at the time of sale or otherwise. The Representative may act as
principal or agent in such transactions. The offering of the Preferred
Securities is being conducted in accordance with Schedule E of the NASD
By-Laws.
Prior to this offering, there has been no public market for the Preferred
Securities. In order to meet one of the requirements for listing the
Preferred Securities on the NYSE, the Underwriters will undertake to sell
lots of 100 or more Preferred Securities to a minimum of 400 beneficial
holders.
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended or to contribute to payments that the Underwriters may be required to
make in respect thereof.
S-37
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY DONALDSON, LUFKIN & JENRETTE,
INC., DLJ CAPITAL TRUST I OR ANY UNDERWRITER. NEITHER THE DELIVERY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY SALE MADE HEREUNDER AND
THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF DONALDSON, LUFKIN & JENRETTE, INC. OR
DLJ CAPITAL TRUST I SINCE THE DATE HEREOF OR THEREOF. THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY PREFERRED SECURITIES BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO
OR TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
PROSPECTUS SUPPLEMENT
Risk Factors ............................... S-4
Selected Consolidated Financial Data ...... S-8
The Company ................................ S-11
DLJ Capital Trust I ........................ S-13
Capitalization of the Company .............. S-14
Accounting Treatment ....................... S-15
Use of Proceeds ............................ S-15
Description of the Preferred Securities ... S-16
Description of the Junior Subordinated
Debentures ................................ S-27
Relationship Between the Preferred
Securities, the Junior Subordinated
Debentures and the Preferred Securities
Guarantee ................................. S-31
Taxation ................................... S-33
Underwriting ............................... S-36
PROSPECTUS
Available Information ...................... 2
Incorporation of Certain Documents by
Reference ................................. 2
Use of Proceeds ............................ 3
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends ................. 3
The Company ................................ 4
The DLJ Trusts ............................. 6
Description of the Preferred Securities ... 10
Description of the Preferred Securities
Guarantees ................................ 11
Description of the Junior Subordinated
Debt Securities ........................... 14
Plan of Distribution ....................... 20
Legal Matters .............................. 21
Experts .................................... 21
</TABLE>
PREFERRED SECURITIES
DLJ
CAPITAL TRUST I
% PREFERRED TRUST SECURITIES
GUARANTEED TO THE EXTENT
SET FORTH HEREIN BY
DONALDSON, LUFKIN & JENRETTE, INC.
PROSPECTUS SUPPLEMENT
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
, 1996
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION DATED AUGUST 15, 1996
PROSPECTUS
, 1996
$500,000,000
DONALDSON, LUFKIN & JENRETTE, INC.
DEBT SECURITIES AND PREFERRED STOCK
Donaldson Lufkin & Jenrette, Inc. (the "Company") may from time to time
offer, together or separately, (i) senior or subordinated debt securities
(the "Debt Securities") or (ii) shares of its preferred stock, par value
$0.01 per share (the "Preferred Stock"). The Debt Securities and Preferred
Stock are collectively called the "Securities."
The Securities offered pursuant to this Prospectus may be issued in one or
more series or issuances in U.S. dollars or in one or more foreign
currencies, currency units or composite currencies. By separate prospectus,
the form of which is included in the Registration Statement of which this
Prospectus forms a part, four Delaware statutory business trusts (the
"Trusts"), which are wholly owned subsidiaries of the Company, may from time
to time severally offer preferred securities guaranteed by the Company to the
extent set forth therein and the Company may offer from time to time junior
subordinated debt securities either directly or to a Trust. The aggregate
initial public offering price of the securities to be offered by this
Prospectus and such other prospectus shall not exceed $500,000,000 (or its
equivalent in one or more foreign currencies, currency units or composite
currencies).
Specific terms of the securities in respect of which this Prospectus is
being delivered (the "Offered Securities") will be set forth in an
accompanying Prospectus Supplement (a "Prospectus Supplement"), together with
the terms of the offering of the Offered Securities, the initial price
thereof and the net proceeds from the sale thereof. The Prospectus Supplement
will set forth with regard to the particular Offered Securities, without
limitation, the following: (i) in the case of Debt Securities, the ranking as
senior or subordinated debt securities, the specific designation, aggregate
principal amount, authorized denomination, maturity, rate (which may be fixed
or variable) or method of calculation of interest and dates for payment
thereof, and any exchangeability, conversion, redemption, prepayment or
sinking fund provisions and any listing on a securities exchange and (ii) in
the case of Preferred Stock, the specific designation, number of shares,
purchase price and the rights, preferences and privileges thereof and any
qualifications or restrictions thereon (including dividends, liquidation
value, voting rights, terms for the redemption, conversion or exchange
thereof and any other specific terms of the Preferred Stock) and any listing
on a securities exchange. Unless otherwise indicated in the Prospectus
Supplement, the Company does not intend to list any of the Securities on a
national securities exchange.
The Offered Securities may be offered directly, through agents designated
from time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan of
Distribution." Any such agents, dealers or underwriters will be set forth in
a Prospectus Supplement. If an agent of the Company, or a dealer or
underwriter is involved in the offering of the Offered Securities, the
agent's commission, dealer's purchase price, underwriter's discount and net
proceeds to the Company, as the case may be, will be set forth in, or may be
calculated from, the Prospectus Supplement. Any underwriters, dealers or
agents participating in the offering may be deemed "underwriters" within the
meaning of the Securities Act of 1933, as amended.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The registration
statement of which this Prospectus forms a part, as well as reports, proxy
statements and other information filed by the Company, may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549; 7 World Trade Center, New York,
New York 10048; and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549. Such material may also be
accessed electronically by means of the Commission's home page on the
Internet at http: //www.sec.gov. The Company's common stock, par value $0.10
per share (the "Common Stock"), is listed on the New York Stock Exchange,
Inc. and reports and other information concerning the Company can also be
inspected at the office of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
This Prospectus constitutes a part of the Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Offered Securities. This
Prospectus does not contain all of the information set forth in such
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Offered Securities. Any
statements contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed with the
Commission or incorporated by reference herein are not necessarily complete,
and in each instance reference is made to the copy of such document so filed
for a more complete description of the matter involved. Each such statement
is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1995, Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996
and June 30, 1996 and Current Reports on Form 8-K dated February 9, 1996 and
February 12, 1996, previously filed by the Company with the Commission, are
incorporated by reference in this Prospectus.
All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the termination of the offering of the Offered Securities offered hereby,
shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statements as modified
or superseded shall be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may
be incorporated by reference in this Prospectus (other than certain exhibits
to such documents). Requests for such documents should be directed to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York
10172, Attention: Corporate Secretary (Telephone: (212) 892-3000).
2
<PAGE>
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement,
proceeds from the sale of the Offered Securities will be used by the Company
for general corporate purposes and initially may be temporarily invested in
short-term securities.
RATIOS OF EARNINGS
TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends for the
Company for the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
-------------------------------------- ---------------
1991 1992 1993 1994 1995 1996
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges (1) ................. 1.07 1.21 1.20 1.10 1.11 1.20
Ratio of earnings to combined
fixed charges and preferred
stock dividends (2) ......... -- -- -- 1.09 1.10 1.19
</TABLE>
- ------------
(1) For the purpose of calculating the ratio of earnings to fixed charges
(i) earnings consist of income before provision for income taxes and
fixed charges and (ii) fixed charges consist of interest expense and
one-third of rental expense which is deemed representative of an
interest factor.
(2) For the purpose of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends (i) earnings consist of income
before provision for income taxes and fixed charges and (ii) fixed
charges consist of interest expense and one-third of rental expense
which is deemed representative of an interest factor. No preferred
dividends were paid until 1994.
3
<PAGE>
THE COMPANY
The Company is a leading integrated investment and merchant bank that
serves institutional, corporate, governmental and individual clients. The
Company's businesses include securities underwriting, sales and trading;
merchant banking; financial advisory services; investment research;
correspondent brokerage services; and asset management. While results have
fluctuated from year to year, for the years 1991 through 1995, the Company's
total revenues and net income increased by a compound annual growth rate of
22.8% and 32.7%, respectively. The Company's average annual after-tax return
on common equity for the past five years was 23.1%. At June 30, 1996, the
Company had total assets of $47.7 billion and total stockholders' equity of
$1.3 billion.
The Company's principal strategy is to focus its resources on certain core
businesses where management believes the Company can compete profitably and
be among the leading participants in each targeted market. Over the past
several years, the Company has significantly expanded the scope of its
business activities and its customer base, both in the U.S. and
internationally. It has established strong positions in selected high-margin
activities, including equity and high-yield corporate securities underwriting
as well as merchant banking, and has increased its market share in a broad
range of businesses. Key elements of this expansion have been the Company's
recruitment of experienced professionals during periods of turmoil in the
securities industry, the continued development and retention of the Company's
existing personnel at all levels and the continuity of senior management. In
addition, the Company has historically emphasized economic and investment
research in the development of its business and believes that its commitment
to research has been an important contributor to its success.
The Company conducts its business through three principal operating
groups, each of which is an important contributor to revenues and earnings:
the Banking Group, which includes the Company's Investment Banking, Merchant
Banking and Emerging Markets groups; the Capital Markets Group, consisting of
the Company's institutional debt and equity businesses as well as Sprout, its
venture capital affiliate; and the Financial Services Group, comprised of its
Pershing clearing division, high-net-worth retail brokerage and asset
management businesses.
The Company's Banking Group is a major participant in the raising of
capital and the providing of financial advice to companies throughout the
U.S. and has significantly expanded its activities abroad. Through its
Investment Banking group, the Company manages and underwrites public
offerings of securities, arranges private placements and provides advisory
and other services in connection with mergers, acquisitions, restructurings
and other financial transactions. Since 1991, the Investment Banking group
has raised over $190.0 billion for clients from the public and private
markets in corporate equity and debt securities and has completed over 350
merger and acquisition, restructuring and divestiture assignments aggregating
in excess of $89.0 billion. Its Merchant Banking group pursues direct
investments in a variety of areas through a number of investment vehicles
funded with capital provided primarily by institutional investors, the
Company and its employees. Since the Company began investing in leveraged
investments in 1985, it invested over $1.0 billion on behalf of the Company,
its employees and funds it manages in over 50 companies with an aggregate
purchase price of over $19.5 billion and achieved an average annual internal
rate of return substantially in excess of comparable industry benchmarks. The
Emerging Markets group specializes in client advisory services, merchant
banking and the underwriting, sales and trading of securities in Latin
America, Asia and certain other international markets.
The Capital Markets Group encompasses a broad range of activities
including trading, research, origination and distribution of equity and
fixed-income securities, private equity investments and venture capital. Its
focus is primarily client-driven, in contrast to that of many other
securities firms which emphasize proprietary trading, an approach that
reduces the Company's exposure to market volatility. Its Taxable Fixed-Income
division provides institutional clients with research, trading and sales
services for a broad range of taxable fixed-income products including
high-yield corporate, investment-grade corporate, U.S. government and
mortgage-backed securities. The Institutional Equities division provides
institutional clients with research, trading and sales services in U.S.
listed and over-the-counter equity securities. The Company's equity sales and
trading capabilities, combined with its research expertise, have
4
<PAGE>
contributed to commission revenues increasing, for the years 1991 through
1995, at a compound annual growth rate of 15.6%. In addition, the Company's
Equity Derivatives division provides a broad range of equity and index
options products, while Sprout is one of the oldest and largest groups in the
private equity investment and venture capital industry.
The Financial Services Group provides a broad array of services to
individual investors and the financial intermediaries which represent them.
Pershing is a leading provider of correspondent brokerage services, clearing
transactions for over 600 U.S. brokerage firms which collectively maintain
over 1.3 million client accounts. These client accounts held over $ 143.6
billion of assets at June 30, 1996. During 1995, Pershing accounted for more
than 10% of the daily reported trading volume on the NYSE. In addition,
Pershing's PC Financial Network (Service Mark), a leading on-line discount
broker in the U.S., has experienced significant growth over the past several
years. The Company's Investment Services Group, which consists of
approximately 270 account executives, provides high-net-worth individuals and
medium to smaller size institutions with access to the Company's equity and
fixed-income research, trading services and underwriting and has one of the
highest revenues per account executive in the industry. Through Wood,
Struthers & Winthrop Management Corp. and affiliates the Company provides
investment management and trust services primarily to high-net-worth
individual investors and institutions, and at June 30, 1996 had over $4.8
billion in assets under management.
Apart from its three principal operating groups, the Company also
maintains a separate brokerage subsidiary, Autranet, Inc., which provides
institutional investors with research generated by independent originators
that are not affiliated with Wall Street brokerage firms.
Founded in 1959, the Company initially focused on providing in-depth
investment research to institutional investors. In 1970, the Company became
the first member firm of the New York Stock Exchange, Inc. to be owned
publicly. Fifteen years later, the Company was purchased by subsidiaries of
The Equitable Companies Incorporated ("EQ") (EQ and its subsidiaries other
than the Company, collectively, "Equitable"). Equitable, which as of June 30,
1996, owned an approximately 80% interest in the Company following the
Company's initial public offering in October 1995, is a diversified financial
services organization and one of the world's largest investment management
organizations. AXA is EQ's largest stockholder, beneficially owning at June
30, 1996, approximately 60.7% of EQ's outstanding shares of common stock and
$392.2 million stated value of EQ's Series E convertible preferred stock.
The principal executive offices of the Company are located at 277 Park
Avenue, New York, NY, 10172 and its telephone number is (212) 892-3000. The
Company has 17 additional offices in 14 locations in the U.S., and ten
offices in Europe, Asia and Latin America.
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DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 150,000,000 shares
of Common Stock, par value $0.10 per share and 25,000,000 shares of Preferred
Stock, par value $0.01 per share. As of June 30, 1996, the Company had
53,300,000 shares of Common Stock and 2,250,000 shares of Cumulative
Exchangeable Preferred Stock outstanding. The following summary description
of the capital stock of the Company is qualified in its entirety by reference
to the Certificate of Incorporation and the Bylaws of the Company, copies of
which have been filed with the Commission.
COMMON STOCK
Subject to the rights of the holders of any Preferred Stock which may be
outstanding, each holder of Common Stock on the applicable record date is
entitled to receive such dividends as may be declared by the Board of
Directors out of funds legally available therefor, and, in the event of
liquidation, to share pro rata in any distribution of the Company's assets
after payment or providing for the payment of liabilities and the liquidation
preference of any outstanding Preferred Stock. Each holder of Common Stock is
entitled to one vote for each share held of record on the applicable record
date on all matters presented to a vote of stockholders, including the
election of directors. Holders of Common Stock have no cumulative voting
rights or preemptive rights to purchase or subscribe for any stock or other
securities and there are no conversion rights or redemption or sinking fund
provisions with respect to such stock. All outstanding shares of Common Stock
are fully paid and nonassessable.
The Common Stock is listed on the New York Stock Exchange under the symbol
"DLJ."
The transfer agent for the Common Stock is First Chicago Trust Company of
New York.
PREFERRED STOCK
The Company's Certificate of Incorporation authorizes 25,000,000 shares of
Preferred Stock. The Company's Board of Directors has the authority to issue
shares of Preferred Stock in one or more series and to fix, by resolution,
the terms of such securities, without any further vote or action by the
stockholders.
The applicable Prospectus Supplement will describe the following terms of
any Preferred Stock in respect of which this Prospectus is being delivered
(to the extent applicable to such Preferred Stock): (i) the specific
designation, number of shares, seniority and purchase price; (ii) any
liquidation preference per share; (iii) any date of maturity; (iv) any
redemption, repayment or sinking fund provisions; (v) any dividend rate or
rates and the dates on which any such dividends will be payable (or the
method by which such rates or dates will be determined); (vi) any voting
rights; (vii) if other than the currency of the United States of America, the
currency or currencies including composite currencies in which such Preferred
Stock is denominated and/or in which payments will or may be payable; (viii)
the method by which amounts in respect of such Preferred Stock may be
calculated and any commodities, currencies or indices, or value, rate or
price, relevant to such calculation; (ix) whether such Preferred Stock is
convertible or exchangeable and, if so, the securities or rights into which
such Preferred Stock is convertible or exchangeable, and the terms and
conditions upon which such conversions or exchanges will be effected
including the initial conversion or exchange prices or rates, the conversion
or exchange period and any other related provisions; (x) the place or places
where dividends and other payments on the Preferred Stock will be payable;
and (xi) any additional voting, dividend, liquidation, redemption and other
rights, preferences, privileges, limitations and restrictions.
All shares of Preferred Stock offered hereby, or issuable upon conversion,
exchange or exercise of Securities, will, when issued, be fully paid and
non-assessable. Any shares of Preferred Stock so issued would have priority
over the Common Stock with respect to dividend or liquidation rights or both.
As of June 30, 1996, the Company had 2,250,000 shares of Cumulative
Exchangeable Preferred Stock outstanding.
CUMULATIVE EXCHANGEABLE PREFERRED STOCK
Dividends. Each holder of Cumulative Exchangeable Preferred Stock is
entitled to receive when, as and if declared by the Board of Directors, out
of funds legally available therefor, cumulative cash dividends of $8.83 per
share per annum, payable quarterly in arrears.
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Liquidation. Upon the dissolution, liquidation or winding up of the
Company, the holders of the Cumulative Exchangeable Preferred Stock will be
entitled to receive out of the assets of the Company available for
distribution to stockholders, an amount in cash equal to (i) the Optional
Redemption Price (as defined below), if such dissolution, liquidation or
winding up is voluntary or (ii) $100 per share plus an amount in cash equal
to all dividends accrued and unpaid thereon to the date fixed for
distribution plus accrued interest thereon if such dissolution, liquidation
or winding up is involuntary, in either case before any payment or
distribution shall be made on the Common Stock or on any other class or
series of capital stock of the Company ranking junior to the Cumulative
Exchangeable Preferred Stock.
Exchangeability. Subject to certain conditions, after October 15, 1996,
the Company may exchange the Cumulative Exchangeable Preferred Stock for an
equal principal amount of subordinated notes of the Company bearing a rate of
interest of 9.58% per annum and having the same redemption provisions as the
Cumulative Exchangeable Preferred Stock described below.
Voting Rights. The holders of the Cumulative Exchangeable Preferred Stock
are not entitled to vote at any meeting of stockholders of the Company,
except as set forth below or as otherwise required by law. In the event that
(i) the Company has failed to pay in full the dividends accumulated on the
outstanding shares of the Cumulative Exchangeable Preferred Stock for any six
quarterly dividend payment periods, whether or not consecutive, or (ii) the
Company shall have failed to comply with the provisions for mandatory
redemption described below, then, in each case, the number of directors of
the Company shall be increased by two and holders of shares of Cumulative
Exchangeable Preferred Stock will have the right, voting together as a single
class, to elect such additional directors at the next annual meeting of
stockholders of the Company and at each annual meeting thereafter until the
full dividends accumulated have been paid or the mandatory redemption
provisions have been complied with, as the case may be. Upon termination of
such voting rights, the term of office of each director elected by holders of
the Cumulative Exchangeable Preferred Stock shall terminate and the number of
directors constituting the entire Board of Directors shall be reduced
accordingly. The holders of the Cumulative Exchangeable Preferred Stock will
also be entitled to vote separately as a class in connection with certain
actions by the Company, including (i) any amendment to the Company's
Certificate of Incorporation or the Certificate of Designation relating to
the Cumulative Exchangeable Preferred Stock so as to adversely affect any
powers, preferences or special rights of the Cumulative Exchangeable
Preferred Stock, (ii) any increase in the authorized number of Cumulative
Exchangeable Preferred Stock, (iii) any authorization or issuance of a class
or series of securities ranking senior to the Cumulative Exchangeable
Preferred Stock or (iv) in certain circumstances, a merger or consolidation
or sale, exchange or conveyance of all or substantially all of the assets,
property or business of the Company.
Mandatory Redemption. The Company will redeem all the outstanding shares
of Cumulative Exchangeable Preferred Stock out of funds legally available
therefor at $100 per share plus accrued and unpaid dividends and any accrued
interest thereon on October 15, 2003.
In the event of a Change of Control (as defined below), the Company shall
notify the holders of the Cumulative Exchangeable Preferred Stock in writing
of such event and offer to purchase all of the outstanding shares of the
Cumulative Exchangeable Preferred Stock at $100 per share plus accrued and
unpaid dividends and any accrued interest thereon. "Change of Control" is
defined as (i) other than in the ordinary course of business, the sale or
other disposition of all or substantially all of the assets of the Company to
any person other than EQ or any wholly-owned subsidiary thereof, (ii) the
merger, sale or consolidation of the Company with the effect that EQ ceases
to own directly or indirectly at least 51% of the total voting power of the
surviving corporation or (iii) EQ ceases to own directly or indirectly at
least 51% of the voting stock of The Equitable Life Assurance Society of the
United States. In addition, if prior to October 15, 2003, the Company shall
sell more than 20% of the shares of common stock of Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), the Company shall notify holders
of the Cumulative Exchangeable Preferred Stock in writing of such event and
offer to purchase all the outstanding shares of Cumulative Exchangeable
Preferred Stock at the Optional Redemption Price (as defined below).
Optional Redemption. The Cumulative Exchangeable Preferred Stock may be
redeemed in whole or in part at the option of the Company at any time at the
greater of (A) $100 plus accrued and unpaid
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dividends and any accrued interest thereon and (B) the present value of the
future mandatory redemption and dividend payments which would have been made
except for such optional redemption plus accrued and unpaid dividends and any
accrued interest thereon (the "Optional Redemption Price"). In addition, at
any time, at the option of the Company, up to 750,000 shares of the
Cumulative Exchangeable Preferred Stock may be redeemed with proceeds from
any public offering of Common Stock of the Company at the Optional Redemption
Price calculated using a higher discount rate.
Limitation on Payments. The Cumulative Exchangeable Preferred Stock also
contains certain restrictions on the ability of the Company to pay cash
dividends on, or redeem, repurchase or otherwise acquire or retire any shares
of its capital stock and on the ability of the Company to make payments under
certain long-term incentive compensation plans.
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DESCRIPTION OF DEBT SECURITIES
The Company's Debt Securities, may constitute either senior debt
securities ("Senior Debt Securities") or subordinated debt securities
("Subordinated Debt Securities") of the Company and will be issued in the
case of Senior Debt Securities under an indenture dated as of October 25,
1995 (the "Senior Debt Indenture") between Donaldson, Lufkin & Jenrette,
Inc., as issuer, and The Bank of New York, as trustee and in the case of
Subordinated Debt Securities under an indenture (the "Subordinated Debt
Indenture") between Donaldson, Lufkin & Jenrette, Inc., as issuer and The
Bank of New York, as trustee. The Senior Debt Indenture and the Subordinated
Debt Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures." The Bank of New York, in
its capacity as trustee under either or both of the Indentures is referred to
herein as the "Trustee."
Copies of the Indentures have been incorporated by reference or included
herein as exhibits to the Registration Statement of which this Prospectus is
a part and are also available for inspection at the office of the Trustee.
The Indentures are subject to and governed by the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). Section references contained
herein are to the applicable Indenture. The following summaries of certain
provisions of the Indentures do not purport to be complete, and where
reference is made to particular provisions of the Indentures, such
provisions, including definitions of certain terms, are incorporated by
reference as a part of such summaries or terms, which are qualified in their
entirety by such reference. The Indentures are substantially identical except
for provisions relating to subordination and the Company's negative pledge.
GENERAL
Neither of the Indentures limits the aggregate principal amount of Debt
Securities which may be issued thereunder and each Indenture provides that
Debt Securities may be issued thereunder from time to time in one or more
series. The Debt Securities will be direct, unsecured senior or subordinated
obligations of the Company. Except as described under "--Negative Pledge,"
neither Indenture limits other indebtedness or securities which may be
incurred or issued by the Company or any of its subsidiaries or contains
financial or similar restrictions on the Company or any of its subsidiaries.
The operations of the Company are conducted through its subsidiaries, and,
therefore, the Company is dependent upon the earnings and cash flow of its
subsidiaries to meet its obligations, including obligations under the Debt
Securities. The Debt Securities will be effectively subordinated to all
indebtedness of the Company's subsidiaries. The Company's rights and the
rights of its creditors, including holders of Debt Securities, to participate
in the distribution of assets of any subsidiary upon such subsidiary's
liquidation or reorganization will be subject to prior claims of such
subsidiary's creditors, including trade creditors, except to the extent the
Company may itself be a creditor with recognized claims against such
subsidiary. In addition, net capital requirements under the Exchange Act and
New York Stock Exchange rules applicable to certain of the Company's
subsidiaries could limit the payment of dividends and the making of loans and
advances to the Company by such subsidiaries.
The applicable Prospectus Supplement which accompanies this Prospectus,
sets forth where applicable the following terms of, and information relating
to, the Debt Securities offered thereby: (i) the ranking of such Debt
Securities as senior or subordinated debt securities; (ii) the designation of
such Debt Securities; (iii) the aggregate principal amount of such Debt
Securities; (iv) the date or dates on which principal of and premium, if any,
on such Debt Securities is payable; (v) the rate or rates at which such Debt
Securities shall bear interest, if any, or the method by which such rate
shall be determined, and the basis on which interest shall be calculated if
other than a 360-day year consisting of twelve 30-day months, the date or
dates from which such interest will accrue and on which such interest will be
payable and the related record dates; (vi) if other than the offices of the
Trustee, the place where the principal of and any premium or interest on such
Debt Securities will be payable; (vii) any redemption, repayment or sinking
fund provisions; (viii) if other than denominations of $1,000 or multiples
thereof, the denominations in which such Debt Securities will be issuable;
(ix) if other than the principal amount thereof, the portion of the principal
amount due upon acceleration; (x) if other than U.S. dollars, the currency or
currencies (including composite currencies) in which such Debt Securities are
denominated or payable; (xi) whether such Debt Securities shall be issued in
the form of a Global Security or securities; (xii) any other specific
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terms of such Debt Securities; and (xiii) the identity of any trustees,
depositories, authenticating or paying agents, transfer agents or registrars
with respect to such Debt Securities. (Section 2.3)
Unless otherwise specified in the accompanying Prospectus Supplement,
principal and premium, if any, will be payable, and the Debt Securities will
be transferable and exchangeable without any service charge, at the office of
the Trustee. However, the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection with any
such transfer or exchange. (Sections 2.7, 4.1 and 4.2)
Unless otherwise specified in the accompanying Prospectus Supplement,
interest on any series of Debt Securities will be payable on the interest
payment dates set forth in the accompanying Prospectus Supplement to the
persons in whose names the Debt Securities are registered at the close of
business on the related record date and will be paid, at the option of the
Company, by wire transfer or by checks mailed to such persons. (Sections 2.7,
4.1 and 4.2)
If the Debt Securities are issued as Original Issue Discount Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount, the Federal income tax consequences and other special
considerations applicable to such Original Issue Discount Securities will be
generally described in the Prospectus Supplement.
BOOK-ENTRY SYSTEM
If so specified in the accompanying Prospectus Supplement, Debt Securities
of any series may be issued under a book-entry system in the form of one or
more global Debt Securities (each a "Global Security"). Each Global Security
will be deposited with, or on behalf of a depositary, which, unless otherwise
specified in the accompanying Prospectus Supplement, will be The Depository
Trust Company, New York, New York (the "Depositary"). The Global Securities
will be registered in the name of the Depositary or its nominee.
The Depositary has advised the Company that the Depositary is a limited
purpose trust company organized under the laws of the State of New York, a
"banking organization" within the meaning of the New York banking law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of section 17A of the Exchange Act. The
Depositary was created to hold securities of its participants and to
facilitate the clearance and settlement of securities transactions among its
participants through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of
securities certificates. The Depositary's participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and
certain other organizations, some of whom (and/or their representatives) own
the Depositary. Access to the Depositary's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly.
Upon the issuance of a Global Security in registered form, the Depositary
will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such
Global Security to the accounts of participants. The accounts to be credited
will be designated by the underwriters, dealers or agents. Ownership of
beneficial interests in the Global Security will be limited to participants
or persons that may hold interests through participants. Ownership of
beneficial interests by participants in the Global Security will be shown on,
and the transfer of that ownership interest will be effected only through,
records maintained by such participants. The laws of some jurisdictions may
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to own,
transfer or pledge beneficial interest in a Global Security.
So long as the Depositary or its nominee is the registered owner of a
Global Security, it will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as set forth below, owners of a beneficial
interest in such Global Security will not be entitled to have the Debt
Securities represented thereby registered in their
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names, will not receive or be entitled to receive physical delivery of
certificates representing the Debt Securities represented thereby and will
not be considered the owners or holders thereof under the applicable
Indenture. Accordingly, each person owning a beneficial interest in such
Global Security must rely on the procedures of the Depositary and, if such
person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under
the applicable Indenture. The Company understands that under existing
practice, in the event that the Company requests any action of a holder or a
beneficial owner desires to take any action a holder is entitled to take, the
Depositary would act upon the instructions of, or authorize, the participant
to take such action.
Payment of principal of, and interest on, the Debt Securities will be made
to the Depositary or its nominee, as the case may be, as the registered owner
and holder of the Global Security representing such Debt Securities. None of
the Company, the Trustee, any paying agent or registrar for the Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal or interest on the
payment date thereof in amounts proportionate to their respective beneficial
interests in the principal amount of the Global Security as shown on the
records of the Depositary. The Company expects that payments by participants
to owners of beneficial interests in the Global Security held through such
participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers registered in "street name," and will be the responsibility of such
participants.
A Global Security may not be transferred except as a whole by the
Depositary to a nominee or successor of the Depositary or by a nominee of the
Depositary to another nominee of the Depositary. A Global Security
representing all but not part of the Debt Securities being offered pursuant
to the applicable Prospectus Supplement is exchangeable for Debt Securities
in definitive form of like tenor and terms if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as depositary for such
Global Security or if at any time the Depositary is no longer eligible to be,
or is not in good standing as, a clearing agency registered under the
Exchange Act, and in either case, a successor depositary is not appointed by
the Company within 90 days of receipt by the Company of such notice or of the
Company becoming aware of such ineligibility, or (ii) the Company in its sole
discretion at any time determines not to have all of the Debt Securities
represented by a Global Security and notifies the Trustee thereof. A Global
Security exchangeable pursuant to the preceding sentence shall be
exchangeable for Debt Securities registered in such names and in such
authorized denominations as the Depositary for such Global Security shall
direct.
SENIOR DEBT
Payment of the principal of, premium, if any, and interest on Senior Debt
Securities issued under the Senior Debt Indenture will rank pari passu with
all other unsecured and unsubordinated debt of the Company.
SUBORDINATED DEBT
Payment of the principal of, premium, if any, and interest on Subordinated
Debt Securities issued under the Subordinated Debt Indenture will be
subordinate and junior in right of payment, to the extent and in the manner
set forth in the Subordinated Debt Indenture, to all Senior Indebtedness of
the Company. The Subordinated Debt Indenture does not contain any limitation
on the amount of Senior Indebtedness that can be incurred by the Company.
Indebtedness issued or to be issued pursuant to the Indenture between the
Company and The Bank of New York, as Trustee, providing for the issuance of
junior subordinated debt securities of the Company is subordinate in right of
payment to the Subordinated Debt Securities. As of June 30, 1996, no junior
subordinated debt securities were outstanding.
The Subordinated Debt Indenture provides that no payment may be made by or
on behalf of the Company on account of any obligation or, to the extent the
subordination thereof is permitted by
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applicable law, claim in respect of the Subordinated Debt Securities,
including the principal of, premium, if any, or interest on the Subordinated
Debt Securities, or to redeem (or make a deposit in redemption of), defease
(other than payments made by the Trustee pursuant to the provisions of the
Indenture described under "--Discharge, Defeasance and Covenant Defeasance"
with respect to a defeasance permitted by the Indenture, including the
subordination provisions thereof) or acquire any of the Subordinated Debt
Securities for cash, property or securities, (i) upon the maturity of the
Designated Senior Indebtedness or any other Senior Indebtedness with an
aggregate principal amount in excess of $1.0 million by lapse of time,
acceleration or otherwise, unless and until all principal of, premium, if
any, and interest on such Senior Indebtedness and all other obligations in
respect thereof are first paid in full in cash or cash equivalents or such
payment is duly provided for, or unless and until any such maturity by
acceleration has been rescinded or waived or (ii) in the event of default in
the payment of any principal of, premium, if any, or interest on or any other
amount payable in respect of the Designated Senior Indebtedness or any other
Senior Indebtedness with an aggregate principal amount in excess of $1.0
million when it becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise, unless and until such
payment default has been cured or waived or has otherwise ceased to exist.
Upon the happening of a default (any event that, after notice or passage
of time would be an event of default) or an event of default (any event that
permits the holders of Senior Indebtedness or their representative or
representatives immediately to accelerate its maturity) with respect to any
Senior Indebtedness, other than a default in payment of the principal of,
premium, if any, or interest on such Senior Indebtedness, upon written notice
of such default or event of default given to the Company and the Trustee by
the holders of a majority of the principal amount outstanding of the
Designated Senior Indebtedness or their representative or, at such time as
there is no Designated Senior Indebtedness, by the holders of a majority of
the principal amount outstanding of all Senior Indebtedness or their
representative or representatives or, if such default or event of default
results from the acceleration of the Subordinated Debt Securities,
immediately upon such acceleration, then, unless and until such default or
event of default has been cured or waived or otherwise has ceased to exist,
no payment may be made by or on behalf of the Company with respect to any
obligation or claim in respect of the Subordinated Debt Securities, including
the principal of, premium, if any, or interest on the Subordinated Debt
Securities or to redeem (or make a deposit in redemption of), defease or
acquire any of the Subordinated Debt Securities for cash, property or
securities. Notwithstanding the foregoing, unless the Senior Indebtedness in
respect of which such default or event of default exists has been declared
due and payable in its entirety within 180 days after the date written notice
of such default or event of default is delivered as set forth above or the
date of such acceleration as the case may be (the "Payment Blockage Period"),
and such declaration or acceleration has not been rescinded, the Company
shall be required then to pay all sums not paid to the Holders of the
Subordinated Debt Securities during the Payment Blockage Period due to the
foregoing prohibitions and to resume all other payments as and when due on
the Subordinated Debt Securities. Any number of such notices may be given;
provided however, that (i) during any 360 consecutive days, only one Payment
Blockage Period shall commence and (ii) any such default or event of default
that existed upon the commencement of a Payment Blockage Period may not be
the basis for the commencement of any other Payment Blockage Period, unless
such default or event of default shall have been cured or waived for a period
of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of any obligation or claim in respect of the Subordinated Debt
Securities at a time when such payment or distribution is prohibited by the
foregoing provisions, such payment or distribution shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders
of the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full
in cash or cash equivalents of all such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
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Upon any distribution of assets of the Company upon any dissolution,
winding up, total or partial liquidation or reorganization or readjustment of
the Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or a similar proceeding or upon assignment for the benefit of
creditors, or any other marshaling of the assets and liabilities of the
Company or otherwise, (i) the holders of all Senior Indebtedness would first
be entitled to receive payment in full in cash or cash equivalents (or have
such payment duly provided for) of the principal, premium, if any, and
interest payable in respect therefor before the Holders would be entitled to
receive any payment on account of the principal of, premium, if any, and
interest on the Subordinated Debt Securities, and (ii) any payment or
distribution of assets of the Company of any kind or character, from any
source, whether in cash, property or securities to which the Holders or the
Trustee on behalf of the Holders would be entitled, except for the
subordination provisions contained in the Indenture, would be paid by the
liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of Senior Indebtedness remaining unpaid
or unprovided for or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay or
provide for the payment in full in cash or cash equivalents of all such
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are authorized to demand specific performance of the
provisions with respect to subordination in the Indenture at any time when
the Company or any Holder shall have failed to comply with any provision with
respect to subordination in the Indenture applicable to it, and the Company
and each Holder irrevocably waives any defense based on the adequacy of a
remedy at law that might be asserted as a bar to the remedy of specific
performance of such subordination provision in any action brought therefor by
the holders of the Senior Indebtedness and their respective representatives.
By reasons of such subordination, in the event of the liquidation or
insolvency of the Company, creditors of the Company who are not holders of
Senior Indebtedness, including Holders of the Subordinated Debt Securities,
may recover less, ratably, than holders of Senior Indebtedness.
No provision contained in the Indenture or the Subordinated Debt
Securities will affect the obligation of the Company, which is absolute and
unconditional, to pay, when due, principal of, premium, if any, and interest
on the Subordinated Debt Securities. The subordination provisions of the
Indenture and the Subordinated Debt Securities will not prevent the
occurrence of any Event of Default under the Indenture or limit the rights of
the Trustee or any Holder, except as provided in the seven preceding
paragraphs, to pursue any other rights or remedies with respect to the
Subordinated Debt Securities.
NEGATIVE PLEDGE
The Senior Debt Indenture provides that the Company and any successor
corporation will not, and will not permit any Subsidiary to, create, assume,
incur or guarantee any indebtedness for borrowed money secured by a pledge,
lien or other encumbrance except for Permitted Liens (as defined in the
Senior Debt Indenture) on the Voting Stock of DLJSC or any other Subsidiary
of the Company which shall hereafter succeed by merger or otherwise to all or
substantially all of the business of DLJSC (a "DLJSC Successor"), without
making effective provision whereby the Senior Debt Securities will be secured
equally and ratably with such secured indebtedness. (Senior Debt Indenture,
Section 4.3)
CERTAIN DEFINITIONS
The term "Holder" or "Securityholder" as defined in the applicable
Indenture means the registered holder of any Debt Security with respect to
registered Debt Securities and the bearer of any unregistered Debt Security
or any coupon appertaining thereto, as the case may be.
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The term "Designated Senior Indebtedness" means any class of Senior
Indebtedness the aggregate principal amount outstanding of which exceeds $50
million and which is specifically designated in the instrument evidencing
such Senior Indebtedness or the agreement under which such Senior
Indebtedness arises as "Designated Senior Indebtedness."
The term "Original Issue Discount Security" as defined in the applicable
Indenture means any Debt Security that provides for an amount less than the
principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2 of the
applicable Indenture.
The term "Senior Indebtedness" as defined in the Subordinated Debt
Indenture means the principal of and premium, if any, and interest on (a) all
indebtedness of the Company, whether outstanding on the date of the
Subordinated Debt Indenture or thereafter created, (i) for money borrowed by
the Company, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company, (iii) in
respect of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the payment of
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and supplements
to, any such indebtedness. As used in the preceding sentence, the term
"purchase money indebtedness" means indebtedness evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or
other security interest) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, unless by its terms such indebtedness is
subordinated to other indebtedness of the Company. Notwithstanding anything
to the contrary in the Subordinated Debt Indenture or the Subordinated Debt
Securities, Senior Indebtedness shall not include, (i) any indebtedness of
the Company which, by its terms or the terms of the instrument creating or
evidencing it, is subordinate in right of payment to or pari passu with the
Subordinated Debt Securities or (ii) any indebtedness of the Company to a
subsidiary of the Company. (Subordinated Debt Indenture, Section 1.1)
The term "Subsidiary" as defined in the applicable Indenture means with
respect to any Person, any corporation, association or other business entity
of which more than 50% of the outstanding Voting Stock (as defined in the
applicable Indenture) is owned directly or indirectly, by such Person and one
or more other Subsidiaries of such Person.
RESTRICTIONS ON MERGERS AND SALES OF ASSETS
Under each Indenture, the Company shall not consolidate with, merge with
or into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially
as an entirety in one transaction or a series of related transactions) to,
any Person (other than a consolidation with or merger with or into a
Subsidiary or a sale, conveyance, transfer, lease or other disposition to a
Subsidiary) or permit any Person to merge with or into the Company unless:
(a) either (i) the Company shall be the continuing Person or (ii) the Person
(if other than the Company) formed by such consolidation or into which the
Company is merged or that acquired or leased such property and assets of the
Company shall be a corporation organized and validly existing under the laws
of the United States of America or any jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, all of the obligations of the Company on all of the Debt Securities
and under the applicable Indenture and the Company shall have delivered to
the Trustee an opinion of counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision and
that all conditions precedent provided for in the applicable Indenture
relating to such transaction have been complied with and that such
supplemental indenture constitutes the legal, valid and binding obligation of
the Company or such successor enforceable against such entity in accordance
with the terms, subject to customary exceptions; and (b) the Company shall
have delivered to the Trustee an officers' certificate to the effect that
immediately after giving effect to such transaction, no Default (as defined
in the applicable Indenture) shall have occurred and be continuing and an
opinion of counsel as to the matters set forth in paragraph (a) above.
(Section 5.1)
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EVENTS OF DEFAULT
Events of Default defined in the applicable Indenture with respect to the
Debt Securities of any series are: (a) the Company defaults in the payment of
all or any part of the principal of any Debt Security of such series when the
same becomes due and payable at maturity, upon acceleration, redemption or
mandatory repurchase, including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any Debt Security
of such series when the same becomes due and payable, and such default
continues for a period of 30 days; (c) the Company defaults in the
performance of or breaches any other covenant or agreement of the Company in
the applicable Indenture with respect to any Debt Security of such series or
in the Debt Securities of such series and such default or breach continues
for a period of 60 consecutive days after written notice thereof has been
given to the Company by the Trustee or to the Company and the Trustee by the
Holders of 25% or more in aggregate principal amount of the Debt Securities
of all series under the applicable Indenture affected thereby; (d) an
involuntary case or other proceeding shall be commenced against the Company
or DLJSC (including for purposes of paragraph (d) and (e) hereof any DLJSC
Successor) with respect to the Company or DLJSC or their respective debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of the Company or DLJSC or for any substantial part
of the property and assets of the Company or DLJSC, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or DLJSC
under any bankruptcy, insolvency or other similar law now or hereafter in
effect; (e) the Company or DLJSC (i) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary
case under any such law, (ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or DLJSC or for all or
substantially all of the property and assets of the Company or DLJSC or (iii)
effects any general assignment for the benefit of creditors; (f) an event of
default, as defined in any one or more indentures or instruments evidencing
or under which the Company has at the date of the applicable Indenture or
shall thereafter have outstanding an aggregate of at least $25,000,000
aggregate principal amount of indebtedness for borrowed money, shall happen
and be continuing and such indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which the
same would otherwise have become due and payable, and such acceleration shall
not be rescinded or annulled within ten days after notice thereof shall have
been given to the Company by the Trustee (if such event be known to it), or
to the Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Debt Securities at the time outstanding under the
applicable Indenture; provided that if such event of default under such
indentures or instruments shall be remedied or cured by the Company or waived
by the holders of such indebtedness, then the Event of Default under the
applicable Indenture by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of the Securityholders; (g) failure by the Company
to make any payment at maturity, including any applicable grace period, in
respect of at least $25,000,000 aggregate principal amount of indebtedness
for borrowed money and such failure shall have continued for a period of ten
days after notice thereof shall have been given to the Company by the Trustee
(if such event be known to it), or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the Debt Securities
at the time outstanding under the applicable Indenture; provided that if such
failure shall be remedied or cured by the Company or waived by the holders of
such indebtedness, then the Event of Default under the applicable Indenture
by reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the Trustee or
any of the Securityholders; or (h) any other Event of Default established
with respect to any series of Debt Securities issued pursuant to the
applicable Indenture occurs. (Section 6.1)
Each Indenture provides that if an Event of Default described in clauses
(a) or (b) of the immediately preceding paragraph with respect to the Debt
Securities of any series then outstanding thereunder occurs and is
continuing, then, and in each and every such case, except for any series of
Debt Securities the principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of any such affected series then
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outstanding under the applicable Indenture (each such series treated as a
separate class) by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire principal amount (or, if
the Debt Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to the applicable Indenture) of all
Debt Securities of such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable. If an Event of Default
described in clauses (c) or (h) of the immediately preceding paragraph with
respect to the Debt Securities of one or more series then outstanding under
the applicable Indenture occurs and is continuing, then, in each and every
such case, except for any series of Debt Securities the principal of which
shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount (or, if the Debt
Securities of any such series are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof established
pursuant to the applicable Indenture) of the Debt Securities of all such
affected series then outstanding under the applicable Indenture (treated as a
single class) by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire principal amount (or, if
the Debt Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to the applicable Indenture) of all
Debt Securities of all such affected series, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of
Default described in clauses (d) or (e) of the immediately preceding
paragraph occurs and is continuing, then the principal amount (or, if any
Debt Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
the applicable Indenture) of all the Debt Securities then outstanding under
the applicable Indenture and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee to the full extent permitted by applicable law. If an
Event of Default described in clauses (f) or (g) of the immediately preceding
paragraph, or in clauses (c) or (h) of the immediately preceding paragraph
with respect to the Debt Securities of all series then outstanding under the
applicable Indenture, occurs and is continuing, then, in each and every such
case, either the Trustee or the Holders of not less than 25% in aggregate
principal amount (or, if the Debt Securities of any outstanding series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to the applicable
Indenture) of all Debt Securities of any series then outstanding under the
applicable Indenture except for any series of Debt Securities the principal
of which shall have already become due and payable (treated as a single
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the Debt
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to the applicable Indenture) of all Debt
Securities of any series then outstanding under the applicable Indenture, and
the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.
Upon certain conditions such declarations may be rescinded and annulled and
past defaults may be waived by the Holders of a majority in principal of the
then outstanding Debt Securities of all such series that have been
accelerated under the applicable Indenture (voting as a single class).
(Section 6.2) Because the ability of Holders to declare the Debt Securities
of any series due and payable upon an Event of Default under clauses (c),
(f), (g) or (h) of the immediately preceding paragraph depends on the
requisite action by Holders of all affected series of Debt Securities under
the applicable Indenture, if there is more than one series of Debt Securities
outstanding, Holders of a particular series of Debt Securities may be unable
to declare the Debt Securities under the applicable Indenture due and payable
upon an Event of Default described in clauses (c), (f), (g) or (h) of the
immediately preceding paragraph without action by Holders of such other
series. In October 1995, the Company issued $500,000,000 in aggregate
principal amount of 6 7/8% Senior Notes due 2005 under the Senior Debt
Indenture and in February 1996 issued $250,000,000 in aggregate principal
amount of 5 5/8% Medium-Term-Notes due 2016 under the Senior Debt Indenture,
all of which were outstanding as of the date hereof.
Each Indenture contains a provision under which, subject to the duty of
the Trustee during a default to act with the required standard of care, (i)
the Trustee may rely and shall be protected in acting or
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refraining from acting upon any officers' certificate, opinion of counsel (or
both), resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper person or persons
and the Trustee need not investigate any fact or matter stated in the
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit; (ii) before
the Trustee acts or refrains from acting, it may require an officers'
certificate and/or an opinion of counsel, which shall conform to the
requirements of the applicable Indenture and the Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion; subject to the terms of the applicable Indenture,
whenever in the administration of the trusts of the applicable Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any action under
the applicable Indenture, such matter (unless other evidence in respect
thereof be specifically prescribed in the applicable Indenture) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an officers' certificate delivered
to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions
of the applicable Indenture upon the faith thereof; (iii) the Trustee may act
through its attorneys and agents not regularly in its employ and shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed with due care; (iv) any request, direction, order or demand of the
Company mentioned in the applicable Indenture shall be sufficiently evidenced
by an officers' certificate (unless other evidence in respect thereof be
specifically prescribed in the applicable Indenture); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Company; (v) the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
the applicable Indenture at the request, order or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might
be incurred by it in compliance with such request, order or direction; (vi)
the Trustee shall not be liable for any action it takes or omits to take in
good faith that it believes to be authorized or within its rights or powers
or for any action it takes or omits to take in accordance with the direction
of the Holders in accordance with the applicable Indenture relating to the
time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee,
under the applicable Indenture; (vii) the Trustee may consult with counsel of
its selection and the advice of such counsel or any opinion of counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it under the applicable Indenture
in good faith and in reliance thereon; and (viii) prior to the occurrence of
an Event of Default under the applicable Indenture and after the curing or
waiving of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, officers' certificate, opinion of counsel, Board Resolution,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other paper
or document unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Debt Securities of all
series affected then outstanding under the applicable Indenture; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of the applicable
Indenture, the Trustee may require reasonable indemnity against such expenses
or liabilities as a condition to proceeding. (Section 7.2)
Subject to such provisions in the applicable Indenture for the
indemnification of the Trustee and certain other limitations, the Holders of
at least a majority in aggregate principal amount (or, if any Debt Securities
are Original Issue Discount Securities, such portion of the principal as may
be specified in the terms thereof established pursuant to the applicable
Indenture) of the outstanding Debt Securities under the applicable Indenture
of all series affected (voting as a single class) may direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series by the applicable Indenture;
provided, that the Trustee may refuse to follow any direction that conflicts
with law or the
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applicable Indenture, that may involve the Trustee in personal liability, or
that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders not joining in the giving of such direction; and provided
further, that the Trustee may take any other action it deems proper that is
not inconsistent with any directions received from Holders of Debt Securities
pursuant to this paragraph. (Section 6.5)
Subject to various provisions in the applicable Indenture, the Holders of
at least a majority in principal amount (or, if the Debt Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to the applicable
Indenture) of the outstanding Debt Securities under the applicable Indenture
of all series affected (voting as a single class), by notice to the Trustee,
may waive an existing Default or Event of Default with respect to the Debt
Securities of such series and its consequences, except a Default in the
payment of principal of or interest on any Debt Security as specified in
clauses (a) or (b) of Section 6.1 of the applicable Indenture or in respect
of a covenant or provision of the applicable Indenture which cannot be
modified or amended without the consent of the Holder of each outstanding
Debt Security affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default with respect to the Debt Securities of such
series arising therefrom shall be deemed to have been cured, for every
purpose of the applicable Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right
consequent thereto. (Section 6.4)
Each Indenture provides that no Holder of any Debt Securities of any
series may institute any proceeding, judicial or otherwise, with respect to
the applicable Indenture or the Debt Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy under the
applicable Indenture, unless: (i) such Holder has previously given to the
Trustee written notice of a continuing Event of Default with respect to the
Debt Securities of such series; (ii) the Holders of at least 25% in aggregate
principal amount of outstanding Debt Securities of all such series affected
under the applicable Indenture shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name
as Trustee under the applicable Indenture; (iii) such Holder or Holders have
offered to the Trustee indemnity reasonably satisfactory to the Trustee
against any costs, liabilities or expenses to be incurred in compliance with
such request; (iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and (v) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Debt Securities of all such affected
series under the applicable Indenture have not given the Trustee a direction
that is inconsistent with such written request. A Holder may not use the
applicable Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder. (Section 6.6)
Each Indenture contains a covenant that the Company will file with the
Trustee, within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
(Section 4.5)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides with respect to each series of Debt Securities
that the Company may terminate its obligations under the Debt Securities of
any series and the applicable Indenture with respect to Debt Securities of
such series if: (i) all Debt Securities of such series previously
authenticated and delivered, with certain exceptions, have been delivered to
the Trustee for cancellation and the Company has paid all sums payable by it
under the applicable Indenture; or (ii) (a) the Debt Securities of such
series mature within one year or all of them are to be called for redemption
within one year under arrangements satisfactory to the Trustee for giving the
notice of redemption, (b) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such Debt
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee),
without consideration of any reinvestment, to pay the principal of and
interest on the Debt Securities of such series to maturity or redemption, as
the case may be, and to pay all other sums payable by it under the applicable
Indenture, and (c) the Company delivers to the Trustee an officers'
certificate and an opinion of counsel, in each case
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stating that all conditions precedent provided for in the applicable
Indenture relating to the satisfaction and discharge of the applicable
Indenture with respect to the Debt Securities of such series have been
complied with. With respect to the foregoing clause (i), only the Company's
obligations to compensate and indemnify the Trustee under the applicable
Indenture shall survive. With respect to the foregoing clause (ii), only the
Company's obligations to execute and deliver Debt Securities of such series
for authentication, to set the terms of the Debt Securities of such series,
to maintain an office or agency in respect of the Debt Securities of such
series, to have moneys held for payment in trust, to register the transfer or
exchange of Debt Securities of such series, to deliver Debt Securities of
such series for replacement or to be canceled, to compensate and indemnify
the Trustee and to appoint a successor trustee, and its right to recover
excess money held by the Trustee shall survive until such Debt Securities are
no longer outstanding. Thereafter, only the Company's obligations to
compensate and indemnify the Trustee, and its right to recover excess money
held by the Trustee shall survive. (Section 8.1)
Each Indenture provides that the Company (i) will be deemed to have paid
and will be discharged from any and all obligations in respect of the Debt
Securities of any series under the applicable Indenture, and the provisions
of the applicable Indenture will, except as noted below, no longer be in
effect with respect to the Debt Securities of such series ("legal
defeasance") and (ii) may, in the case of the Senior Debt Indenture, omit to
comply with any term, provision or condition of the applicable Indenture
described above under "--Negative Pledge" (or in the case of each Indenture
omit to comply with any other specific covenant relating to such series
provided for in a Board Resolution or supplemental indenture which may by its
terms be defeased pursuant to such Indenture), and such omission shall be
deemed not to be an Event of Default under clauses (c) or (h) of the first
paragraph of "--Events of Default" with respect to the outstanding Debt
Securities of a series under the applicable Indenture ("covenant
defeasance"); provided that the following conditions shall have been
satisfied: (a) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the Debt
Securities of such series, for payment of the principal of and interest on
the Debt Securities of such series, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee)
without consideration of any reinvestment and after payment of all federal,
state and local taxes or other charges and assessments in respect thereof
payable by the Trustee, to pay and discharge the principal of and accrued
interest on the outstanding Debt Securities of such series to maturity or
earlier redemption (irrevocably provided for under arrangements satisfactory
to the Trustee), as the case may be; (b) such deposit will not result in a
breach or violation of, or constitute a default under, the applicable
Indenture or any other material agreement or instrument to which the Company
is a party or by which it is bound; (c) no Default with respect to such Debt
Securities of such series shall have occurred and be continuing on the date
of such deposit; (d) the Company shall have delivered to the Trustee an
opinion of counsel that (1) the Holders of the Debt Securities of such series
will not recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this provision of the
applicable Indenture and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred and (2) the Holders of
the Debt Securities of such series have a valid security interest in the
trust funds subject to no prior liens under the Uniform Commercial Code, and
(e) the Company has delivered to the Trustee an officers' certificate and an
opinion of counsel, in each case stating that all conditions precedent
provided for the applicable Indenture relating to the defeasance contemplated
have been complied with. In the case of legal defeasance under clause (i)
above, the opinion of counsel referred to in clause (d)(1) above may be
replaced by a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect. Subsequent to legal defeasance under
clause (i) above, the Company's obligations to execute and deliver Debt
Securities of such series for authentication, to set the terms of the Debt
Securities of such series, to maintain an office or agency in respect of the
Debt Securities of such series, to have moneys held for payment in trust, to
register the transfer or exchange of Debt Securities of such series, to
deliver Debt Securities of such series for replacement or to be canceled, to
compensate and indemnify the Trustee and to appoint a successor trustee, and
its right to recover excess money held by the Trustee shall survive until
such Debt Securities are no longer
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outstanding. After such Debt Securities are no longer outstanding, in the
case of legal defeasance under clause (i) above, only the Company's
obligations to compensate and indemnify the Trustee and its right to recover
excess money held by the Trustee shall survive. (Sections 8.2 and 8.3)
MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee may amend or
supplement the applicable Indenture or the Debt Securities of any series
without notice to or the consent of any Holder: (1) to cure any ambiguity,
defect or inconsistency in the applicable Indenture; provided that such
amendments or supplements shall not materially and adversely affect the
interests of the Holders; (2) to comply with Article 5 of the applicable
Indenture in connection with a consolidation or merger of the Company or the
sale, conveyance, transfer, lease or other disposal of all or substantially
all of the property and assets of the Company; (3) to comply with any
requirements of the Commission in connection with the qualification of the
applicable Indenture under the Trust Indenture Act; (4) to evidence and
provide for the acceptance of appointment under the applicable Indenture with
respect to the Debt Securities of any or all series by a successor Trustee;
(5) to establish the form or forms or terms of Debt Securities of any series
or of the coupons pertaining to such Debt Securities as permitted under the
applicable Indenture; (6) to provide for uncertificated or unregistered Debt
Securities and to make all appropriate changes for such purpose; or (7) to
make any change that does not materially and adversely affect the rights of
any Holder. (Section 9.1)
Each Indenture also contains provisions whereby the Company and the
Trustee, subject to certain conditions, without prior notice to any Holders,
may amend the applicable Indenture and the outstanding Debt Securities of any
series with the written consent of the Holders of a majority in principal
amount of the Debt Securities then outstanding under the applicable Indenture
of all series affected by such amendment (all such series voting as one
class), and the Holders of a majority in principal amount of the outstanding
Debt Securities under the applicable Indenture of all series affected thereby
(all such series voting as one class) by written notice to the Trustee may
waive future compliance by the Company with any provision of the applicable
Indenture or the Debt Securities of such series. Notwithstanding the
foregoing provisions, without the consent of each Holder affected thereby, an
amendment or waiver, including a waiver pursuant to Section 6.4 of the
applicable Indenture, may not: (i) extend the stated maturity of the
principal of, or any sinking fund obligation or any installment of interest
on, such Holder's Debt Security, or reduce the principal thereof or the rate
of interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely affect
the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of such
Holder, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof or the amount thereof provable in bankruptcy, or change any place of
payment where, or the currency in which, any Debt Security or any premium or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the due date therefor; (ii)
reduce the percentage in principal amount of outstanding Debt Securities of
the relevant series the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain provisions
of the applicable Indenture or certain Defaults and their consequences
provided for in the applicable Indenture; (iii) waive a Default in the
payment of principal of or interest on any Debt Security of such Holder; or
(iv) modify any of the provisions of this provision of the applicable
Indenture, except to increase any such percentage or to provide that certain
other provisions of the applicable Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Debt Security
thereunder affected thereby. A supplemental indenture which changes or
eliminates any covenant or other provision of the applicable Indenture which
has expressly been included solely for the benefit of one or more particular
series of Debt Securities, or which modifies the rights of Holders of Debt
Securities of such series with respect to such covenant or provision, shall
be deemed not to affect the rights under the applicable Indenture of the
Holders of Debt Securities of any other series or of the coupons appertaining
to such Debt Securities. It shall not be necessary for the consent of any
Holder under this provision of the applicable Indenture to approve the
particular form of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance thereof. After an
20
<PAGE>
amendment, supplement or waiver under this section of the applicable
Indenture becomes effective, the Company shall give to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. The
Company will mail supplemental indentures to Holders upon request. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver. (Section 9.2)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by the laws of the
State of New York. (Section 10.8 and Section 11.8)
CONCERNING THE TRUSTEE
The Company and its subsidiaries maintain ordinary banking and trust
relationships with The Bank of New York and its affiliates.
21
<PAGE>
PLAN OF DISTRIBUTION
Offered Securities may be sold (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers.
Offers to purchase Offered Securities may be solicited by agents
designated by the Company from time to time. Any such agent involved in the
offer or sale of the Offered Securities will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment. Any such agent may be deemed to be an underwriter, as that term
is defined in the Securities Act, of the Offered Securities so offered and
sold.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is
reached, and the names of the specific managing underwriter or underwriters,
as well as any other underwriters, and the terms of the transactions,
including compensation of the underwriters and dealers, if any, will be set
forth in the Prospectus Supplement, which will be used by the underwriters to
make resales of Offered Securities.
If a dealer is utilized in the sale of Offered Securities, the Company
will sell such Offered Securities to the dealer, as principal. The dealer may
then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. The name of the dealer and
the terms of the transactions will be set forth in the Prospectus Supplement
relating thereto.
Offers to purchase Offered Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales will be
described in the Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under agreements which
may be entered into with the Company, to indemnification by the Company
against certain liabilities, including liabilities under the 1933 Act, and
any such agents, underwriters or dealers, or their affiliates may be
customers of, engage in transactions with or perform services for the
Company, in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Offered Securities from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Such Contracts will be subject to only those
conditions set forth in the Prospectus Supplement. A commission indicated in
the Prospectus Supplement will be paid to underwriters and agents soliciting
purchases of Offered Securities pursuant to any such Contracts accepted by
the Company.
This Prospectus, together with the Prospectus Supplement, may also be used
by DLJSC in connection with offers and sales of Offered Securities related to
market-making transactions by and through DLJSC, at negotiated prices related
to prevailing market prices at the time of sale or otherwise. DLJSC may act
as principal or agent in such transactions.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Securities and certain other legal matters in connection with
the offering of the Securities will be passed upon by Michael A. Boyd, Senior
Vice President and General Counsel to the Company, and Davis Polk & Wardwell.
Mr. Boyd owns 22,466 restricted stock units of the Company and holds options
to purchase 39,772 shares of Common Stock. Davis Polk & Wardwell from time to
time provides legal services to the Company and its subsidiaries.
22
<PAGE>
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company as of December 31, 1995 and 1994 and for each of the years in the
three-year period ended December 31, 1995 have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated
herein by reference, and upon the authority of said firm as experts in
accounting and auditing.
23
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THEREOF. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT SHALL
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Available Information ...................... 2
Incorporation of Certain Information by
Reference ................................. 2
Use of Proceeds ............................ 3
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends ................. 3
The Company ................................ 4
Description of Capital Stock ............... 6
Description of Debt Securities ............. 9
Plan of Distribution ....................... 22
Legal Matters .............................. 22
Experts .................................... 23
</TABLE>
$500,000,000
DONALDSON, LUFKIN &
JENRETTE, INC.
DEBT SECURITIES
PREFERRED STOCK
PROSPECTUS
, 1996
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 15, 1996
PROSPECTUS
, 1996
DONALDSON, LUFKIN & JENRETTE, INC.
JUNIOR SUBORDINATED DEBT SECURITIES
DLJ CAPITAL TRUST I
DLJ CAPITAL TRUST II
DLJ CAPITAL TRUST III
DLJ CAPITAL TRUST IV
PREFERRED SECURITIES GUARANTEED
TO THE EXTENT SET FORTH HEREIN BY
DONALDSON, LUFKIN & JENRETTE, INC.
Donaldson Lufkin & Jenrette, Inc. (the "Company") may from time to time
offer unsecured junior subordinated debt securities (the "Junior Subordinated
Debt Securities") consisting of debentures, notes or other evidences of
indebtedness in one or more series and in amounts, at prices and on terms to
be determined at or prior to the time of any such offering. The Junior
Subordinated Debt Securities when issued will be unsecured obligations of the
Company. The Company's obligations under the Junior Subordinated Debt
Securities will be subordinate and junior in right of payment to all Senior
Indebtedness (as defined herein) of the Company.
DLJ Capital Trust I, DLJ Capital Trust II, DLJ Capital Trust III and DLJ
Capital Trust IV (the "DLJ Trusts"), each a statutory business trust formed
under the laws of the State of Delaware, may offer and sell, from time to
time, preferred securities representing undivided beneficial interests in the
assets of the respective DLJ Trust ("Preferred Securities"). The payment of
periodic cash distributions ("distributions") with respect to Preferred
Securities of each of the DLJ Trusts out of moneys held by the Property
Trustee (as defined herein) of each of the DLJ Trusts, and payments on
liquidation of each DLJ Trust and on redemption of Preferred Securities of
such DLJ Trust, will be guaranteed by the Company as and to the extent
described herein (each such guarantee a "Preferred Securities Guarantee").
See "Description of the Preferred Securities Guarantees." The Company's
obligation under each Preferred Securities Guarantee is an unsecured
obligation of the Company and will rank (i) subordinate and junior in right
of payment to all other liabilities of the Company, including the Junior
Subordinated Debt Securities, except those made pari passu or subordinate by
their terms, and (ii) senior to all capital stock now or hereafter issued by
the Company and to any guarantee now or hereafter entered into by the Company
in respect of any of its capital stock. Junior Subordinated Debt Securities
may be issued and sold from time to time in one or more series by the Company
to a DLJ Trust, or a trustee of such trust, in connection with the investment
of the proceeds from the offering of Preferred Securities and Common
Securities (as defined herein) of such DLJ Trust. The Junior Subordinated
Debt Securities purchased by a DLJ Trust may be subsequently distributed pro
rata to holders of Preferred Securities and Common Securities in connection
with the dissolution of such DLJ Trust, upon the occurrence of certain events
as may be described in an accompanying Prospectus Supplement.
Specific terms of the Junior Subordinated Debt Securities or any series or
the Preferred Securities of any DLJ Trust in respect of which this Prospectus
is being delivered (the "Offered Securities") will be set forth in a
Prospectus Supplement with respect to such Offered Securities, which will
describe, without limitation and where applicable, the following: (i) in the
case of Junior Subordinated Debt Securities, the specific designation,
aggregate principal amount, authorized denomination, maturity, premium, if
any, redemption or sinking fund provisions, if any, interest rate (which may
be fixed or variable), if any, the time and method of calculating interest
payments, if any, dates on which premium, if any, and interests, if any, will
be payable, the right of the Company, if any, to defer payment of interest on
the Junior Subordinated Debt Securities and the maximum length of such
deferral period, the initial public offering price, and any listing on a
securities exchange and other specific terms of the offering; and (ii) in the
case of Preferred Securities, the specific designation, number of securities,
liquidation amount per security, initial public offering price, and any
listing on a securities exchange, distribution rate (or method of calculation
thereof), dates on which distributions shall be payable and dates from which
distributions shall accrue, voting rights (if any), terms for any conversion
or exchange into other securities, any redemption or sinking fund provisions,
any other rights, preferences, privileges, limitations or restrictions
relating to the Preferred Securities and the terms upon which the proceeds of
the sale of the Preferred Securities shall be used to purchase a specific
series of Junior Subordinated Debt Securities of the Company. Unless
otherwise indicated in the Prospectus Supplement, the Company does not intend
to list any of the securities on a national securities exchange.
The Offered Securities may be offered in amounts, at prices and on terms
to be determined at the time of offering. Any Prospectus Supplement relating
to any series of Offered Securities will contain information concerning
certain United States Federal income tax considerations, if applicable, to
the Offered Securities. By separate prospectus, the form of which is included
in the Registration Statement of which this Prospectus is a part, the Company
may offer from time to time debt securities or preferred stock. The aggregate
initial public offering price of the securities to be offered by this
Prospectus and such other prospectus shall not exceed $500,000,000.
The Offered Securities may be offered directly through agents designated
from time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan of
Distribution." Any such agents, dealers or underwriters will be set forth in
a Prospectus Supplement. If an agent of the Company and/or any DLJ Trust, or
a dealer or underwriter is involved in the offering of the Offered
Securities, the agent's commission, dealer's purchase price, underwriter's
discount and net proceeds to the Company, as the case may be, will be set
forth in, or may be calculated from, the Prospectus Supplement. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The registration
statement of which this Prospectus forms a part, as well as reports, proxy
statements and other information filed by the Company, may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, New York,
New York 10048; and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549. Such material may also be
accessed electronically by means of the Commission's home page on the
Internet at http://www.sec.gov. The Company's Common Stock is listed on the
New York Stock Exchange, Inc. and reports and other information concerning
the Company can also be inspected at the office of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of the Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933 (the
"Securities Act") with respect to the Offered Securities. This Prospectus
does not contain all of the information set forth in such Registration
Statement, certain parts of which are omitted in accordance with the rules
and regulations of the Commission. Reference is made to such Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company, the DLJ Trusts and the Offered Securities. Any
statements contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed with the
Commission or incorporated by reference herein are not necessarily complete,
and in each instance reference is made to the copy of such document so filed
for a more complete description of the matter involved. Each such statement
is qualified in its entirety by such reference.
No separate financial statements of any of the DLJ Trusts have been
included or incorporated by reference herein. The Company and the DLJ Trusts
do not consider that such financial statements would be material to holders
of the Preferred Securities because (i) all of the voting securities of each
DLJ Trust will be owned, directly or indirectly, by the Company, a reporting
company under the Exchange Act, (ii) each of the DLJ Trusts is a newly-formed
special purpose entity, has no operating history, has no independent
operations and is not engaged in, and does not propose to engage in, any
activity other than issuing Trust Securities (as defined herein) representing
undivided beneficial interests in the assets of such DLJ Trust and investing
the proceeds thereof in Junior Subordinated Debt Securities issued by the
Company and (iii) the obligations of each of the DLJ Trusts under the
Preferred Securities of that DLJ Trust are fully and unconditionally
guaranteed by the Company as and to the extent described herein. See "The DLJ
Trusts," "Description of the Preferred Securities," "Description of the
Preferred Securities Guarantees" and "Description of the Junior Subordinated
Debt Securities." The DLJ Trusts are statutory business trusts formed under
the laws of the State of Delaware. The Company, as of the date of this
Prospectus, beneficially owns all of the beneficial interests in each DLJ
Trust. Each holder of Preferred Securities of a DLJ Trust will be furnished
annually with unaudited financial statements of such Trust as soon as
available after the end of the Trust's fiscal year.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1995, Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996
and June 30, 1996 and Current Reports on Form 8-K dated Febuary 9, 1996 and
February 12, 1996, previously filed by the Company with the Commission, are
incorporated by reference in this Prospectus.
All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the termination of the offering of the Offered Securities offered hereby,
shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statements as modified or superseded
shall be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may
be incorporated by reference in this Prospectus (other than certain exhibits
to such documents). Requests for such documents should be directed to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York
10172, Attention: Corporate Secretary (Telephone: (212) 892-3000).
2
<PAGE>
USE OF PROCEEDS
Each DLJ Trust will use all proceeds received from the sale of its Trust
Securities to purchase Junior Subordinated Debt Securities from the Company.
Unless otherwise set forth in the applicable Prospectus Supplement,
proceeds from the sale of Junior Subordinated Debt Securities will be used by
the Company for general corporate purposes and initially may be temporarily
invested in short-term securities.
RATIOS OF EARNINGS
TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends for the
Company for the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
-------------------------------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
1991 1992 1993 1994 1995 1996
Ratio of earnings to fixed
charges (1) ................. 1.07 1.21 1.20 1.10 1.11 1.20
Ratio of earnings to combined
fixed charges and preferred
stock dividends (2) ......... -- -- -- 1.09 1.10 1.19
</TABLE>
- ------------
(1) For the purpose of calculating the ratio of earnings to fixed charges
(i) earnings consist of income before provision for income taxes and
fixed charges and (ii) fixed charges consist of interest expense and
one-third of rental expense which is deemed representative of an
interest factor.
(2) For the purpose of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends (i) earnings consist of income
before provision for income taxes and fixed charges and (ii) fixed
charges consist of interest expense and one-third of rental expense
which is deemed representative of an interest factor. No preferred
dividends were paid until 1994.
3
<PAGE>
THE COMPANY
The Company is a leading integrated investment and merchant bank that
serves institutional, corporate, governmental and individual clients. The
Company's businesses include securities underwriting, sales and trading;
merchant banking; financial advisory services; investment research;
correspondent brokerage services; and asset management. While results have
fluctuated from year to year, for the years 1991 through 1995, the Company's
total revenues and net income increased by a compound annual growth rate of
22.8% and 32.7%, respectively. The Company's average annual after-tax return
on common equity for the past five years was 23.1%. At June 30, 1996, the
Company had total assets of $47.7 billion and total stockholders' equity of
$1.3 billion.
The Company's principal strategy is to focus its resources on certain core
businesses where management believes the Company can compete profitably and
be among the leading participants in each targeted market. Over the past
several years, the Company has significantly expanded the scope of its
business activities and its customer base, both in the U.S. and
internationally. It has established strong positions in selected high-margin
activities, including equity and high-yield corporate securities underwriting
as well as merchant banking, and has increased its market share in a broad
range of businesses. Key elements of this expansion have been the Company's
recruitment of experienced professionals during periods of turmoil in the
securities industry, the continued development and retention of the Company's
existing personnel at all levels and the continuity of senior management. In
addition, the Company has historically emphasized economic and investment
research in the development of its business and believes that its commitment
to research has been an important contributor to its success.
The Company conducts its business through three principal operating
groups, each of which is an important contributor to revenues and earnings:
the Banking Group, which includes the Company's Investment Banking, Merchant
Banking and Emerging Markets groups; the Capital Markets Group, consisting of
the Company's institutional debt and equity businesses as well as Sprout, its
venture capital affiliate; and the Financial Services Group, comprised of its
Pershing clearing division, high-net-worth retail brokerage and asset
management businesses.
The Company's Banking Group is a major participant in the raising of
capital and the providing of financial advice to companies throughout the
U.S. and has significantly expanded its activities abroad. Through its
Investment Banking group, the Company manages and underwrites public
offerings of securities, arranges private placements and provides advisory
and other services in connection with mergers, acquisitions, restructurings
and other financial transactions. Since 1991, the Investment Banking group
has raised over $190.0 billion for clients from the public and private
markets in corporate equity and debt securities and has completed over 350
merger and acquisition, restructuring and divestiture assignments aggregating
in excess of $89.0 billion. Its Merchant Banking group pursues direct
investments in a variety of areas through a number of investment vehicles
funded with capital provided primarily by institutional investors, the
Company and its employees. Since the Company began investing in leveraged
investments in 1985, it invested over $1.0 billion on behalf of the Company,
its employees and funds it manages over 50 companies with an aggregate
purchase price of over $19.5 billion and achieved an average annual internal
rate of return substantially in excess of comparable industry benchmarks. The
Emerging Markets group specializes in client advisory services, merchant
banking and the underwriting, sales and trading of securities in Latin
America, Asia and certain other international markets.
The Capital Markets Group encompasses a broad range of activities
including trading, research, origination and distribution of equity and
fixed-income securities, private equity investments and venture capital. Its
focus is primarily client-driven, in contrast to that of many other
securities firms which emphasize proprietary trading, an approach that
reduces the Company's exposure to market volatility. Its Taxable Fixed-Income
division provides institutional clients with research, trading and sales
services for a broad range of taxable fixed-income products including
high-yield corporate, investment-grade corporate, U.S. government and
mortgage-backed securities. The Institutional Equities division provides
institutional clients with research, trading and sales services in U.S.
listed and over-the-counter equity securities. The Company's equity sales and
trading capabilities, combined with its research expertise, have contributed
to commission revenues increasing, for the years 1991 through 1995, at a
compound annual
4
<PAGE>
growth rate of 15.6%. In addition, the Company's Equity Derivatives division
provides a broad range of equity and index options products, while Sprout is
one of the oldest and largest groups in the private equity investment and
venture capital industry.
The Financial Services Group provides a broad array of services to
individual investors and the financial intermediaries which represent them.
Pershing is a leading provider of correspondent brokerage services, clearing
transactions for over 600 U.S. brokerage firms which collectively maintain
over 1.3 million client accounts. These client accounts held over $143.6
billion of assets at June 30, 1996. During 1995, Pershing accounted for more
than 10% of the daily reported trading volume on the NYSE. In addition,
Pershing's PC Financial Network (Service Mark), a leading on-line discount
broker in the U.S., has experienced significant growth over the past several
years. The Company's Investment Services Group, which consists of
approximately 270 account executives, provides high-net-worth individuals and
medium to smaller size institutions with access to the Company's equity and
fixed-income research, trading services and underwriting and has one of the
highest revenues per account executive in the industry. Through Wood,
Struthers & Winthrop Management Corp. and affiliates the Company provides
investment management and trust services primarily to high-net-worth
individual investors and institutions, and at June 30, 1996 had over $4.8
billion in assets under management.
Apart from its three principal operating groups, the Company also
maintains a separate brokerage subsidiary, Autranet Management Corp., which
provides institutional investors with research generated by independent
originators that are not affiliated with Wall Street brokerage firms.
Founded in 1959, the Company initially focused on providing in-depth
investment research to institutional investors. In 1970, the Company became
the first member firm of the New York Stock Exchange, Inc. to be owned
publicly. Fifteen years later, the Company was purchased by subsidiaries of
The Equitable Companies Incorporated ("EQ") (EQ and its subsidiaries other
than the Company, collectively, "Equitable"). Equitable, which as of June 30,
1996 owned an approximately 80% interest in the Company following the
Company's initial public offering in October 1995, is a diversified financial
services organization and one of the world's largest investment management
organizations. AXA is EQ's largest stockholder, beneficially owning at June
30, 1996, approximately 60.7% of EQ's outstanding shares of common stock and
$392.2 million stated value of EQ's Series E convertible preferred stock.
The principal executive offices of the Company are located at 277 Park
Avenue, New York, NY, 10172 and its telephone number is (212) 892-3000. The
Company has 17 additional offices in 14 locations in the U.S., and ten
offices in Europe, Asia and Latin America.
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THE DLJ TRUSTS
Each of DLJ Capital Trust I, DLJ Capital Trust II, DLJ Capital Trust III
and DLJ Capital Trust IV is a statutory business trust formed on June 19,
1996 under the Delaware Business Trust Act (the "Business Trust Act")
pursuant to a separate declaration of trust among the Trustees (as defined
herein) of such DLJ Trust and the Company and the filing of a certificate of
trust with the Secretary of State of the State of Delaware. Such declaration
will be amended and restated in its entirety (as so amended and restated, the
"Declaration") substantially in the form filed as an exhibit to the
Registration Statement of which this Prospectus forms a part, as of the date
the Preferred Securities of such DLJ Trust are initially issued. Each
Declaration will be qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
This description summarizes the material terms of the Declarations and is
qualified in its entirety by reference to the form of Declaration, which has
been filed as an exhibit to the Registration Statement of which this
Prospectus is a part, and the Trust Indenture Act.
TRUST SECURITIES
Upon issuance of any Preferred Securities by a DLJ Trust, the holders
thereof will own all of the issued and outstanding Preferred Securities of
such DLJ Trust. The Company will acquire securities representing common
undivided beneficial interests in the assets of each DLJ Trust (the "Common
Securities" and, together with the Preferred Securities, the "Trust
Securities") in an amount equal to at least 3% of the total capital of such
DLJ Trust and will own, directly or indirectly, all of the issued and
outstanding Common Securities of each DLJ Trust. The Preferred Securities and
the Common Securities will rank pari passu with each other and will have
equivalent terms; provided that (i) if a Declaration Event of Default (as
defined herein) under the Declaration of a DLJ Trust occurs and is
continuing, the holders of Preferred Securities of such DLJ Trust will have a
priority over holders of the Common Securities of such DLJ Trust with respect
to payments in respect of distributions and payments upon liquidation,
redemption and maturity and (ii) holders of Common Securities have the
exclusive right (subject to the terms of the Declaration) to appoint, remove
or replace the Trustees and to increase or decrease the number of Trustees.
Each DLJ Trust exists for the purpose of (a) issuing its Preferred
Securities, (b) issuing its Common Securities to the Company, (c) investing
the gross proceeds from the sale of the Trust Securities in Junior
Subordinated Debt Securities of the Company and (d) engaging in only such
other activities as are necessary, convenient or incidental thereto. The
rights of the holders of the Preferred Securities, including economic rights,
rights to information and voting rights, are set forth in the applicable
Declaration, the Business Trust Act and the Trust Indenture Act.
POWERS AND DUTIES OF TRUSTEES
The number of trustees (the "Trustees") of each DLJ Trust shall initially
be five. Three of such Trustees (the "Regular Trustees") are individuals who
are employees or officers of the Company. The fourth such trustee will be The
Bank of New York, which is unaffiliated with the Company and which will serve
as the property trustee (the "Property Trustee") and act as the indenture
trustee for purposes of the Trust Indenture Act. The fifth such trustee is an
affiliate of The Bank of New York that has its principal place of business in
the State of Delaware (the "Delaware Trustee"). Pursuant to each Declaration,
legal title to the Junior Subordinated Debt Securities purchased by a DLJ
Trust will be held by the Property Trustee for the benefit of the holders of
the Trust Securities of such DLJ Trust, and the Property Trustee will have
the power to exercise all rights, powers and privileges under the Indenture
(as defined under "Description of the Junior Subordinated Debt Securities")
with respect to the Junior Subordinated Debt Securities. In addition, the
Property Trustee will maintain exclusive control of a segregated non-interest
bearing bank account (the "Property Account") to hold all payments in respect
of the Junior Subordinated Debt Securities purchased by a DLJ Trust for the
benefit of the holders of Trust Securities. The Property Trustee will
promptly make distributions to the holders of the Trust Securities out of
funds from the Property Account. The Preferred Securities Guarantees are
separately qualified under the Trust Indenture Act and will be held by The
Bank of New York, acting in its capacity as indenture trustee with respect
thereto, for the benefit of the holders of the applicable Preferred
Securities. As used in this Prospectus and any accompanying Prospectus
Supplement, the term "Property Trustee" with respect to a DLJ Trust refers to
The Bank of New York acting either in its capacity as a Trustee under the
relevant Declaration and the holder of legal title to the Junior Subordinated
Debt Securities purchased by that Trust or in its capacity as indenture
trustee under, and the holder of, the applicable Preferred Securities
Guarantee, as the context may require. The Company, as the direct or indirect
owner of all of the Common Securities of each DLJ Trust, will have the
exclusive right (subject to the terms of the related
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Declaration) to appoint, remove or replace Trustees and to increase or
decrease the number of Trustees, provided that the number of Trustees shall
be at least five and the majority of Trustees shall be Regular Trustees. The
term of a DLJ Trust will be set forth in the Prospectus Supplement, but may
terminate earlier as provided in such Declaration.
The duties and obligations of the Trustees of a DLJ Trust shall be
governed by the Declaration of such DLJ Trust. Under its Declaration, each
DLJ Trust shall not, and the Trustees shall cause such DLJ Trust not to,
engage in any activity other than in connection with the purposes of such DLJ
Trust or other than as required or authorized by the related Declaration. In
particular, each DLJ Trust shall not and the Trustees shall not (a) invest
any proceeds received by such DLJ Trust from holding the Junior Subordinated
Debt Securities purchased by such DLJ Trust but shall promptly distribute
from the Property Account all such proceeds to holders of Trust Securities
pursuant to the terms of the related Declaration and of the Trust Securities;
(b) acquire any assets other than as expressly provided in the related
Declaration; (c) possess Trust property for other than a Trust purpose; (d)
make any loans, other than loans represented by the Junior Subordinated Debt
Securities; (e) possess any power or otherwise act in such a way as to vary
the assets of such DLJ Trust or the terms of its Trust Securities in any way
whatsoever; (f) issue any securities or other evidences of beneficial
ownership of, or beneficial interests in, such DLJ Trust other than its Trust
Securities; (g) incur any indebtedness for borrowed money or (h)(i) direct
the time, method and place of exercising any trust or power conferred upon
the Indenture Trustee (as defined under "Description of the Junior
Subordinated Debt Securities") with respect to the Junior Subordinated Debt
Securities deposited in that DLJ Trust as trust assets or upon the Property
Trustee of that DLJ Trust with respect to its Preferred Securities, (ii)
waive any past default that is waivable under the Indenture or the
Declaration, (iii) exercise any right to rescind or annul any declaration
that the principal of all of the Junior Subordinated Debt Securities
deposited in that DLJ Trust as trust assets shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture or
such Junior Subordinated Debt Securities or the Declaration, in each case
where such consent shall be required, unless in the case of this clause (h)
the Property Trustee shall have received an unqualified opinion of nationally
recognized independent tax counsel recognized as expert in such matters to
the effect that such action will not cause such DLJ Trust to be classified
for United States Federal income tax purposes as an association taxable as a
corporation or a partnership and that such DLJ Trust will continue to be
classified as a grantor trust for United States Federal income tax purposes.
BOOKS AND RECORDS
The books and records of each DLJ Trust will be maintained at the
principal office of such DLJ Trust and will be open for inspection by a
holder of Preferred Securities of such DLJ Trust or his representative for
any purpose reasonably related to his interest in such DLJ Trust during
normal business hours. Each holder of Preferred Securities will be furnished
annually with unaudited financial statements of the applicable DLJ Trust as
soon as available after the end of such DLJ Trust's fiscal year.
VOTING
Except as provided under the Business Trust Act, the Declaration and the
Trust Indenture Act, holders of Preferred Securities will have no voting
rights.
THE PROPERTY TRUSTEE
The Property Trustee, for the benefit of the holders of the Trust
Securities of a DLJ Trust, is authorized under each Declaration to exercise
all rights under the Indenture with respect to the Junior Subordinated Debt
Securities deposited in such DLJ Trust as trust assets, including its rights
as the holder of such Junior Subordinated Debt Securities to enforce the
Company's obligations under such Junior Subordinated Debt Securities upon the
occurrence of an Indenture Event of Default. The Property Trustee shall also
be authorized to enforce the rights of holders of Preferred Securities of a
DLJ Trust under the related Preferred Securities Guarantee. If any DLJ
Trust's failure to make distributions on the Preferred Securities of a DLJ
Trust is a consequence of the Company's exercise of any right under the terms
of the Junior Subordinated Debt Securities deposited in such DLJ Trust as
trust assets to extend the
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interest payment period for such Junior Subordinated Debt Securities, the
Property Trustee will have no right to enforce the payment of distributions
on such Preferred Securities until a Declaration Event of Default shall have
occurred. Holders of a least a majority in liquidation amount of the
Preferred Securities held by a DLJ Trust will have the right to direct the
Property Trustee for that DLJ Trust with respect to certain matters under the
Declaration for that DLJ Trust and the related Preferred Securities
Guarantee. If the Property Trustee fails to enforce its rights under the
Indenture or fails to enforce the Preferred Securities Guarantee, to the
extent permitted by applicable law, any holder of Preferred Securities may
institute a legal proceeding against the Company to enforce such rights or
the Preferred Securities Guarantee, as the case may be.
DISTRIBUTIONS
Pursuant to each Declaration, distributions on the Preferred Securities of
a DLJ Trust must be paid on the dates payable to the extent that the Property
Trustee for that DLJ Trust has cash on hand in the applicable Property
Account to permit such payment. The funds available for distribution to the
holders of the Preferred Securities of a DLJ Trust will be limited to
payments received by the Property Trustee in respect of the Junior
Subordinated Debt Securities that are deposited in the DLJ Trust as trust
assets. If the Company does not make interest payments on the Junior
Subordinated Debt Securities deposited in a DLJ Trust as trust assets, the
Property Trustee will not make distributions on the Preferred Securities of
such DLJ Trust. Under the Declaration, if and to the extent the Company does
make interest payments on the Junior Subordinated Debt Securities deposited
in a DLJ Trust as trust assets, the Property Trustee is obligated to make
distributions on the Trust Securities of such DLJ Trust on a Pro Rata Basis
(as defined below). The payment of distributions on the Preferred Securities
of a DLJ Trust is guaranteed by DLJ on a subordinated basis as and to the
extent set forth under "Description of the Preferred Securities Guarantee." A
Preferred Securities Guarantee is a full and unconditional guarantee from the
time of issuance of the applicable Preferred Securities, but the Preferred
Securities Guarantee covers distributions and other payments on the
applicable Preferred Securities only if and to the extent that the Company
has made a payment to the Property Trustee of interest or principal on the
Junior Subordinated Debt Securities deposited in the DLJ Trust as trust
assets. As used in this Prospectus, the term "Pro Rata Basis" shall mean pro
rata to each holder of Trust Securities of a DLJ Trust according to the
aggregate liquidation amount of the Trust Securities of such DLJ Trust held
by the relevant holder in relation to the aggregate liquidation amount of all
Trust Securities of such DLJ Trust outstanding unless, in relation to a
payment, a Declaration Event of Default under the Declaration has occurred
and is continuing, in which case any funds available to make such payment
shall be paid first to each holder of the Preferred Securities of such DLJ
Trust pro rata according to the aggregate liquidation amount of the Preferred
Securities held by the relevant holder in relation to the aggregate
liquidation amount of all the Preferred Securities of such DLJ Trust
outstanding, and only after satisfaction of all amounts owed to the holders
of such Preferred Securities, to each holder of Common Securities of such DLJ
Trust pro rata according to the aggregate liquidation amount of such Common
Securities held by the relevant holder in relation to the aggregate
liquidation amount of all Common Securities of such DLJ Trust outstanding.
EVENTS OF DEFAULT
If an Indenture Event of Default occurs and is continuing with respect to
Junior Subordinated Debt Securities deposited in a DLJ Trust as trust assets,
an Event of Default under the Declaration (a "Declaration Event of Default")
of such DLJ Trust will occur and be continuing with respect to any
outstanding Trust Securities of such DLJ Trust. In such event, each
Declaration provides that the holders of Common Securities of such DLJ Trust
will be deemed to have waived any such Declaration Event of Default with
respect to the Common Securities until all Declaration Events of Default with
respect to the Preferred Securities of such DLJ Trust have been cured or
waived. Until all such Declaration Events of Default with respect to the
Preferred Securities of such DLJ Trust have been so cured or waived, the
Property Trustee will be deemed to be acting solely on behalf of the holders
of the Preferred Securities of such DLJ Trust and only the holders of such
Preferred Securities will have the right to direct the Property Trustee with
respect to certain matters under such Declaration and consequently under the
Indenture. In the event that any Declaration Event of Default with respect to
the Preferred Securities of
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such DLJ Trust is waived by the holders of the Preferred Securities of such
DLJ Trust as provided in the Declaration, the holders of Common Securities
pursuant to such Declaration have agreed that such waiver also constitutes a
waiver of such Declaration Event of Default with respect to the Common
Securities for all purposes under the Declaration without any further act,
vote or consent of the holders of the Common Securities.
RECORD HOLDERS
Each Declaration provides that the Trustees of such DLJ Trust may treat
the person in whose name a Certificate representing its Preferred Securities
is registered on the books and records of such DLJ Trust as the sole holder
thereof and of the Preferred Securities represented thereby for purposes of
receiving distributions and for all other purposes and, accordingly, shall
not be bound to recognize any equitable or other claim to or interest in such
certificate or in the Preferred Securities represented thereby on the part of
any person, whether or not such DLJ Trust shall have actual or other notice
thereof. Preferred Securities will be issued in fully registered form. Unless
otherwise specified in a Prospectus Supplement, Preferred Securities will be
represented by a global certificate registered on the books and records of
such DLJ Trust in the name of a depositary (the "Depositary") named in an
accompanying Prospectus Supplement or its nominee. Under each Declaration:
(i) such DLJ Trust and the Trustees thereof shall be entitled to deal
with the Depositary (or any successor depositary) for all purposes,
including the payment of distributions and receiving approvals, votes or
consents under the related Declaration, and except as set forth in the
related Declaration with respect to the Property Trustee, shall have no
obligation to persons owning a beneficial interest in Preferred Securities
("Preferred Security Beneficial Owners") registered in the name of and
held by the Depositary or its nominee; and
(ii) the rights of Preferred Security Beneficial Owners shall be
exercised only through the Depositary (or any successor depositary) and
shall be limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Depositary and/or its
participants. With respect to Preferred Securities registered in the name
of and held by the Depositary or its nominee, all notices and other
communications required under each Declaration shall be given to, and all
distributions on such Preferred Securities shall be given or made to, the
Depositary (or its successor).
The specific terms of the depositary arrangement with respect to the
Preferred Securities will be disclosed in the applicable Prospectus
Supplement.
DEBTS AND OBLIGATIONS
In each Declaration, the Company has agreed to pay for all debts and
obligations (other than with respect to the Trust Securities) and all costs
and expenses of the applicable DLJ Trust, including the fees and expenses of
its Trustees and any taxes and all costs and expenses with respect thereto,
to which such DLJ Trust may become subject, except for United States
withholding taxes. The foregoing obligations of the Company under each
Declaration are for the benefit of, and shall be enforceable by, any person
to whom any such debts, obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not such Creditor has received notice thereof. Any
such Creditor may enforce such obligations of the Company directly against
the Company and the Company has irrevocably waived any right or remedy to
require that any such Creditor take any action against any DLJ Trust or any
other person before proceeding against the Company. The Company has agreed in
each Declaration to execute such additional agreements as may be necessary or
desirable in order to give full effect to the foregoing.
The business address of each DLJ Trust is c/o Donaldson, Lufkin &
Jenrette, Inc., 277 Park Avenue, New York, NY 10172, telephone number (212)
892-3000.
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DESCRIPTION OF THE PREFERRED SECURITIES
Each DLJ Trust may issue, from time to time, only one series of Preferred
Securities having terms described in the Prospectus Supplement relating
thereto. The Declaration of each DLJ Trust authorizes the Regular Trustees of
such DLJ Trust to issue on behalf of such DLJ Trust one series of Preferred
Securities. Each Declaration will be qualified as an indenture under the
Trust Indenture Act. The Preferred Securities will have such terms, including
distributions, redemption, voting, liquidation rights and such other
preferred, deferred or other special rights or such restrictions as shall be
set forth in the related Declaration or made part of such Declaration by the
Trust Indenture Act. Reference is made to the Prospectus Supplement relating
to the Preferred Securities of a DLJ Trust for specific terms, including (i)
the specific designation of such Preferred Securities, (ii) the number of
Preferred Securities issued by such DLJ Trust, (iii) the annual distribution
rate (or method of calculation thereof) for Preferred Securities issued by
such DLJ Trust, the date or dates upon which such distributions shall be
payable and the record date or dates for the payment of such distributions,
(iv) whether distributions on Preferred Securities issued by such DLJ Trust
shall be cumulative, and, in the case of Preferred Securities having such
cumulative distribution rights, the date or dates or method of determining
the date or dates from which distributions on Preferred Securities issued by
such DLJ Trust shall be cumulative, (v) the amount or amounts which shall be
paid out of the assets of such DLJ Trust to the holders of Preferred
Securities of such DLJ Trust upon voluntary or involuntary dissolution,
winding-up or termination of such DLJ Trust, (vi) the obligation or right, if
any, of such DLJ Trust to purchase or redeem Preferred Securities issued by
such DLJ Trust and the price or prices at which, the period or periods within
which and the terms and conditions upon which Preferred Securities issued by
such DLJ Trust shall or may be purchased or redeemed, in whole or in part,
pursuant to such obligation or right, (vii) the voting rights, if any, of
Preferred Securities issued by such DLJ Trust in addition to those required
by law, including the number of votes per Preferred Security and any
requirement for the approval by the holders of Preferred Securities, or of
Preferred Securities issued by one or more DLJ Trusts, or of both, as a
condition to specified actions or amendments to the Declaration of such DLJ
Trust, (viii) terms for any conversion or exchange into other securities and
(ix) any other relevant rights, preferences, privileges, limitations or
restrictions of Preferred Securities issued by such DLJ Trust consistent with
the Declaration of such DLJ Trust or with applicable law. All Preferred
Securities offered hereby will be guaranteed by the Company as and to the
extent set forth below under "Description of the Preferred Securities
Guarantees." Certain United States Federal income tax considerations
applicable to any offering of Preferred Securities will be described in the
Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, each DLJ Trust
will issue one series of Common Securities. The Declaration of each DLJ Trust
authorizes the Regular Trustees of such trust to issue on behalf of such DLJ
Trust one series of Common Securities having such terms including
distributions, redemption, voting, liquidation rights or such restrictions as
shall be set forth therein. The terms of the Common Securities issued by a
DLJ Trust will be substantially identical to the terms of the Preferred
Securities issued by such DLJ Trust and the Common Securities will rank pari
passu, and payments will be made thereon on a Pro Rata Basis with the
Preferred Securities except that if a Declaration Event of Default occurs and
is continuing, the rights of the holders of such Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
maturity will be subordinated to the rights of the holders of such Preferred
Securities. Except in certain limited circumstances, the Common Securities
issued by a DLJ Trust will also carry the right to vote and to appoint,
remove or replace any of the Trustees of that DLJ Trust. All of the Common
Securities of a DLJ Trust will be directly or indirectly owned by the
Company.
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DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantees that will be executed and delivered by the Company for
the benefit of the holders from time to time of Preferred Securities. Each
Preferred Security Guarantee will be separately qualified under the Trust
Indenture Act and will be held by The Bank of New York, acting in its
capacity as indenture trustee with respect thereto, for the benefit of
holders of the Preferred Securities of the applicable DLJ Trust. The terms of
each Preferred Securities Guarantee will be those set forth in such Preferred
Securities Guarantee and those made part of such Guarantee by the Trust
Indenture Act. This description summarizes the material terms of the
Preferred Securities Guarantees and is qualified in its entirety by reference
to the form of Preferred Securities Guarantee, which is filed as an exhibit
to the Registration Statement of which this Prospectus forms a part, and the
Trust Indenture Act. Section and Article references used herein are
references to the provisions of the form of Preferred Securities Guarantee.
GENERAL
Pursuant to each Preferred Securities Guarantee, the Company will
irrevocably and unconditionally agree, to the extent set forth therein, to
pay in full, to the holders of the Preferred Securities issued by a DLJ
Trust, the Guarantee Payments (as defined herein) (without duplication of
amounts theretofore paid by such DLJ Trust), to the extent not paid by such
DLJ Trust, regardless of any defense, right of set-off or counterclaim that
such DLJ Trust may have or assert. The following payments or distributions
with respect to Preferred Securities issued by a DLJ Trust to the extent not
paid or made by such DLJ Trust (the "Guarantee Payments"), will be subject to
the Preferred Securities Guarantee (without duplication): (i) any accrued and
unpaid distributions on such Preferred Securities, and the redemption price,
including all accrued and unpaid distributions to the date of redemption,
with respect to any Preferred Securities called for redemption by such DLJ
Trust but if and only to the extent that in each case the Company has made a
payment to the related Property Trustee of interest or principal on the
Junior Subordinated Debt Securities deposited in such DLJ Trust as trust
assets and (ii) upon a voluntary or involuntary dissolution, winding-up or
termination of such DLJ Trust (other than in connection with the distribution
of such Junior Subordinated Debt Securities to the holders of Preferred
Securities or the redemption of all of the Preferred Securities upon the
maturity or redemption of such Junior Subordinated Debt Securities) the
lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid distributions on such Preferred Securities to the date of payment, to
the extent such DLJ Trust has funds available therefor or (b) the amount of
assets of such DLJ Trust remaining available for distribution to holders of
such Preferred Securities in liquidation of such DLJ Trust. The Company's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Company to the holders of Preferred Securities or
by causing the applicable DLJ Trust to pay such amounts to such holders.
The Preferred Securities Guarantee is a full and unconditional guarantee
from the time of issuance of the applicable Preferred Securities, but the
Preferred Securities Guarantee covers distributions and other payments on
such Preferred Securities only if and to the extent that the Company has made
a payment to the Property Trustee of interest or principal on the Junior
Subordinated Debt Securities deposited in the applicable DLJ Trust as trust
assets. If the Company does not make interest or principal payments on the
Junior Subordinated Debt Securities deposited in the applicable DLJ Trust as
trust assets, the Property Trust will not make distributions of the Preferred
Securities of such DLJ Trust and the DLJ Trust will not have funds available
therefor.
The Company's obligations under the Declaration for each Trust, the
Preferred Securities Guarantee issued with respect to Preferred Securities
issued by that Trust, the Junior Subordinated Debt Securities purchased by
that Trust and the related Indenture (as defined below) in the aggregate will
provide a full and unconditional guarantee on a subordinated basis by the
Company of payments due on the Preferred Securities issued by that Trust.
CERTAIN COVENANTS OF THE COMPANY
In each Preferred Securities Guarantee, the Company will covenant that, so
long as any Preferred Securities issued by the applicable DLJ Trust remain
outstanding, the Company will not (A) declare or
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pay any dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock or make any guarantee payment with respect thereto, if at such time (i)
the Company shall be in default with respect to its Guarantee Payments or
other payment obligations under the Preferred Securities Guarantee, (ii)
there shall have occurred any Declaration Event of Default under the related
Declaration or (iii) in the event that Junior Subordinated Debt Securities
are issued to a DLJ Trust in connection with the issuance of Trust Securities
by such DLJ Trust, the Company shall have given notice of its election to
defer payments of interest on such Junior Subordinated Debt Securities by
extending the interest payment period as provided in the terms of the Junior
Subordinated Debt Securities and such period, or any extension thereof, is
continuing; provided that (a) the Company will be permitted to pay accrued
dividends (and cash in lieu of fractional shares) upon the conversion of
Preferred Stock of the Company as may be outstanding from time to time, in
each case in accordance with the terms of such stock and (b) the foregoing
will not apply to any stock dividends paid by the Company. In addition, so
long as any Preferred Securities remain outstanding, the Company has agreed
(i) to remain the sole direct or indirect owner of all of the outstanding
Common Securities issued by the applicable DLJ Trust and shall not cause or
permit the Common Securities to be transferred except to the extent permitted
by the related Declaration; provided that any permitted successor of the
Company under the Indenture may succeed to the Company's ownership of the
Common Securities issued by the applicable DLJ Trust and (ii) to use
reasonable efforts to cause such DLJ Trust to continue to be treated as a
grantor trust for United States Federal income tax purposes except in
connection with a distribution of Junior Subordinated Debt Securities.
(Section 6.1)
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities (in which case no consent will be
required), each Preferred Securities Guarantee may be amended only with the
prior approval of the holders of not less than 66 2/3% in liquidation amount
of the outstanding Preferred Securities issued by the applicable DLJ Trust.
The manner of obtaining any such approval of holders of such Preferred
Securities will be set forth in an accompanying Prospectus Supplement.
(Section 9.2) All guarantees and agreements contained in a Preferred
Securities Guarantee shall bind the successors, assignees, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the holders of the Preferred Securities of the applicable DLJ Trust then
outstanding. Except in connection with a consolidation, merger or sale
involving the Company that is permitted under the Indenture, the Company may
not assign its obligations under any Preferred Securities Guarantee. (Section
9.1)
TERMINATION OF THE PREFERRED SECURITIES GUARANTEES
Each Preferred Securities Guarantee will terminate and be of no further
force and effect as to the Preferred Securities issued by the applicable DLJ
Trust upon full payment of the redemption price of all Preferred Securities
of such DLJ Trust, or upon distribution of the Junior Subordinated Debt
Securities to the holders of the Preferred Securities of such DLJ Trust in
exchange for all of the Preferred Securities issued by such DLJ Trust, or
upon full payment of the amounts payable upon liquidation of such DLJ Trust.
Notwithstanding the foregoing, each Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of Preferred Securities issued by the applicable DLJ Trust
must restore payment of any sums paid under such Preferred Securities or such
Guarantee. (Section 7.1)
STATUS OF THE PREFERRED SECURITIES GUARANTEES
The Company's obligations under each Preferred Securities Guarantee to
make the Guarantee Payments will constitute an unsecured obligation of the
Company and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Company, including the Junior Subordinated Debt
Securities, except those made pari passu or subordinate by their terms, and
(ii) senior to all capital stock now or hereafter issued by the Company and
to any guarantee now or hereafter entered into by the Company in respect of
any of its capital stock. The Company's obligations under each Preferred
Securities
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Guarantee will rank pari passu with each other Preferred Securities
Guarantee. (Section 6.2) Because the Company is a holding company, the
Company's obligations under each Preferred Securities Guarantee are also
effectively subordinated to all existing and future liabilities, including
trade payables, of the Company's subsidiaries, except to the extent that the
Company is a creditor of the subsidiaries recognized as such. Each
Declaration provides that each holder of Preferred Securities issued by the
applicable DLJ Trust by acceptance thereof agrees to the subordination
provisions and other terms of the related Preferred Securities Guarantee.
Each Preferred Securities Guarantee will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
guarantee without first instituting a legal proceeding against any other
person or entity). Each Preferred Securities Guarantee will be deposited with
The Bank of New York, as indenture trustee, to be held for the benefit of the
holders of the Preferred Securities issued by the applicable DLJ Trust. The
Bank of New York shall enforce the Preferred Securities Guarantee on behalf
of the holders of the Preferred Securities issued by the applicable DLJ
Trust. The holders of not less than a majority in aggregate liquidation
amount of the Preferred Securities issued by the applicable DLJ Trust have
the right to direct the time, method and place of conducting any proceeding
for any remedy available in respect of the related Preferred Securities
Guarantee, including the giving of directions to The Bank of New York. If The
Bank of New York fails to enforce such Preferred Securities Guarantee as
above provided, any holder of Preferred Securities issued by the applicable
DLJ Trust may institute a legal proceeding directly against the Company to
enforce its rights under such Preferred Securities Guarantee, without first
instituting a legal proceeding against the applicable DLJ Trust or any other
person or entity.
MISCELLANEOUS
The Company will be required to provide annually to The Bank of New York a
statement as to the performance by the Company of certain of its obligations
under the Preferred Securities Guarantees and as to any default in such
performance. The Company is required to file annually with The Bank of New
York an officer's certificate as to the Company's compliance with all
conditions under Preferred Securities Guarantees. (Section 2.4)
The Bank of New York, prior to the occurrence of a default, undertakes to
perform only such duties as are specifically set forth in the applicable
Preferred Securities Guarantee and, after default with respect to a Preferred
Securities Guarantee, shall exercise the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs. Subject
to such provision, The Bank of New York is under no obligation to exercise
any of the powers vested in it by a Preferred Securities Guarantee at the
request of any holder of Preferred Securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred
thereby. (Section 3.2)
GOVERNING LAW
The Guarantees will be governed by, and construed in accordance with, the
laws of the State of New York.
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
Junior Subordinated Debt Securities may be issued from time to time in one
or more series under an Indenture (the "Indenture") between the Company and
The Bank of New York, as trustee (the "Indenture Trustee"). The Indenture has
been filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. The following description summarizes the material
terms of the Indenture, and is qualified in its entirety by reference to the
Indenture and the Trust Indenture Act. Whenever particular provisions or
defined terms in the Indenture are referred to herein, such provisions or
defined terms are incorporated by reference herein. Section and Article
references used herein are references to provisions of the Indenture.
GENERAL
The Junior Subordinated Debt Securities will be unsecured, junior
subordinated obligations of the Company. The Indenture does not limit the
amount of additional indebtedness the Company or any of its subsidiaries may
incur. Since the Company is a holding company, the Company's rights and the
rights of its creditors, including the holders of Junior Subordinated Debt
Securities, to participate in the assets of any subsidiary upon the latter's
liquidation or recapitalization will be subject to the prior claims of the
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against the subsidiary.
The Indenture does not limit the aggregate principal amount of
indebtedness which may be issued thereunder and provides that Junior
Subordinated Debt Securities may be issued thereunder from time to time in
one or more series. The Junior Subordinated Debt Securities are issuable in
one or more series pursuant to an indenture supplemental to the Indenture.
In the event Junior Subordinated Debt Securities are issued to a DLJ Trust
or a Trustee of such trust in connection with the issuance of Trust
Securities by such DLJ Trust, such Junior Subordinated Debt Securities
subsequently may be distributed pro rata to the holders of such Trust
Securities in connection with the dissolution of such DLJ Trust upon the
occurrence of certain events described in the Prospectus Supplement relating
to such Trust Securities. Only one series of Junior Subordinated Debt
Securities will be issued to a DLJ Trust or a trustee of such trust in
connection with the issuance of Trust Securities by such DLJ Trust.
Reference is made to the Prospectus Supplement which will accompany this
Prospectus for the following terms of the series of Junior Subordinated Debt
Securities being offered thereby (to the extent such terms are applicable to
the Junior Subordinated Debt Securities): (i) the specific designation of
such Junior Subordinated Debt Securities, aggregate principal amount and
purchase price; (ii) any limit on the aggregate principal amount of such
Junior Subordinated Debt Securities; (iii) the date or dates on which the
principal of such Junior Subordinated Debt Securities is payable and the
right, if any, to extend such date or dates; (iv) the rate or rates at which
such Junior Subordinated Debt Securities will bear interest or the method of
calculating such rate or rates, if any; (v) the date or dates from which such
interest shall accrue, the interest payment dates on which such interest will
be payable or the manner of determination of such interest payment dates and
the record dates for the determination of holders to whom interest is payable
on any such interest payment dates; (vi) the right, if any, to extend the
interest payment periods and the duration of such extension; (vii) the period
or periods within which, the price or prices at which, and the terms and
conditions upon which, such Junior Subordinated Debt Securities may be
redeemed, in whole or in part, at the option of the Company; (viii) the
obligation, if any of the Company to redeem or purchase such Junior
Subordinated Debt Securities pursuant to any sinking fund or analogous
provisions or at the option of the holder thereof and the period or periods
for which, the price or prices at which, and the terms and conditions upon
which, such Junior Subordinated Debt Securities shall be redeemed or
purchased, in whole or part, pursuant to such obligation; (ix) any applicable
United States Federal income tax consequences, including whether and under
what circumstances the Company will pay additional amounts on the Junior
Subordinated Debt Securities held by a person who is not a U.S. person in
respect of any tax, assessment or governmental charge withheld or deducted
and, if so, whether the Company will have the option to redeem such Junior
Subordinated Debt Securities rather than pay such additional amounts; (x) the
form of such Junior Subordinated Debt Securities; (xi) if other than
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<PAGE>
denominations of $25 or any integral multiple thereof, the denominations in
which such Junior Subordinated Debt Securities shall be issuable; (xii) any
and all other terms with respect to such series, including any modification
of or additions to the events of default or covenants provided for with
respect to the Junior Subordinated Debt Securities, and any terms which may
be required by or advisable under applicable laws or regulations not
inconsistent with the Indenture; and (xiii) whether such Junior Subordinated
Debt Securities are issuable as a global security, and in such case, the
identity of the depositary. (Section 2.01)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Junior Subordinated Debentures will be issued in United States dollars in
fully registered form without coupons in denominations of $25 or integral
multiples thereof. Junior Subordinated Debt Securities may be presented for
exchange and Junior Subordinated Debt Securities in registered form may be
presented for transfer in the manner, at the places and subject to the
restrictions set forth in the Junior Subordinated Debt Securities and the
Prospectus Supplement. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith,
but subject to the limitations provided in the Indenture. Junior Subordinated
Debt Securities in bearer form and the coupons, if any, appertaining thereto
will be transferable by delivery.
Junior Subordinated Debt Securities may bear interest at a fixed rate or a
floating rate. Junior Subordinated Debt Securities bearing no interest or
interest at a rate that at the time of issuance is below the prevailing
market rate will be sold at a discount below their stated principal amount.
Special United States Federal income tax considerations applicable to any
such discounted Junior Subordinated Debt Securities or to certain Junior
Subordinated Debt Securities issued at par which are treated as having been
issued at a discount for United States Federal income tax purposes will be
described in the relevant Prospectus Supplement.
CERTAIN COVENANTS OF THE COMPANY APPLICABLE TO THE JUNIOR SUBORDINATED DEBT
SECURITIES
If Junior Subordinated Debt Securities are issued to a DLJ Trust in
connection with the issuance of Trust Securities by such DLJ Trust, the
Company will covenant in the Indenture that, so long as the Preferred
Securities issued by the applicable DLJ Trust remain outstanding, the Company
will not declare or pay any dividends on, or redeem, purchase, acquire or
make a distribution or liquidation payment with respect to, any of its common
stock or preferred stock or make any guarantee payment with respect thereto
if at such time (i) the Company shall be in default with respect to its
Guarantee Payments or other payment obligations under the related Preferred
Securities Guarantee, (ii) there shall have occurred any Indenture Event of
Default with respect to the Junior Subordinated Debt Securities or (iii) in
the event that Junior Subordinated Debt Securities are issued to a DLJ Trust
in connection with the issuance of Trust Securities by such DLJ Trust, the
Company shall have given notice of its election to defer payments of interest
on such Junior Subordinated Debt Securities by extending the interest payment
period as provided in the terms of such Junior Subordinated Debt Securities
and such period, or any extension thereof, is continuing; provided that (x)
the Company will be permitted to pay accrued dividends (and cash in lieu of
fractional shares) upon the conversion of any Preferred Stock of the Company
as may be outstanding from time to time, in each case in accordance with the
terms of such stock and (y) the foregoing will not apply to any stock
dividends paid by the Company. In addition, if Junior Subordinated Debt
Securities are issued to a DLJ Trust in connection with the issuance of Trust
Securities by such DLJ Trust, for so long as the Preferred Securities issued
by the applicable DLJ Trust remain outstanding, the Company has agreed (i) to
remain the sole direct or indirect owner of all of the outstanding Common
Securities issued by the applicable DLJ Trust and not to cause or permit the
Common Securities to be transferred except to the extent permitted by the
related Declaration; provided that any permitted successor of the Company
under the Indenture may succeed to the Company's ownership of the Common
Securities issued by the applicable DLJ Trust, (ii) to comply fully with all
of its obligations and agreements contained in the related Declaration and
(iii) not to take any action which would cause the applicable DLJ Trust to
cease to be treated as a grantor trust for United States Federal income tax
purposes, except in connection with a distribution of Junior Subordinated
Debt Securities.
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SUBORDINATION
The Indenture provides that the Junior Subordinated Debt Securities are
subordinate and junior in right of payment to all Senior Indebtedness of the
Company. In the event (a) of any insolvency or bankruptcy proceedings, any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or its property or any proceeding for voluntary
liquidation, dissolution or other winding up of the Company or any execution
sale, or (b) that Junior Subordinated Debt Securities of any series are
declared due and payable before their expressed maturity because of the
occurrence of an Indenture Event of Default pursuant to Section 6.01 of the
Indenture (under circumstances other than as set forth in clause (a) above),
then the holders of all Senior Indebtedness shall first be entitled to
receive payment of the full amount due thereon in money, before the holders
of any of the Junior Subordinated Debt Securities are entitled to receive
payment on account of the principal of, or interest, on the indebtedness
evidenced by such Junior Subordinated Debt Securities. In the event and
during the continuation of any default in payment of any Senior Indebtedness
or if any event of default shall exist under any Senior Indebtedness, as
"event of default" is defined therein or in the agreement under which the
same is outstanding, no payment of the principal, or premium, if any, or
interest, on the Junior Subordinated Debt Securities shall be made. (Section
14.02) If this Prospectus is being delivered in connection with a series of
Junior Subordinated Debt Securities, the accompanying Prospectus Supplement
will set forth the approximate amount of Senior Indebtedness outstanding as
of the end of the most recent fiscal quarter.
The term "Senior Indebtedness" shall mean the principal of and premium, if
any, and interest on (a) all indebtedness of the Company, whether outstanding
on the date of the Indenture or thereafter created, (i) for money borrowed by
the Company (including, without limitation, indebtedness issued or to be
issued pursuant to the Indenture between DLJ and The Bank of New York as
Trustee providing for the issuance of subordinated debt securities by the
Company), (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company, (iii) in
respect of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company for the payment of
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and supplements
to, any such indebtedness. As used in the preceding sentence the term
"purchase money indebtedness" means indebtedness evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or
other security interest) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, unless by its terms such indebtedness is
subordinate to other indebtedness of the Company. Notwithstanding anything to
the contrary in the Indenture or the Junior Subordinated Debt Securities,
Senior Indebtedness shall not include (i) any indebtedness of the Company
which, by its terms or the terms of the instrument creating or evidencing it,
is subordinate in right of payment to or pari passu with the Junior
Subordinated Debt Securities, as the case may be, and in particular, the
Junior Subordinated Debt Securities shall rank pari passu with respect to all
other debt securities and guarantees in respect thereof issued to any other
trusts, partnerships or other entity affiliated with the Company which is a
financing vehicle of the Company in connection with the issuance of preferred
securities by such financing vehicle, or (ii) any indebtedness of the Company
to a subsidiary of the Company. (Section 1.01) The Subordinated Indenture
does not contain any limitation on the amount of Senior Indebtedness that can
be incurred by the Company.
INDENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events, which has occurred and is continuing, constitutes an "Indenture Event
of Default" with respect to each series of Junior Subordinated Debt
Securities:
(a) failure for 30 days to pay interest on the Junior Subordinated Debt
Securities of such series when due; provided that a valid extension of the
interest payment period by the Company shall not constitute a default in
the payment of interest for this purpose;
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(b) failure to pay principal of or premium, if any, on the Junior
Subordinated Debt Securities of such series when due whether at maturity,
upon redemption, by declaration or otherwise;
(c) failure to observe or perform any other covenant contained in the
Indenture with respect to such series for 90 days after written notice to
the Company from the Indenture Trustee or the holders of at least 25% in
principal amount of the outstanding Junior Subordinated Debt Securities of
such series; or
(d) certain events in bankruptcy, insolvency or reorganization of the
Company.
In each and every such case, unless the principal of all the Junior
Subordinated Debt Securities of that series shall have already become due and
payable, either the Indenture Trustee or the holders of not less than 25% in
aggregate principal amount of the Junior Subordinated Debt Securities of that
series then outstanding, by notice in writing to the Company (and to the
Indenture Trustee if given by such holders), may declare the principal of all
the Junior Subordinated Debt Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable. (Section 6.01)
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities of that series have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee. (Section 6.06) The Indenture Trustee or
the holders of not less than 25% in aggregate outstanding principal amount of
the Junior Subordinated Debt Securities of that series may declare the
principal due and payable immediately upon an Indenture Event of Default with
respect to such series, but the holders of a majority in aggregate
outstanding principal amount of Junior Subordinated Debt Securities of such
series may annul such declaration and waive the default if the default has
been cured and a sum sufficient to pay all matured installments of interest
and principal otherwise than by acceleration and any premium has been
deposited with the Indenture Trustee. (Sections 6.01 and 6.06)
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities of that series may, on behalf of the
holders of all the Junior Subordinated Debt Securities of that series, waive
any past default, except a default in the payment of principal, premium, if
any, or interest (unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal otherwise than by
acceleration and any premium has been deposited with the Indenture Trustee)
or a call for redemption of Junior Subordinated Debt Securities. (Section
6.06) The Company is required to file annually with the Indenture Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants under the Indenture. (Section 5.03)
If Junior Subordinated Debt Securities are issued to a DLJ Trust in
connection with the issuance of Trust Securities of such DLJ Trust, then
under the applicable Declaration an Indenture Event of Default with respect
to such series of Junior Subordinated Debt Securities will constitute a
Declaration Event of Default.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Indenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of the outstanding Junior Subordinated Debt Securities of
each series affected, to modify the Indenture or any supplemental indenture
affecting the rights of the holders of such Junior Subordinated Debt
Securities; provided that no such modification may, without the consent of
the holder of each outstanding Junior Subordinated Debt Security affected
thereby, (i) extend the fixed maturity of any Junior Subordinated Debt
Securities of any series, reduce the principal amount thereof, reduce the
rate or extend the time of payment of interest thereon, reduce any premium
payable upon the redemption thereof, without the consent of the holder of
each Junior Subordinated Debt Security so affected or (ii) reduce the
percentage of Junior Subordinated Debt Securities, the holders of which are
required to consent to any such modification, without the consent of the
holders of each Junior Subordinated Debt Security then outstanding and
affected thereby. (Section 9.02)
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BOOK-ENTRY AND SETTLEMENT
If any Junior Subordinated Debt Securities of a series are represented by
one or more global securities (each, a "Global Security"), the applicable
Prospectus Supplement will describe the circumstances, if any, under which
beneficial owners of interests in any such Global Security may exchange such
interests for Junior Subordinated Debt Securities of such series and of like
tenor and principal amount in any authorized form and denomination. Principal
of and any premium and interest on a Global Security will be payable in the
manner described in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Junior Subordinated Debt Securities to be represented
by a Global Security will be described in the applicable Prospectus
Supplement.
CONSOLIDATION, MERGER AND SALE
The Indenture will provide that the Company may not consolidate with or
merge into any other person or transfer or lease its properties and assets
substantially as an entirety to any person and may not permit any person to
merge into or consolidate with the Company unless (i) either the Company will
be the resulting or surviving entity or any successor or purchaser is a
corporation organized under the laws of the United States of America, any
State or the District of Columbia, and any such successor or purchaser
expressly assumes the Company's obligations under the Indenture and (ii)
immediately after giving effect to the transaction no Event of Default shall
have occurred and be continuing. (Section 10.01)
DEFEASANCE AND DISCHARGE
Under the terms of the Indenture, the Company will be discharged from any
and all obligations in respect of the Junior Subordinated Debt Securities of
a series (except in each case for certain obligations to register the
transfer or exchange of such Junior Subordinated Debt Securities, replace
stolen, lost or mutilated Junior Subordinated Debt Securities of that series,
maintain paying agencies and hold moneys for payment in trust) if (i) the
Company irrevocably deposits with the Indenture Trustee cash or U.S.
Government Obligations, as trust funds in an amount certified to be
sufficient to pay at maturity (or upon redemption) the principal of, premium,
if any, and interest on all outstanding Junior Subordinated Debt Securities
of such series; (ii) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument to which the
Company is a party or by which it is bound; (iii) the Company delivers to the
Indenture Trustee an opinion of counsel to the effect that the holders of the
Junior Subordinated Debt Securities of such series will not recognize income,
gain or loss for United States Federal income tax purposes as a result of
such defeasance and that defeasance will not otherwise alter holders' United
States Federal income tax treatment of principal, premium and interest
payments on such Junior Subordinated Debt Securities of such series (such
opinion must be based on a ruling of the Internal Revenue Service or a change
in United States Federal income tax law occurring after the date of such
Indenture, since such a result would not occur under current tax law); (iv)
the Company has delivered to the Indenture Trustee an Officer's Certificate
and an opinion of counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by such provision have
been complied with; and (v) no event or condition shall exist that, pursuant
to the subordination provisions applicable to such series, would prevent the
Company from making payments of principal of, premium, if any, and interest
on the Junior Subordinated Debt Securities of such series at the date of the
irrevocable deposit referred to above. (Section 11.01)
GOVERNING LAW
The Indenture and the Junior Subordinated Debt Securities will be governed
by the laws of the State of New York. (Section 13.05)
INFORMATION CONCERNING THE INDENTURE TRUSTEE
The Indenture Trustee, prior to default, undertakes to perform only such
duties as are specifically set forth in the Indenture and, after default,
shall exercise the same degree of care as a prudent individual
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would exercise in the conduct of his or her own affairs. (Section 7.01)
Subject to such provision, the Indenture Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the request of
any holder of Junior Subordinated Debt Securities, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities that
might be incurred thereby. (Section 7.02) The Indenture Trustee is not
required to expend or risk its own funds or otherwise incur personal
financial liability in the performance of its duties if the Trustee
reasonably believes that repayment or adequate indemnity is not reasonably
assured to it. (Section 7.01)
The Company and its subsidiaries maintain ordinary banking and trust
relationships with The Bank of New York and its affiliates.
MISCELLANEOUS
The Company will have the right at all times to assign any of its rights
or obligations under the Indenture to a direct or indirect wholly-owned
subsidiary of the Company; provided that, in the event of any such
assignment, the Company will remain jointly and severally liable for all such
obligations. Subject to the foregoing, the Indenture will be binding upon and
inure to the benefit of the parties thereto and their respective successors
and assigns. The Indenture provides that it may not otherwise be assigned by
the parties thereto other than by the Company to a successor or purchaser
pursuant to a consolidation, merger or sale permitted by the Indenture.
(Section 13.11)
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PLAN OF DISTRIBUTION
The Company may sell any series of Junior Subordinated Debt Securities and
the DLJ Trusts may sell the Preferred Securities being offered hereby
directly or through agents, underwriters or dealers.
Offers to purchase Offered Securities may be solicited by agents
designated by the Company from time to time. Any such agent involved in the
offer or sale of the Offered Securities will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment. Any such agent may be deemed to be an underwriter, as that term
is defined in the Securities Act, of the Offered Securities so offered and
sold.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is
reached, and the names of the specific managing underwriter or underwriters,
as well as any other underwriters, and the terms of the transactions,
including compensation of the underwriters and dealers, if any, will be set
forth in the Prospectus Supplement, which will be used by the underwriters to
make resales of Offered Securities.
If a dealer is utilized in the sale of Offered Securities, the Company
will sell such Offered Securities to the dealer, as principal. The dealer may
then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. The name of the dealer and
the terms of the transactions will be set forth in the Prospectus Supplement
relating thereto.
Offers to purchase Offered Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales will be
described in the Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under agreements which
may be entered into with the Company, to indemnification by the Company,
against certain liabilities, including liabilities under the 1933 Act, and
any such agents, underwriters or dealers, or their affiliates may be
customers of, engage in transactions with or perform services for the
Company, in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Offered Securities from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Such Contracts will be subject to only those
conditions set forth in the Prospectus Supplement. A commission indicated in
the Prospectus Supplement will be paid to underwriters and agents soliciting
purchases of Offered Securities pursuant to any such Contracts accepted by
the Company.
This Prospectus, together with the Prospectus Supplement, may also be used
by DLJSC in connection with offers and sales of Offered Securities related to
market-making transactions by and through DLJSC, at negotiated prices related
to prevailing market prices at the time of sale or otherwise. DLJSC may act
as principal or agent in such transactions.
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LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement,
certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon by Richards, Layton & Finger, Wilmington. The
validity of the Preferred Securities Guarantees and the Junior Subordinated
Debt Securities and certain other matters will be passed upon by Michael A.
Boyd, Senior Vice President and General Counsel to the Company and Davis Polk
& Wardwell. Mr. Boyd owns 22,466 restricted stock units of the Company and
holds options to purchase 39,772 shares of Common Stock. Davis Polk &
Wardwell from time to time provides legal services to the Company and its
subsidiaries.
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company as of December 31, 1995 and 1994 and for each of the years in the
three-year period ended December 31, 1995 have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated
herein by reference, and upon the authority of said firm as experts in
accounting and auditing.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, THE DLJ TRUSTS, ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT
SHALL CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
TABLE OF CONTENTS
PAGE
--------
Available Information ...................... 2
Incorporation of Certain Information by
Reference ................................. 2
Use of Proceeds ............................ 3
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends ................. 3
The Company ................................ 4
The DLJ Trusts ............................. 6
Description of the Preferred Securities ... 10
Description of the Preferred Securities
Guarantees ................................ 11
Description of the Junior Subordinated Debt
Securities ................................ 14
Plan of Distribution ....................... 20
Legal Matters .............................. 21
Experts .................................... 21
DONALDSON, LUFKIN &
JENRETTE, INC.
JUNIOR SUBORDINATED
DEBT SECURITIES
DLJ CAPITAL TRUST I
DLJ CAPITAL TRUST II
DLJ CAPITAL TRUST III
DLJ CAPITAL TRUST IV
PREFERRED SECURITIES GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
DONALDSON, LUFKIN & JENRETTE, INC.
PROSPECTUS
, 1996
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESES SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
ALTERNATE TO DEBT SECURITIES AND PREFERRED STOCK PROSPECTUS
SUBJECT TO COMPLETION, DATED AUGUST 15, 1996
PROSPECTUS
, 1996
$500,000,000
DONALDSON, LUFKIN & JENRETTE, INC.
DEBT SECURITIES AND PREFERRED STOCK
Donaldson, Lufkin & Jenrette, Inc. (the "Company") may from time to time
offer, together or separately, (i) senior or subordinated debt securities
(the "Debt Securities") or (ii) shares of its preferred stock, par value
$0.01 per share (the "Preferred Stock"). The Debt Securities and Preferred
Stock are collectively called the "Securities."
The Securities may be issued in one or more series or issuances in U.S.
dollars or in one or more foreign currencies, currency units or composite
currencies. By separate prospectus, the form of which is included in the
Registration Statement of which this Prospectus forms a part, four Delaware
statutory business trusts (the "Trusts"), which are wholly owned subsidiaries
of the Company, may from time to time severally offer preferred securities
guaranteed by the Company to the extent set forth therein and the Company may
offer from time to time junior subordinated debt securities either directly
or to a Trust. The aggregate initial public offering price of the securities
to be offered by this Prospectus and such other prospectus shall not exceed
$500,000,000 (or its equivalent in one or more foreign currencies, currency
units or composite currencies).
Specific terms of the securities in respect of which this Prospectus is
being delivered (the "Offered Securities") will be set forth in an
accompanying Prospectus Supplement (a "Prospectus Supplement"). The
Prospectus Supplement will set forth with regard to the particular Offered
Securities, without limitation, the following: (i) in the case of Debt
Securities, the ranking as senior or subordinated debt securities, the
specific designation, aggregate principal amount, authorized denomination,
maturity, rate (which may be fixed or variable) or method of calculation of
interest and dates for payment thereof, and any exchangeability, conversion,
redemption, prepayment or sinking fund provisions and any listing on a
securities exchange and (ii) in the case of Preferred Stock, the specific
designation, number of shares, purchase price and the rights, preferences and
privileges thereof and any qualifications or restrictions thereon (including
dividends, liquidation value, voting rights, terms for the redemption,
conversion or exchange thereof and any other specific terms of the Preferred
Stock) and any listing on a securities exchange. Unless otherwise indicated
in the Prospectus Supplement, the Company does not intend to list any of the
Securities on a national securities exchange.
The Senior Debt Securities, when issued, will be unsecured and will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
This Prospectus has been prepared for use by Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC") in connection with offers and sales of the
Offered Securities which may be made by it from time to time in market-making
transactions at negotiated prices relating to prevailing market prices at the
time of sale. The Company has been advised by DLJSC that it currently intends
to make a market in the Offered Securities; however, it is not obligated to
do so. Any such market-making may be discontinued at any time, and there is
no assurance as to the liquidity of, or trading market for, the Offered
Securities. DLJSC may act as principal or agent in such transactions. See
"Plan of Distribution." This Prospectus may not be used to consummate sales
of Offered Securities unless accompanied by a Prospectus Supplement.
<PAGE>
ALTERNATE TO DEBT SECURITIES AND PREFERRED STOCK PROSPECTUS
USE OF PROCEEDS
Donaldson, Lufkin & Jenrette, Inc. will not receive any proceeds from the
sale of the Offered Securities in any market-making transaction with which
this Prospectus may be delivered.
Alt-2
<PAGE>
ALTERNATE TO DEBT SECURITIES AND PREFERRED STOCK PROSPECTUS
PLAN OF DISTRIBUTION
This Prospectus has been prepared for use by DLJSC in connection with
offers and sales of the Offered Securities in market-making transactions at
negotiated prices related to prevailing market prices at the time of the
sale. DLJSC may act as principal or agent in such transactions. DLJSC has
advised the Company that it currently intends to make a market in the Offered
Securities, but it is not obligated to do so and may discontinue any such
market-making at any time without notice. Accordingly, no assurance can be
given as to the liquidity of, or the trading market for, the Offered
Securities.
Alt-3
<PAGE>
ALTERNATE TO DEBT SECURITIES AND PREFERRED STOCK PROSPECTUS
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, ANY AGENT OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF. NEITHER THIS
PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT SHALL CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO
OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
PAGE
--------
Available Information ...................... 2
Incorporation of Certain Information by
Reference ................................. 2
Use of Proceeds ............................ 3
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends ................. 3
The Company ................................ 4
Description of Capital Stock ............... 6
Description of Debt Securities ............. 9
Plan of Distribution ....................... 22
Legal Matters .............................. 22
Experts .................................... 23
$500,000,000
DONALDSON, LUFKIN &
JENRETTE, INC.
DEBT SECURITIES
PREFERRED STOCK
PROSPECTUS
, 1996
Alt-4
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT IS
DECLARED EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
ALTERNATE TO JUNIOR SUBORDINATED DEBT SECURITIES, PREFERRED SECURITIES
AND RELATED GUARANTEES PROSPECTUS
SUBJECT TO COMPLETION, DATED AUGUST 15, 1996
PROSPECTUS
, 1996
DONALDSON, LUFKIN & JENRETTE, INC.
JUNIOR SUBORDINATED DEBT SECURITIES
DLJ CAPITAL TRUST I
DLJ CAPITAL TRUST II
DLJ CAPITAL TRUST III
DLJ CAPITAL TRUST IV
PREFERRED SECURITIES GUARANTEED
TO THE EXTENT SET FORTH HEREIN BY
DONALDSON, LUFKIN & JENRETTE, INC.
Donaldson Lufkin & Jenrette, Inc. (the "Company") may from time to time
offer unsecured junior subordinated debt securities (the "Junior Subordinated
Debt Securities") consisting of debentures, notes or other evidences of
indebtedness in one or more series and in amounts, at prices and on terms to
be determined at or prior to the time of any such offering. The Junior
Subordinated Debt Securities when issued will be unsecured obligations of the
Company. The Company's obligations under the Junior Subordinated Debt
Securities will be subordinate and junior in right of payment to all Senior
Indebtedness (as defined herein) of the Company.
DLJ Capital Trust I, DLJ Capital Trust II, DLJ Capital Trust III and DLJ
Capital Trust IV (the "DLJ Trusts"), each a statutory business trust formed
under the laws of the State of Delaware, may offer and sell, from time to
time, preferred securities representing undivided beneficial interests in the
assets of the respective DLJ Trust ("Preferred Securities"). The payment of
periodic cash distributions ("distributions") with respect to Preferred
Securities of each of the DLJ Trusts out of moneys held by the Property
Trustee (as defined herein) of each of the DLJ Trusts, and payments on
liquidation of each DLJ Trust and on redemption of Preferred Securities of
such DLJ Trust, will be guaranteed by the Company as and to the extent
described herein (each such guarantee a "Preferred Securities Guarantee").
See "Description of the Preferred Securities Guarantees." The Company's
obligation under each Preferred Securities Guarantee is an unsecured
obligation of the Company and will rank (i) subordinate and junior in right
of payment to all other liabilities of the Company, including the Junior
Subordinated Debt Securities, except those made pari passu or subordinate by
their terms, and (ii) senior to all capital stock now or hereafter issued by
the Company and to any guarantee now or hereafter entered into by the Company
in respect of any of its capital stock. Junior Subordinated Debt Securities
may be issued and sold from time to time in one or more series by the Company
to a DLJ Trust, or a trustee of such trust, in connection with the investment
of the proceeds from the offering of Preferred Securities and Common
Securities (as defined herein) of such DLJ Trust. The Junior Subordinated
Debt Securities purchased by a DLJ Trust may be subsequently distributed pro
rata to holders of Preferred Securities and Common Securities in connection
with the dissolution of such DLJ Trust, upon the occurrence of certain events
as may be described in an accompanying Prospectus Supplement.
Specific terms of the Junior Subordinated Debt Securities or any series or
the Preferred Securities of any DLJ Trust in respect of which this Prospectus
is being delivered (the "Offered Securities") will be set forth in a
Prospectus Supplement with respect to such Offered Securities, which will
describe, without limitation and where applicable, the following: (i) in the
case of Junior Subordinated Debt Securities, the specific designation,
aggregate principal amount, authorized denomination, maturity, premium, if
any, redemption or sinking fund provisions, if any, interest rate (which may
be fixed or variable), if any, the time and method of calculating interest
payments, if any, dates on which premium, if any, and interests, if any, will
be payable, the right of the Company, if any, to defer payment of interest on
the Junior Subordinated Debt Securities and the maximum length of such
deferral period, the initial public offering price, and any listing on a
securities exchange and other specific terms of the offering; and (ii) in the
case of Preferred Securities, the specific designation, number of securities,
liquidation amount per security, initial public offering price, and any
listing on a securities exchange, distribution rate (or method of calculation
thereof), dates on which distributions shall be payable and dates from which
distributions shall accrue, voting rights (if any), terms for any conversion
or exchange into other securities, any redemption or sinking fund provisions,
any other rights, preferences, privileges, limitations or restrictions
relating to the Preferred Securities and the terms upon which the proceeds of
the sale of the Preferred Securities shall be used to purchase a specific
series of Junior Subordinated Debt Securities of the Company. Unless
otherwise indicated in the Prospectus Supplement, the Company does not intend
to list any of the securities on a national securities exchange.
Any Prospectus Supplement relating to any series of Offered Securities
will contain information concerning certain United States Federal income tax
considerations, if applicable, to the Offered Securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
This Prospectus has been prepared for use by Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC") in connection with offers and sales of the
Offered Securities which may be made by it from time to time in market-making
transactions at negotiated prices relating to prevailing market prices at the
time of sale. The Company has been advised by DLJSC that it currently intends
to make a market in the Offered Securities; however, it is not obligated to
do so. Any such market making may be discontinued at any time, and there is
no assurance as to the liquidity of, or trading market for, the Offered
Securities. DLJSC may act as principal or agent in such transactions. See
"Plan of Distribution." This Prospectus may not be used to consummate sales
of Offered Securities unless accompanied by a Prospectus Supplement.
Alt-5
<PAGE>
ALTERNATE TO JUNIOR SUBORDINATED DEBT SECURITIES, PREFERRED SECURITIES
AND RELATED GUARANTEES PROSPECTUS
USE OF PROCEEDS
Neither Donaldson, Lufkin & Jenrette, Inc. nor the DLJ Trusts will receive
any proceeds from the sale of the Offered Securities in any market making
transaction with which this Prospectus may be delivered.
Alt-6
<PAGE>
ALTERNATE TO JUNIOR SUBORDINATED DEBT SECURITIES, PREFERRED SECURITIES
AND RELATED GUARANTEES PROSPECTUS
PLAN OF DISTRIBUTION
This Prospectus has been prepared for use by DLJSC in connection with
offers and sales of the Offered Securities in market-making transactions at
negotiated prices related to prevailing market prices at the time of the
sale. DLJSC may act as principal or agent in such transactions. DLJSC has
advised the Company that it currently intends to make a market in the Offered
Securities, but it is not obligated to do so and may discontinue any such
market-making at any time without notice. Accordingly, no assurance can be
given as to the liquidity of, or the trading market for, the Offered
Securities.
Alt-7
<PAGE>
ALTERNATE TO JUNIOR SUBORDINATED DEBT SECURITIES, PREFERRED SECURITIES
AND RELATED GUARANTEES PROSPECTUS
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, THE DLJ TRUSTS, ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT
SHALL CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
TABLE OF CONTENTS
PAGE
--------
Available Information ...................... 2
Incorporation of Certain Information by
Reference ................................. 2
Use of Proceeds ............................ 3
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends ................. 3
The Company ................................ 4
The DLJ Trusts ............................. 6
Description of the Preferred Securities ... 10
Description of the Preferred Securities
Guarantees ................................ 11
Description of the Junior Subordinated Debt
Securities ................................ 14
Plan of Distribution ....................... 20
Legal Matters .............................. 21
Experts .................................... 21
DONALDSON, LUFKIN &
JENRETTE, INC.
JUNIOR SUBORDINATED
DEBT SECURITIES
DLJ CAPITAL TRUST I
DLJ CAPITAL TRUST II
DLJ CAPITAL TRUST III
DLJ CAPITAL TRUST IV
PREFERRED SECURITIES GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
DONALDSON, LUFKIN & JENRETTE, INC.
PROSPECTUS
, 1996
Alt-8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION
The following table sets forth the fees and expenses payable by the
Company in connection with the issuance and distribution of the securities
other than underwriting discounts and commissions. All of such expenses
except the Securities and Exchange Commission registration fee are estimated:
Securities and Exchange Commission registration fee $172,414
Blue Sky fees and expenses .......................... 15,000
Printing expense .................................... 100,000
Accounting fees and expenses ........................ 45,000
Legal fees and expenses ............................. 200,000
Rating agency fees .................................. 185,000
Trustee's fees and expenses ......................... 49,000
Miscellaneous ....................................... 33,586
----------
Total ........................................... $800,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty,
except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
the unlawful payment of dividends or unlawful stock purchases or redemptions)
or (iv) for any transaction from which a director derived an improper
personal benefit.
Section 145 of the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person in connection with any action, suit
or proceeding brought before or threatened by reason of the fact that the
person was a director, officer, employee or agent of such company, or is or
was serving as such with respect to another entity at the request of such
company. The DGCL also provides that the Company may purchase insurance on
behalf of any such director, officer, employee or agent.
The Company's Certificate of Incorporation provides in effect for the
indemnification by the Company of each director and officer of the Company to
the fullest extent permitted by applicable law.
ITEM 16. EXHIBITS
See index to exhibits at E-1.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
II-1
<PAGE>
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraph (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 15 above or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Donaldson,
Lufkin & Jenrette, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this amendment to the registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New
York, New York, on the 15th day of August, 1996.
DONALDSON, LUFKIN & JENRETTE, INC.
By: /s/ John Chalsty
-------------------------------------
John S. Chalsty
Chairman, Chief Executive Officer
and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------- --------------------------------- -----------------
<S> <C> <C>
/s/ John S. Chalsty Chairman, Chief Executive August 15, 1996
- ------------------------------ Officer and Director
John S. Chalsty
* President, Chief Operating August 15, 1996
- ------------------------------ Officer and Director
Joe L. Roby
* Vice Chairman and Director August 15, 1996
- ------------------------------
Carl B. Menges
* Executive Vice President, Chief August 15, 1996
- ------------------------------ Financial Officer and Director
Anthony F. Daddino
* Chairman, Financial Services August 15, 1996
- ------------------------------ Group and Director
Richard S. Pechter
* Chairman, Capital Markets Group August 15, 1996
- ------------------------------ and Director
Theodore P. Shen
* Chairman, Banking Group and August 15, 1996
- ------------------------------ Director
Hamilton E. James
* Senior Vice President and Chief August 15, 1996
- ------------------------------ Accounting Officer
Michael M. Bendik
Director
- ------------------------------
Claude Bebear
Director
- ------------------------------
Henri de Castries
* Director August 15, 1996
- ------------------------------
Jerry M. de St. Paer
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------- --------------------------------- -----------------
<S> <C> <C>
* Director August 15, 1996
- ------------------------------
Kevin C. Dolan
* Director August 15, 1996
- ------------------------------
Louis Harris
* Director August 15, 1996
- ------------------------------
Henri G. Hottinguer
Director
- ------------------------------
W. Edwin Jarmain
* Director August 15, 1996
- ------------------------------
Francis Jungers
* Director August 15, 1996
- ------------------------------
Joseph J. Melone
* Director August 15, 1996
- ------------------------------
W. J. Sanders
* Director August 15, 1996
- ------------------------------
John C. West
*By:/s/ John S. Chalsty
- ------------------------------
John S. Chalsty
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, DLJ Capital
Trust I, DLJ Capital Trust II, DLJ Capital Trust III and DLJ Capital Trust IV
each certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this amendment to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, New York, on the 15th day
of August, 1996.
DLJ CAPITAL TRUST I
By: Donaldson, Lufkin & Jenrette,
Inc., as Sponsor
By: /s/ Anthony F. Daddino
-------------------------------------
Name: Anthony F. Daddino
Title: Executive Vice President,
Chief Financial Officer and
Director
DLJ CAPITAL TRUST II
By: Donaldson, Lufkin & Jenrette,
Inc., as Sponsor
By: /s/ Anthony F. Daddino
-------------------------------------
Name: Anthony F. Daddino
Title: Executive Vice President,
Chief Financial Officer and
Director
DLJ CAPITAL TRUST III
By: Donaldson, Lufkin & Jenrette,
Inc., as Sponsor
By: /s/ Anthony F. Daddino
-------------------------------------
Name: Anthony F. Daddino
Title: Executive Vice President,
Chief Financial Officer and
Director
DLJ CAPITAL TRUST IV
By: Donaldson, Lufkin & Jenrette,
Inc., as Sponsor
By: /s/ Anthony F. Daddino
-------------------------------------
Name: Anthony F. Daddino
Title: Executive Vice President,
Chief Financial Officer and
Director
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NO. DESCRIPTION NUMBERED PAGE
- ----------- ----------------------------------------------------------------------------- ----------------
<S> <C> <C>
1.1 Form of Underwriting Agreement relating to the Debt Securities ..............
1.2 Form of Underwriting Agreement relating to the Preferred Stock ..............
1.3 Form of Underwriting Agreement relating to the Preferred Securities .........
4.1 Senior Debt Indenture dated as of October 25, 1995 between the Company and
The Bank of New York, as Trustee* ..........................................
4.2 Form of Senior Debt Securities++ .............................................
4.3 Form of Subordinated Debt Indenture between the Company and The Bank of New
York as Trustee ............................................................
4.4 Form of Subordinated Debt Securities .........................................
4.5 Form of Junior Subordinated Debt Indenture between the Company and The Bank
of New York as Trustee .....................................................
4.6 Declaration of Trust of DLJ Capital Trust I*** ...............................
4.7 Certificate of Trust of DLJ Capital Trust I*** ...............................
4.8 Declaration of Trust of DLJ Capital Trust II*** ..............................
4.9 Certificate of Trust of DLJ Capital Trust II*** ..............................
4.10 Declaration of Trust of DLJ Capital Trust III*** .............................
4.11 Certificate of Trust of DLJ Capital Trust III*** .............................
4.12 Declaration of Trust of DLJ Capital Trust IV*** ..............................
4.13 Certificate of Trust of DLJ Capital Trust IV*** ..............................
4.14 Form of Amended and Restated Declaration of Trust for each of DLJ Capital
Trust I, II, III, and IV ...................................................
4.15 Form of Preferred Security (included in Exhibit 4.14) ........................
4.16 Form of Supplemental Indenture to be used in connection with issuance of
Junior Subordinated Debt Securities and Preferred Securities ...............
4.17 Form of Junior Subordinated Debt Security (included in Exhibit 4.16) ........
4.18 Form of Guarantee with respect to Preferred Securities .......................
5.1 Opinion of Davis Polk & Wardwell .............................................
5.2 Opinion of Richards, Layton & Finger .........................................
8.1 Opinion of Davis Polk & Wardwell .............................................
12.1 Computation of ratio of earnings to fixed charges and ratio of earnings to
combined fixed charges and preferred stock dividends .......................
23.1 Consent of Davis Polk & Wardwell (included in Exhibit 5.1) ...................
23.2 Consent of Richards, Layton & Finger (included in Exhibit 5.2) ..............
23.3 Consent of KPMG Peat Marwick LLP .............................................
24.1 Powers of Attorney for the Company *** .......................................
24.2 Powers of Attorneys for Donaldson, Lufkin & Jenrette, Inc., as sponsor, to
sign the Registration Statement on behalf of DLJ Capital Trust I, II, III
and IV (included in Exhibits 4.6, 4.8, 4.10 and 4.12, respectively) ........
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, under the Senior Indenture** ..........
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, under the Subordinated Indenture ......
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, under the Junior Subordinated Indenture
E-1
<PAGE>
EXHIBIT SEQUENTIALLY
NO. DESCRIPTION NUMBERED PAGE
- ----------- ----------------------------------------------------------------------------- ----------------
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, with respect to the Amended and
Restated Declaration of Trust of DLJ Capital Trust I .......................
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, with respect to the Amended and
Restated Declaration of Trust of DLJ Capital Trust II ......................
25.6 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, with respect to the Amended and
Restated Declaration of Trust of DLJ Capital Trust III .....................
25.7 Statement of Eligibility under the Trust Indenture Act of 1939, as amended of
The Bank of New York, as Trustee, with respect to the Amended and Restated
Declaration of Trust of DLJ Capital Trust IV ...............................
25.8 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, under the Preferred Securities
Guarantee of the Company with respect to the Preferred Securities of DLJ
Capital Trust I ............................................................
25.9 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, under the Preferred Securities
Guarantee of the Company with respect to the Preferred Securities of DLJ
Capital Trust II ...........................................................
25.10 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, under the Preferred Securities
Guarantee of the Company with respect to the Preferred Securities of DLJ
Capital Trust III ..........................................................
25.11 Statement of Eligibility under the Trust Indenture Act of 1939, as amended of
The Bank of New York, as Trustee under the Preferred Securities Guarantee of
the Company with respect to the Preferred Securities of DLJ Capital Trust IV
</TABLE>
- ------------
++ Incorporated by reference to the corresponding exhibit to Donaldson,
Lufkin & Jenrette, Inc.'s Registration Statement on Form S-3
(Registration No. 33-80771).
* Incorporated by reference to exhibit 4.1 to the Donaldson, Lufkin &
Jenrette, Inc.'s Quarterly Report on Form 10-Q, filed on December 8,
1995.
** Incorporated by reference to the corresponding exhibit to Donaldson,
Lufkin & Jenrette, Inc.'s Registration Statement on Form S-1
(Registration No. 33-96768).
*** Previously filed.
E-2
EXHIBIT 1.1
[FORM OF DEBT SECURITIES
UNDERWRITING AGREEMENT]
$-------------
DONALDSON, LUFKIN & JENRETTE, INC.
[FULL TITLE OF THE DEBT SECURITIES]
UNDERWRITING AGREEMENT
__________, 199_
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
As representatives of the
several underwriters
named in Schedule I hereto
277 Park Avenue
New York, New York 10172
Dear Sirs:
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation
(the "Company") proposes to issue and sell $____________ principal amount of
its [FULL TITLE OF THE DEBT SECURITIES] (the "Securities") to the several
underwriters named in Schedule I hereto (the "Underwriters"). The Securities
are to be issued pursuant to the provisions of an Indenture dated as of
_____________ (the "Indenture") between the Company and The Bank of New York,
as Trustee (the "Trustee").
1. Registration Statement and Prospectus. The
-------------------------------------
Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with
the provisions of the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on
Form S-3 relating to, among other things, certain debt
securities and preferred stock, par value $0.01 per share,
of the Company (the "Shelf Securities") to be issued from
time to time by the Company. The Company also has filed
with, or proposes to file with, the Commission pursuant to
<PAGE>
Rule 424 under the Act, a prospectus supplement specifically relating to the
Securities. The registration statement as amended at the date of this
Agreement is hereinafter referred to as the Registration Statement; and the
related prospectus covering the Shelf Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the Basic
Prospectus. The Basic Prospectus as supplemented by the prospectus supplement
specifically relating to the Securities in the form first used to confirm
sales of the Securities is hereinafter referred to as the Prospectus. Any
reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of prospectus (a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the Prospectus,
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any
reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of the
Basic Prospectus, any preliminary prospectus or the Prospectus, as the case
may be, which are deemed to be incorporated by reference therein.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company
the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto, at ____% of the principal amount thereof
(the "Purchase Price") plus accrued interest thereon, if any, from __________
__, 199_ to the date of payment and delivery.
3. Terms of Public Offering. The Company is
advised by you that the Underwriters propose (i) to make a
public offering of their respective portions of the
Securities and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the
Underwriters of and payment for the Securities shall be made
at 10:00 A.M., New York City time, on the [third] business
2
<PAGE>
day (the "Closing Date") following the date of the public offering, at such
place as you shall designate. The Closing Date and the location of delivery of
and the form of payment for the Securities may be varied by agreement between
you and the Company.
[Certificates for the Securities shall be registered in such
names and issued in such denominations as you shall request in writing not
later than two full business days prior to the Closing Date. Such certificates
shall be made available to you for inspection not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date.
Certificates in definitive form evidencing the Securities shall be delivered
to you on the Closing Date with any transfer taxes thereon duly paid by the
Company, for the respective accounts of the several Underwriters, against
payment of the Purchase Price therefor by certified or official bank checks
payable in immediately available funds to the order of the Company.]
5. Agreements of the Company. The Company
agrees with you:
(a) To file the Prospectus in a form approved by you
pursuant to Rule 424 under the Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities.
(b) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act during the period mentioned in paragraph (f) below.
(c) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when any amendment to the
Registration Statement becomes effective, (ii) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes,
and (iv) of the happening of any event during the period referred to
in paragraph (f) below which makes any statement of a material fact
made in the Registration Statement or the Prospectus untrue or which
requires the making of any additions to or
3
<PAGE>
changes in the Registration Statement or the Prospectus in order to
make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will make every reasonable
effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(d) To furnish to you, without charge, _______ signed copies
of the Registration Statement as first filed with the Commission and
of each amendment to it, including all exhibits and documents
incorporated by reference therein, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it,
without exhibits, and documents incorporated by reference therein as
you may reasonably request.
(e) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to
which you shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to
the Registration Statement or supplement to the Prospectus which may
be necessary or advisable in connection with the distribution of the
Securities by you, and to use its best efforts to cause the same to
become promptly effective.
(f) From time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as
such Underwriter or dealer may reasonably request.
(g) If during the period specified in paragraph (f) any
event shall occur as a result of which, in the opinion of counsel for
the Underwriters it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as
4
<PAGE>
so amended or supplemented, will not in the light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with law, and to furnish to each Underwriter
and to such dealers as you shall specify, such number of copies
thereof as such Underwriter or dealers may reasonably request.
(h) Prior to any public offering of the Securities, to
cooperate with you and counsel for the Underwriters in connection
with the registration or qualification of the Securities for offer
and sale by the several Underwriters and by dealers under the state
securities or Blue Sky laws of such jurisdictions as you may request,
to continue such qualification in effect so long as required for
distribution of the Securities and to file such consents to service
of process or other documents as may be necessary in order to effect
such registration or qualification.
(i) To mail and make generally available to its security
holders as soon as reasonably practicable an earnings statement
covering a period of at least twelve months after the effective date
of the Registration Statement (but in no event commencing later than
90 days after such date) which shall satisfy the provisions of
Section 11(a) of the Act, and to advise you in writing when such
statement has been so made available.
(j) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the
end of each fiscal year to the record holders of its Securities a
financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to
include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated
statement of shareholders' equity as of the end of and for such
fiscal year, together with comparable information as of the end of
and for the preceding year, certified by independent certified public
accountants, and (ii) to mail and make generally available as soon as
practicable after the end of each quarterly period (except for the
last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations
and a consolidated statement of cash flows (and similar financial
reports of all unconsolidated subsidiaries,
5
<PAGE>
if any) as of the end of and for such period, and for the period from
the beginning of such year to the close of such quarterly period,
together with comparable information for the corresponding periods of
the preceding year.
(k) During the period referred to in paragraph (j), to
furnish to you as soon as available a copy of each report or other
publicly available information of the Company mailed to the security
holders of the Company or filed with the Commission and such other
publicly available information concerning the Company and its
subsidiaries as you may reasonably request.
(l) To pay all costs, expenses, fees and taxes incident to
(i) the preparation, printing, filing and distribution under the Act
of the Registration Statement (including financial statements and
exhibits), each preliminary prospectus and all amendments and
supplements to any of them prior to or during the period specified in
paragraph (f), (ii) the printing and delivery of the Prospectus and
all amendments or supplements to it during the period specified in
paragraph (f), (iii) the printing and delivery of this Agreement, the
Preliminary and Supplemental Blue Sky Memoranda and all other
agreements, memoranda, correspondence and other documents printed and
delivered in connection with the offering of the Securities
(including in each case any disbursements of counsel for the
Underwriters relating to such printing and delivery), (iv) the
registration or qualification of the Securities for offer and sale
under the securities or Blue Sky laws of the several states
(including in each case the fees and disbursements of counsel for the
Underwriters relating to such registration or qualification and
memoranda relating thereto), (v) filings and clearance with the
National Association of Securities Dealers, Inc. in connection with
the offering, (vi) the listing of the Securities on any exchange or
the National Association of Securities Dealers Automated Quotation
system ("NASDAQ") National Market System and (vii) furnishing such
copies of the Registration Statement, the Prospectus and all
amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Securities by the
Underwriters or by dealers to whom Securities may be sold.
[(m) To use its best efforts to maintain the inclusion of
the Securities in the NASDAQ National Market System (or on a national
securities exchange)
6
<PAGE>
for a period of five years after the effective date of
the Registration Statement.]
(n) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than (i) the
Securities and (ii) commercial paper issued in the ordinary course of
business), without your prior written consent.
(o) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement
by the Company prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Securities.
(p) The Company will, for so long as any of the Securities
are outstanding and if, in the reasonable judgment of any
Underwriter, such Underwriter or any of its affiliates (as defined in
the rules and regulations under the Act) is required to deliver a
prospectus in connection with sales of the Securities (i)
periodically amend the Registration Statement so that the information
contained in the Registration Statement complies with the
requirements of Section 10(a) of the Act, (ii) amend the Registration
Statement or supplement the Prospectus when necessary to reflect any
material changes in the information provided therein, (iii) provide
such Underwriter with copies of each amendment or supplement filed
and such other documents, including opinions of counsel and "comfort"
letters, as such Underwriter may reasonably request and (iv) agree to
indemnify such Underwriter and if applicable, contribute to any
amount paid or payable by such Underwriter in a manner substantially
identical to that specified in Section 7 hereof (with appropriate
modifications).
6. Representations and Warranties of the Company. The
Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
7
<PAGE>
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act, and
none of such documents, when they were filed with the Commission,
contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus, when such documents are filed with the Commission
will conform in all material respects to the requirements of the
Exchange Act, as applicable, and will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act; and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light
8
<PAGE>
of the circumstances under which they were made, not
misleading.
(e) The Company and each of Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC"), DLJ Capital Corporation, DLJ
Mortgage Capital, Inc. and each of the Company's other "significant
subsidiaries" as such term is defined in Rule 1-02 of Regulation S-X
under the Act (collectively, the "Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole.
(f) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's Subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of
any nature.
(g) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to the Underwriters against payment therefor
as provided by this Agreement, will be entitled to the benefits of
the Indenture, and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by applicable
law).
9
<PAGE>
(i) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(j) The Securities conform as to legal matters to
the description thereof contained in the Prospectus.
(k) Neither the Company nor any of its Subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument material to the conduct
of the business of the Company and its Subsidiaries, taken as a
whole, to which the Company or any of its Subsidiaries is a party or
by which it or any of its Subsidiaries or their respective property
is bound.
(l) The execution, delivery and performance of this
Agreement, the Indenture and the Securities and compliance by the
Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will
not require any consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other
governmental body (except as such may be required under the Act or
state securities or Blue Sky laws) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its
Subsidiaries or any agreement, indenture or other instrument to which
it or any of its Subsidiaries is a party or by which it or any of its
Subsidiaries or their respective property is bound, or violate or
conflict with any laws, administrative regulations or rulings or
court decrees applicable to the Company, any of its Subsidiaries or
their respective property.
(m) Except as otherwise set forth or incorporated by
reference in the Prospectus, there are no material legal or
governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of
10
<PAGE>
which any of their respective property is the subject, and, to the
best of the Company's knowledge, no such proceedings are threatened
or contemplated. No contract or document of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement is not so
described, filed or incorporated by reference as required.
(n) Neither the Company nor any of its Subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws,
nor any provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which in each case
might result in any material adverse change in the business,
prospects, financial condition or results of operation of the Company
and its Subsidiaries, taken as a whole.
(o) The Company and each of its Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business; the Company and each of its Subsidiaries has fulfilled and
performed all of its material obligations with respect to such
permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder
of any such permit; and, except as described or incorporated by
reference in the Prospectus, such permits contain no restrictions
that are materially burdensome to the Company and its Subsidiaries,
taken as a whole.
(p) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with
11
<PAGE>
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would
not, singly or in the aggregate, have a material adverse effect on
the Company and its Subsidiaries, taken as a whole.
(q) Except as otherwise set forth or incorporated by
reference in the Prospectus or such as are not material to the
business, prospects, financial condition or results of operation of
the Company and its Subsidiaries, taken as a whole, the Company and
each of its Subsidiaries has good and marketable title, free and
clear of all liens, claims, encumbrances and restrictions except
liens for taxes not yet due and payable, to all property and assets
described in the Registration Statement as being owned by it. All
leases to which the Company or any of its Subsidiaries is a party are
valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change in the
business, prospects, financial condition or results of operation of
the Company and its Subsidiaries taken as a whole, and the Company
and its Subsidiaries enjoy peaceful and undisturbed possession under
all such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the
Company or such Subsidiary.
(r) The Company and each of its Subsidiaries
maintains reasonably adequate insurance.
(s) KPMG Peat Marwick LLP are independent public accountants
with respect to the Company as required by the Act.
(t) The financial statements, together with related
schedules and notes forming part of or incorporated by reference in
the Registration Statement and the Prospectus (and any amendment or
supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of
the Company and its subsidiaries on the basis stated or incorporated
by reference in the Registration Statement at the respective dates or
for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout
12
<PAGE>
the periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth or
incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) is, in all
material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records
of the Company and its subsidiaries [and the pro forma financial
information, and the related notes thereto, included or incorporated
by reference in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable requirements of the
Act and Exchange Act, as applicable].
(u) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(v) Except as described or incorporated by reference in the
Prospectus, no holder of any security of the Company has any right to
require registration of shares of common stock or any other security
of the Company.
(w) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(x) The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(y) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and
all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or any
of its subsidiaries have been paid,
13
<PAGE>
other than those being contested in good faith and for which adequate
reserves have been provided.
7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriters furnished in
writing to the Company by or on behalf of any Underwriter through you
expressly for use therein.
(b) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company, such Underwriter shall promptly notify the Company
in writing and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses. Any Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the employment of such counsel shall have been specifically authorized in
writing by the Company, (ii) the Company shall have failed to assume the
defense and employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both such Underwriter or such
controlling person and the Company and such Underwriter or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Company (in which case the Company shall not have the right
to assume the defense of such action on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company shall not,
in connection with any one such action or
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<PAGE>
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for all such Underwriters and controlling persons, which
firm shall be designated in writing by Donaldson, Lufkin & Jenrette Securities
Corporation and that all such fees and expenses shall be reimbursed as they
are incurred). The Company shall not be liable for any settlement of any such
action effected without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Underwriter and any such controlling person from and against any loss or
liability by reason of such settlement. Notwithstanding the immediately
preceding sentence, if in any case where the fees and expenses of counsel are
at the expense of the indemnifying party and an indemnified party shall have
requested the indemnifying party to reimburse the indemnified party for such
fees and expenses of counsel as incurred, such indemnifying party agrees that
it shall be liable for any settlement of any action effected without its
written consent if (i) such settlement is entered into more than ten business
days after the receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall have failed to reimburse the indemnified
party in accordance with such request for reimbursement prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter
but only with reference to information relating to such Underwriter furnished
in writing by or on behalf of such Underwriter through you expressly for use
in the Registration Statement, the Prospectus or any preliminary prospectus.
In case any action shall be brought against the Company, any of its directors,
any such officer or any person controlling the Company based on the
Registration Statement, the Prospectus or any preliminary
15
<PAGE>
prospectus and in respect of which indemnity may be sought against any
Underwriter, the Underwriter shall have the rights and duties given to the
Company (except that if the Company shall have assumed the defense thereof,
such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and the
Company, its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the Underwriter, by Section
7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the
public of the Securities, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
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<PAGE>
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective number of Securities purchased by each of the
Underwriters hereunder and not joint.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the
Closing Date.
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act,
and at the Closing Date no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings
for that purpose shall have been commenced or shall be pending before
or contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been
any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change,
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<PAGE>
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act.
(d)(i) Since the date of the latest balance sheet included
or incorporated by reference in the Registration Statement and the
Prospectus, there shall not have been any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, affairs or
business prospects, whether or not arising in the ordinary course of
business, of the Company, (ii) since the date of the latest balance
sheet included or incorporated by reference in the Registration
Statement and the Prospectus there shall not have been any change, or
any development involving a prospective material adverse change, in
the capital stock or in the long-term debt of the Company from that
set forth or incorporated by reference in the Registration Statement
and Prospectus, (iii) the Company and its Subsidiaries shall have no
liability or obligation, direct or contingent, which is material to
the Company and its Subsidiaries, taken as a whole, other than those
reflected or incorporated by reference in the Registration Statement
and the Prospectus and (iv) on the Closing Date you shall have
received a certificate dated the Closing Date, signed by
_______________ and _______________, in their capacities as the
_______________ and _______________ of the Company, confirming the
matters set forth in paragraphs (a), (b), (c) and (d) of this Section
8.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you), dated the Closing Date, of Davis Polk &
Wardwell, counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has the corporate power
and authority required to carry on its business as it is
currently being conducted and to own, lease and operate its
properties;
(ii) the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will be entitled
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<PAGE>
to the benefits of the Indenture and will be valid and
binding obligations of the Company enforceable against the
Company in accordance with their terms except (a) as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights and remedies generally and (b) as such
enforcement may be limited by general principles of equity,
regardless of whether enforcement is sought in a proceeding
at law or in equity;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, except as rights to indemnity and
contribution thereunder may be limited by applicable law;
(iv) the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, and has been duly
authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery
thereof by the Trustee) is a valid and binding agreement of
the Company, enforceable in accordance with its terms except
(a) as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and (b)
as such enforcement may be limited by general principles of
equity, regardless of whether enforcement is sought in a
proceeding at law or in equity;
(v) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness
has been issued and no proceedings for that purpose are, to
the knowledge of such counsel, pending before or
contemplated by the Commission;
(vi) the statements (A) in the Prospectus under the
captions "____________", "____________", ["Description of
Notes/Debentures",] "Description of Debt Securities",
"Description of Capital Stock", "Plan of Distribution" and
"Underwriting", [(B) incorporated by reference in the
Prospectus from Item 3 of Part I of the Company's Annual
Report on Form 10-K for the year ended ________, 199_, (C)
incorporated by reference in the Prospectus from Item 1 of
Part II of the Company's Quarterly Reports on Form 10-Q, if
any, filed since such Annual Report, (D) incorporated by
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<PAGE>
reference in the Prospectus from Item 5 of the Company's
Current Reports on Form 8-K, if any, filed since such Annual
Report] and (E) in the Registration Statement in Item 15 of
Part II, insofar as such statements constitute a summary of
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to
such legal matters, documents and proceedings;
[(vii) such counsel is of the opinion ascribed
to it in the Prospectus under the caption
"Taxation";]
(viii) the execution, delivery and performance of this
Agreement, the Indenture and the Securities and compliance
by the Company with all the provisions hereof and thereof
will not, to the best of such counsel's knowledge based
solely upon due inquiry of responsible officers of the
Company, require any consent, approval, authorization or
other order of any court, regulatory body, administrative
agency or other governmental body (except such as may be
required under the Act, the Trust Indenture Act or state
securities or Blue Sky laws or by the National Association
of Securities Dealers Inc.), except where the failure to
obtain such consents, approvals, authorizations or other
orders would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
(ix) to the best of such counsel's knowledge, based
solely upon due inquiry of responsible officers of the
Company, there is no legal or governmental proceeding
pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective
property is subject which is required to be described in the
Registration Statement or the Prospectus and is not so
described or incorporated by reference, or of any contract
or other document which is required to be described in the
Registration Statement or the Prospectus or is required to
be filed as an exhibit to the Registration Statement which
is not described or filed or incorporated by reference as
required;
(x) the Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended;
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<PAGE>
(xi) to the best of such counsel's knowledge, based
solely upon due inquiry of responsible officers of the
Company, no holder of any security of the Company has any
right to require registration of shares of common stock or
any other security of the Company except as disclosed or
incorporated by reference in the Prospectus;
(xii) each document incorporated by reference in the
Registration Statement and the Prospectus (except for the
financial statements included therein as to which such
counsel need express no opinion) complied as to form when
filed with the Commission in all material respects with the
Exchange Act; and
(xiii) (1) the Registration Statement and the Prospectus
and any supplement or amendment thereto (except for
financial statements as to which no opinion need be
expressed) comply as to form in all material respects with
the Act, and (2) such counsel believes that (except for
financial statements, as aforesaid and except for that part
of the Registration Statement that constitutes the Forms
T-1) the Registration Statement and the prospectus included
therein at the time the Registration Statement became
effective did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and that the Prospectus, as amended or
supplemented, if applicable (except for financial
statements, as aforesaid) does not contain any untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading.
In giving such opinion with respect to the matters covered
by clauses (xii) and (xiii) such counsel may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated by reference and review and discussion of
the contents thereof, but are without independent check or verification except
as specified.
(f) You shall have received on the Closing Date
an opinion (satisfactory to you and counsel for the
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<PAGE>
Underwriters), dated the Closing Date, of the General Counsel for the Company,
to the effect that:
(i) each of the Subsidiaries has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority required to carry
on its business as it is currently being conducted and to
own, lease and operate its properties;
(ii) the Company and each of its Subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of
property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Company and its Subsidiaries, taken as a
whole;
(iii) all of the outstanding shares of capital stock of,
or other ownership interests in, each of the Subsidiaries
have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned by the Company, free
and clear of any security interest, claim, lien, encumbrance
or adverse interest of any nature;
(iv) to the best of such counsel's knowledge, the
Company is not in violation of its charter or by-laws,
except for such violations that would not have a material
adverse effect on the Company and its Subsidiaries, taken as
a whole;
(v) to the best of such counsel's knowledge, none of
the Subsidiaries is in violation of its respective
certificate of incorporation or by-laws, except for such
violations that would not have a material adverse effect on
the Company and its Subsidiaries, taken as a whole, and
neither the Company nor any of its Subsidiaries is in
default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any
other agreement, indenture or instrument material to the
condition of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company or any
of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries or any of their respective
properties are bound;
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<PAGE>
(vi) the execution, delivery and performance by the
Company of this Agreement and compliance by the Company with
all the provisions hereof will not, (A) conflict with or
constitute a breach of any of the terms or provisions of the
charter or by-laws of the Company or any of its
Subsidiaries; (B) violate or conflict with any laws,
administrative regulations or, to the best of such counsel's
knowledge, rulings or court decrees applicable to the
Company or any of its Subsidiaries or their respective
properties except for such violations or conflicts that
would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole; or (C) to the best of
such counsel's knowledge, conflict with or constitute a
breach of any of the terms or provisions of, or a default
under, any agreement, indenture or other instrument material
to the condition of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company or any
of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries or any of their respective
properties are bound;
(vii) to the best of such counsel's knowledge, the
Company and each of its Subsidiaries has such permits,
licenses, franchises and authorizations (collectively,
"permits") of and from, and has made such declarations and
filings with, governmental or regulatory authorities,
including, without limitation, state regulatory
organizations, as are necessary to own, lease and operate
its respective properties and to conduct its business in the
manner described or incorporated by reference in the
Prospectus, except where the failure to obtain such permits
or make such declarations and filings would not have a
material adverse effect on the Company and its Subsidiaries,
taken as a whole; to the best of such counsel's knowledge,
the Company and each of its Subsidiaries has fulfilled and
performed all of its obligations with respect to such
permits, except where failure to do so would not have a
material adverse effect on the Company and its Subsidiaries,
taken as a whole, and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of
the rights of the holder of any such permit, except where
such revocation, termination or impairment would not have a
material adverse effect on the
23
<PAGE>
Company and its Subsidiaries, taken as a whole, subject, in
each case, to such qualifications as may be set forth or
incorporated by reference in the Prospectus; and, to the
best of such counsel's knowledge, except as described or
incorporated by reference in the Prospectus, such permits
contain no restrictions that are materially burdensome to
the Company or any of its Subsidiaries;
(viii) to the best of such counsel's knowledge, all leases
to which the Company or any of its Subsidiaries is a party
are valid and binding and no default has occurred or is
continuing thereunder which might result in any material
adverse change in the business, prospects, financial
condition or results of operation of the Company and its
Subsidiaries, taken as a whole, and the Company and its
Subsidiaries enjoy peaceful and undisturbed possession under
all such leases to which any of them is a party as lessee
with such exceptions as do not materially interfere with the
use made by the Company or such Subsidiary;
(ix) the statements in the Prospectus under the caption
"______________", insofar as such statements constitute a
summary of legal matters referred to therein, fairly present
the information called for with respect to such legal
matters;
(x) each document incorporated by reference in the
Registration Statement and the Prospectus (except for the
financial statements included therein as to which such
counsel need express no opinion) complied as to form when
filed with the Commission in all material respects with the
Exchange Act; and
(xi) (1) the Registration Statement and the Prospectus
and any supplement or amendment thereto (except for
financial statements as to which no opinion need be
expressed) comply as to form in all material respects with
the Act, and (2) such counsel believes that (except for
financial statements, as aforesaid and except for the part
of the Registration Statement that constitutes the Forms
T-1) the Registration Statement and the prospectus included
therein at the time the Registration Statement became
effective did not contain any untrue statement of a material
fact or
24
<PAGE>
omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
and that the Prospectus, as amended or supplemented, if
applicable (except for financial statements, as aforesaid)
does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
In giving such opinion with respect to the matters covered
by clause (xi) such counsel may state that his opinion and belief are based
upon his participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
(g) You shall have received a letter on and as of the
Closing Date, in form and substance satisfactory to you, from KPMG
Peat Marwick LLC, independent public accountants, with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus and substantially in
the form and substance of the letter delivered to you by KPMG Peat
Marwick LLC on the date of this Agreement.
(h) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the
Company at or prior to the Closing Date.
9. Effective Date of Agreement and Termination.
This Agreement shall become effective upon the execution of
this Agreement.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any adverse change or
development involving a prospective adverse change in the condition, financial
or otherwise, of the Company or any of its subsidiaries or the earnings,
affairs, or business prospects of the Company or any of its subsidiaries,
whether or not arising in the ordinary course of business, which would, in
your judgment, make it impracticable to market the Securities on the terms and
in
25
<PAGE>
the manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market System or limitation on
prices for securities on any such exchange or National Market System, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Company or
any Subsidiary, (v) the declaration of a banking moratorium by either federal
or New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal
affairs which in your opinion has a material adverse effect on the financial
markets in the United States.
If on the Closing Date any one or more of the Underwriters
shall fail or refuse to purchase the Securities which it or they have agreed
to purchase hereunder on such date and the aggregate number of Securities
which such defaulting Underwriter or Underwriters, as the case may be, agreed
but failed or refused to purchase is not more than one-tenth of the total
number of Securities to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion
which the number of Securities set forth opposite its name in Schedule I bears
to the total number of Securities which all the non-defaulting Underwriters,
as the case may be, have agreed to purchase, or in such other proportion as
you may specify, to purchase the Securities which such defaulting Underwriter
or Underwriters, as the case may be, agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Securities which
any Underwriter has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 9 by an amount in excess of one-ninth of
such number of Securities without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Securities and the aggregate number of Securities with respect to
which such default occurs is more than one-tenth of the aggregate number of
Securities to be purchased on such date by all Underwriters and arrangements
satisfactory to you and the Company for
26
<PAGE>
purchase of such Securities are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
10. Miscellaneous. Notices given pursuant to any provision
of this Agreement shall be addressed as follows: (a) if to the Company, to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York 10172,
Attention: Michael A. Boyd, and (b) if to any Underwriter or to you, to you
c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New
York, New York 10172, Attention: Syndicate Department, or in any case to such
other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, its officers
and directors and of the several Underwriters set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Securities, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or by or on behalf of the Company, the officers or directors
of the Company or any controlling person of the Company, (ii) acceptance of
the Securities and payment for them hereunder and (iii) termination of this
Agreement.
If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the several Underwriters for all out-of-pocket expenses
(including the fees and disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any
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<PAGE>
right under or by virtue of this Agreement. The term "successors and assigns"
shall not include a purchaser of any of the Securities from any of the several
Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
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<PAGE>
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE, INC.
By______________________________
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By__________________________
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SCHEDULE I
Number of Securities
Underwriters to be Purchased
------------- --------------------
Donaldson, Lufkin & Jenrette
Securities Corporation
-----------
Total
30
EXHIBIT 1.2
[FORM OF PREFERRED STOCK
UNDERWRITING AGREEMENT]
__________ Shares
DONALDSON, LUFKIN & JENRETTE, INC.
Preferred Stock
UNDERWRITING AGREEMENT
__________, 199_
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
As representatives of the
several underwriters
named in Schedule I hereto
277 Park Avenue
New York, New York 10172
Dear Sirs:
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation
(the "Company") proposes to issue and sell ____________ shares of its
preferred stock, par value $0.01 per share (the "Firm Shares") to the several
underwriters named in Schedule I hereto (the "Underwriters"). The Company also
proposes to issue and sell to the several Underwriters not more than _______
additional shares of its preferred stock, par value $0.01 per share (the
"Additional Shares") if requested by the Underwriters as provided in Section 2
hereof. The Firm Shares and the Additional Shares are herein collectively
called the Shares. The shares of preferred stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the Preferred Stock.
1. Registration Statement and Prospectus. The
Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with
the provisions of the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder
<PAGE>
(collectively called the "Act"), a registration statement on Form S-3 relating
to, among other things, certain debt securities and preferred stock, par value
$0.01 per share, of the Company (the "Shelf Securities") to be issued from
time to time by the Company. The Company also has filed with, or proposes to
file with, the Commission pursuant to Rule 424 under the Act, a prospectus
supplement specifically relating to the Securities. The registration statement
as amended at the date of this Agreement is hereinafter referred to as the
Registration Statement; and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the Basic Prospectus. The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the Prospectus. Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act which were filed under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the
Prospectus, as the case may be; and any reference to "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any preliminary prospectus or the Prospectus shall be deemed to refer to and
include any documents filed under the Exchange Act after the date of this
Agreement, or the date of the Basic Prospectus, any preliminary prospectus or
the Prospectus, as the case may be, which are deemed to be incorporated by
reference therein.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company at
a price per share of $______ (the "Purchase Price"), the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to issue and sell the Additional Shares and the Underwriters shall have the
right to purchase, severally and not jointly, up to _______
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Additional Shares from the Company at the Purchase Price. Additional Shares
may be purchased solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. The Underwriters may exercise
their right to purchase Additional Shares in whole or in part from time to
time by giving written notice thereof to the Company within 30 days after the
date of this Agreement. You shall give any such notice on behalf of the
Underwriters and such notice shall specify the aggregate number of Additional
Shares to be purchased pursuant to such exercise and the date for payment and
delivery thereof. The date specified in any such notice shall be a business
day (i) no earlier than the Closing Date (as hereinafter defined), (ii) no
later than ten business days after such notice has been given and (iii) no
earlier than two business days after such notice has been given. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares to be purchased from the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number
of Firm Shares.
The Company hereby agrees not to offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any Preferred
Stock of the Company or any securities convertible into or exercisable or
exchangeable for such Preferred Stock or in any other manner transfer all or a
portion of the economic consequences associated with the ownership of any such
Preferred Stock, except to the Underwriters pursuant to this Agreement, for a
period of ___ days after the date of the Prospectus without the prior written
consent of Donaldson, Lufkin & Jenrette Securities Corporation.
3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the Shares and (ii) initially to offer the Shares upon the terms set
forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 10:00 A.M., New York City time,
on the [third] business day (the "Closing Date") following the date of the
public offering, at such place as you shall designate. The Closing Date and
the location of delivery of and the form of payment for the Firm Shares may be
varied by agreement between you and the Company.
3
<PAGE>
Delivery to the Underwriters of and payment for any
Additional Shares to be purchased by the Underwriters shall be made at such
place as you shall designate at 10:00 A.M., New York City time, on the date
specified in the applicable exercise notice given by you pursuant to Section 2
(an "Option Closing Date"). Any such Option Closing Date and the location of
delivery of and the form of payment for such Additional Shares may be varied
by agreement between you and the Company.
Certificates for the Shares shall be registered in such
names and issued in such denominations as you shall request in writing not
later than two full business days prior to the Closing Date or an Option
Closing Date, as the case may be. Such certificates shall be made available to
you for inspection not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the applicable Option Closing
Date, as the case may be. Certificates in definitive form evidencing the
Shares shall be delivered to you on the Closing Date or the applicable Option
Closing Date, as the case may be, with any transfer taxes thereon duly paid by
the Company, for the respective accounts of the several Underwriters, against
payment of the Purchase Price therefor by certified or official bank checks
payable in immediately available funds to the order of the Company.
5. Agreements of the Company. The Company
agrees with you:
(a) To file the Prospectus in a form approved by you
pursuant to Rule 424 under the Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities.
(b) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act during the period mentioned in paragraph (f) below.
(c) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when any amendment to the
Registration Statement becomes effective, (ii) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
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<PAGE>
qualification of the Shares for offering or sale in any jurisdiction,
or the initiation of any proceeding for such purposes, and (iv) of
the happening of any event during the period referred to in paragraph
(f) below which makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or which requires the
making of any additions to or changes in the Registration Statement
or the Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(d) To furnish to you, without charge, _______ signed copies
of the Registration Statement as first filed with the Commission and
of each amendment to it, including all exhibits and documents
incorporated by reference therein, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it,
without exhibits, and documents incorporated by reference therein as
you may reasonably request.
(e) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to
which you shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to
the Registration Statement or supplement to the Prospectus which may
be necessary or advisable in connection with the distribution of the
Shares by you, and to use its best efforts to cause the same to
become promptly effective.
(f) From time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as
such Underwriter or dealer may reasonably request.
(g) If during the period specified in paragraph (f) any
event shall occur as a result of which, in the opinion of counsel for
the Underwriters it becomes necessary to amend or supplement the
Prospectus in
5
<PAGE>
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply
with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter
or dealers may reasonably request.
(h) Prior to any public offering of the Shares, to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request, to continue
such qualification in effect so long as required for distribution of
the Shares and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification.
(i) To mail and make generally available to its security
holders as soon as reasonably practicable an earnings statement
covering a period of at least twelve months after the effective date
of the Registration Statement (but in no event commencing later than
90 days after such date) which shall satisfy the provisions of
Section 11(a) of the Act, and to advise you in writing when such
statement has been so made available.
(j) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the
end of each fiscal year to the record holders of its Preferred Stock
a financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to
include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated
statement of shareholders' equity as of the end of and for such
fiscal year, together with comparable information as of the end of
and for the preceding year, certified by independent certified public
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<PAGE>
accountants, and (ii) to mail and make generally available as soon as
practicable after the end of each quarterly period (except for the
last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations
and a consolidated statement of cash flows (and similar financial
reports of all unconsolidated subsidiaries, if any) as of the end of
and for such period, and for the period from the beginning of such
year to the close of such quarterly period, together with comparable
information for the corresponding periods of the preceding year.
(k) During the period referred to in paragraph (j), to
furnish to you as soon as available a copy of each report or other
publicly available information of the Company mailed to the holders
of Preferred Stock or filed with the Commission and such other
publicly available information concerning the Company and its
subsidiaries as you may reasonably request.
(l) To pay all costs, expenses, fees and taxes incident to
(i) the preparation, printing, filing and distribution under the Act
of the Registration Statement (including financial statements and
exhibits), each preliminary prospectus and all amendments and
supplements to any of them prior to or during the period specified in
paragraph (f), (ii) the printing and delivery of the Prospectus and
all amendments or supplements to it during the period specified in
paragraph (f), (iii) the printing and delivery of this Agreement, the
Preliminary and Supplemental Blue Sky Memoranda and all other
agreements, memoranda, correspondence and other documents printed and
delivered in connection with the offering of the Shares (including in
each case any disbursements of counsel for the Underwriters relating
to such printing and delivery), (iv) the registration or
qualification of the Shares for offer and sale under the securities
or Blue Sky laws of the several states (including in each case the
fees and disbursements of counsel for the Underwriters relating to
such registration or qualification and memoranda relating thereto),
(v) filings and clearance with the National Association of Securities
Dealers, Inc. in connection with the offering, (vi) the listing of
the Shares on any exchange or the National Association of Securities
Dealers Automated Quotation system ("NASDAQ") National Market System
and (vii) furnishing such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto as may be
requested
7
<PAGE>
for use in connection with the offering or sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold.
[(m) To use its best efforts to maintain the inclusion of
such Preferred Stock in the NASDAQ National Market System (or on a
national securities exchange) for a period of five years after the
effective date of the Registration Statement.]
(n) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement
by the Company prior to the Closing Date or any Option Closing Date,
as the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
(o) The Company will, for so long as any of the Preferred
Stock is outstanding and if, in the reasonable judgment of any
Underwriter, such Underwriter or any of its affiliates (as defined in
the rules and regulations under the Act) is required to deliver a
prospectus in connection with sales of Preferred Stock (i)
periodically amend the Registration Statement so that the information
contained in the Registration Statement complies with the
requirements of Section 10(a) of the Act, (ii) amend the Registration
Statement or supplement the Prospectus when necessary to reflect any
material changes in the information provided therein, (iii) provide
such Underwriter with copies of each amendment or supplement filed
and such other documents, including opinions of counsel and "comfort"
letters, as such Underwriter may reasonably request and (iv) agree to
indemnify such Underwriter and if applicable, contribute to any
amount paid or payable by such Underwriter in a manner substantially
identical to that specified in Section 7 hereof (with appropriate
modifications).
6. Representations and Warranties of the Company. The
Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each part of the Registration Statement,
when such part became effective, did not contain and
8
<PAGE>
each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act and
(iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph (b) do not apply to statements
or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein.
(c) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act, and
none of such documents, when they were filed with the Commission,
contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus, when such documents are filed with the Commission
will conform in all material respects to the requirements of the
Exchange Act, as applicable, and will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act; and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
9
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(e) The Company and each of Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC"), DLJ Capital Corporation, DLJ
Mortgage Capital, Inc. and each of the Company's other "significant
subsidiaries" as such term is defined in Rule 1-02 of Regulation S-X
under the Act (collectively, the "Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole.
(f) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's Subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of
any nature.
(g) The Shares have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by applicable
law).
(i) The authorized capital stock of the Company, including
the Preferred Stock, conforms as to legal matters to the description
thereof contained in the Prospectus.
(j) Neither the Company nor any of its Subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of
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indebtedness or in any other agreement, indenture or instrument
material to the conduct of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries or
their respective property is bound.
(k) The execution, delivery and performance of this
Agreement, compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body (except as such may be required under the Act or state
securities or Blue Sky laws) and will not conflict with or constitute
a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its Subsidiaries or
any agreement, indenture or other instrument to which it or any of
its Subsidiaries is a party or by which it or any of its Subsidiaries
or their respective property is bound, or violate or conflict with
any laws, administrative regulations or rulings or court decrees
applicable to the Company, any of its Subsidiaries or their
respective property.
(l) Except as otherwise set forth or incorporated by
reference in the Prospectus, there are no material legal or
governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any of their respective property
is the subject, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated. No contract or document
of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration
Statement is not so described, filed or incorporated by reference as
required.
(m) Neither the Company nor any of its Subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws,
nor any provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which in each case
might result in any
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material adverse change in the business, prospects, financial
condition or results of operation of the Company and its
Subsidiaries, taken as a whole.
(n) The Company and each of its Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business; the Company and each of its Subsidiaries has fulfilled and
performed all of its material obligations with respect to such
permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder
of any such permit; and, except as described or incorporated by
reference in the Prospectus, such permits contain no restrictions
that are materially burdensome to the Company and its Subsidiaries,
taken as a whole.
(o) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the Company and its Subsidiaries, taken as
a whole.
(p) Except as otherwise set forth or incorporated by
reference in the Prospectus or such as are not material to the
business, prospects, financial condition or results of operation of
the Company and its Subsidiaries, taken as a whole, the Company and
each of its Subsidiaries has good and marketable title, free and
clear of all liens, claims, encumbrances and restrictions except
liens for taxes not yet due and payable, to all property and assets
described in the Registration Statement as being owned by it. All
leases to which the Company or any of its Subsidiaries is a party are
valid and binding and no default has
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occurred or is continuing thereunder, which might result in any
material adverse change in the business, prospects, financial
condition or results of operation of the Company and its Subsidiaries
taken as a whole, and the Company and its Subsidiaries enjoy peaceful
and undisturbed possession under all such leases to which any of them
is a party as lessee with such exceptions as do not materially
interfere with the use made by the Company or such Subsidiary.
(q) The Company and each of its Subsidiaries
maintains reasonably adequate insurance.
(r) KPMG Peat Marwick LLP are independent public accountants
with respect to the Company as required by the Act.
(s) The financial statements, together with related
schedules and notes forming part of or incorporated by reference in
the Registration Statement and the Prospectus (and any amendment or
supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of
the Company and its subsidiaries on the basis stated or incorporated
by reference in the Registration Statement at the respective dates or
for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth or
incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) is, in all
material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records
of the Company and its subsidiaries [and the pro forma financial
information, and the related notes thereto, included or incorporated
by reference in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable requirements of the
Act and Exchange Act, as applicable].
(t) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(u) Except as described or incorporated by
reference in the Prospectus, no holder of any security
of the Company has any right to require registration of
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shares of common stock or any other security of the
Company.
(v) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(w) The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(x) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and
all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or any
of its subsidiaries have been paid, other than those being contested
in good faith and for which adequate reserves have been provided.
7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriters
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furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use therein.
(b) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company, such Underwriter shall promptly notify the Company
in writing and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses. Any Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the employment of such counsel shall have been specifically authorized in
writing by the Company, (ii) the Company shall have failed to assume the
defense and employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both such Underwriter or such
controlling person and the Company and such Underwriter or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Company (in which case the Company shall not have the right
to assume the defense of such action on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company shall not,
in connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all such
Underwriters and controlling persons, which firm shall be designated in
writing by Donaldson, Lufkin & Jenrette Securities Corporation and that all
such fees and expenses shall be reimbursed as they are incurred). The Company
shall not be liable for any settlement of any such action effected without its
written consent but if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss or liability by reason of such
settlement. Notwithstanding the immediately preceding sentence, if in any case
where the fees and expenses of counsel are at the expense of the indemnifying
party and an indemnified party shall have requested the indemnifying party to
reimburse the indemnified party for such fees and expenses of counsel as
incurred, such indemnifying party
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<PAGE>
agrees that it shall be liable for any settlement of any action effected
without its written consent if (i) such settlement is entered into more than
ten business days after the receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter
but only with reference to information relating to such Underwriter furnished
in writing by or on behalf of such Underwriter through you expressly for use
in the Registration Statement, the Prospectus or any preliminary prospectus.
In case any action shall be brought against the Company, any of its directors,
any such officer or any person controlling the Company based on the
Registration Statement, the Prospectus or any preliminary prospectus and in
respect of which indemnity may be sought against any Underwriter, the
Underwriter shall have the rights and duties given to the Company (except that
if the Company shall have assumed the defense thereof, such Underwriter shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Underwriter), and the Company, its directors,
any such officers and any person controlling the Company shall have the rights
and duties given to the Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
16
<PAGE>
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received
by the Underwriters, bear to the total price to the public of the Shares, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations
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<PAGE>
to contribute pursuant to this Section 7(d) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder
and not joint.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the
Closing Date.
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act,
and at the Closing Date no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings
for that purpose shall have been commenced or shall be pending before
or contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been
any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(d)(i) Since the date of the latest balance sheet included
or incorporated by reference in the Registration Statement and the
Prospectus, there shall not have been any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, affairs or
business prospects, whether or not arising in the ordinary course of
business, of the Company, (ii) since the date of the latest balance
sheet included or incorporated by reference in the Registration
Statement and the Prospectus there shall not have been any change, or
any development involving a prospective material adverse change, in
the capital stock or in the long-term debt of the Company from that
set forth or incorporated by reference in the Registration Statement
and Prospectus, (iii) the
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<PAGE>
Company and its Subsidiaries shall have no liability or obligation,
direct or contingent, which is material to the Company and its
Subsidiaries, taken as a whole, other than those reflected or
incorporated by reference in the Registration Statement and the
Prospectus and (iv) on the Closing Date you shall have received a
certificate dated the Closing Date, signed by _______________ and
_______________, in their capacities as the _______________ and
_______________ of the Company, confirming the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 8.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you), dated the Closing Date, of Davis Polk &
Wardwell, counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware and has the corporate power and
authority required to carry on its business as it is currently
being conducted and to own, lease and operate its properties;
(ii) the Shares have been duly authorized, and when
issued and delivered to the Underwriters against payment
therefor as provided by this Agreement, will have been
validly issued and will be fully paid and non-assessable,
and the issuance of such Shares is not subject to any
preemptive or similar rights;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, except as rights to indemnity and
contribution thereunder may be limited by applicable law;
(iv) the authorized capital stock of the Company,
including the Preferred Stock, conforms as to legal matters
to the description thereof contained in the Prospectus;
(v) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness
has been issued and no proceedings for that purpose are, to
the knowledge of such counsel, pending before or
contemplated by the Commission;
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<PAGE>
(vi) the statements (A) in the Prospectus under the
captions "_______________", "_______________", "Description
of Debt Securities", "Description of Preferred Stock",
"Description of Capital Stock", "Plan of Distribution" and
"Underwriting", [(B) incorporated by reference in the
Prospectus from Item 3 of Part I of the Company's Annual
Report on Form 10-K for the year ended ________, 199_, (C)
incorporated by reference in the Prospectus from Item 1 of
Part II of the Company's Quarterly Reports on Form 10-Q, if
any, filed since such Annual Report, (D) incorporated by
reference in the Prospectus from Item 5 of the Company's
Current Reports on Form 8-K, if any, filed since such Annual
Report,] and (E) in the Registration Statement in Item 15 of
Part II, insofar as such statements constitute a summary of
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to
such legal matters, documents and proceedings;
(vii) the execution, delivery and performance of this
Agreement by the Company and compliance by the Company with
all the provisions hereof will not, to the best of such
counsel's knowledge based solely upon due inquiry of
responsible officers of the Company, require any consent,
approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental
body (except such as may be required under the Act or state
securities or Blue Sky laws or by the National Association
of Securities Dealers Inc.) except where the failure to
obtain such consents, approvals, authorizations or other
orders would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
(viii) to the best of such counsel's knowledge, based
solely upon due inquiry of responsible officers of the
Company, there is no legal or governmental proceeding
pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective
property is subject which is required to be described in the
Registration Statement or the Prospectus and is not so
described or incorporated by reference, or of any contract
or other document which is required to be described in the
Registration
20
<PAGE>
Statement or the Prospectus or is required to be filed as an
exhibit to the Registration Statement which is not described
or filed or incorporated by reference as required;
(ix) the Company is not an "investment
company" within the meaning of the Investment
Company Act of 1940, as amended;
(x) to the best of such counsel's knowledge, based
solely upon due inquiry of responsible officers of the
Company, no holder of any security of the Company has any
right to require registration of shares of common stock or
any other security of the Company except as disclosed or
incorporated by reference in the Prospectus;
(xi) each document incorporated by reference in the
Registration Statement and the Prospectus (except for the
financial statements included therein as to which such
counsel need express no opinion) complied as to form when
filed with the Commission in all material respects with the
Exchange Act; and
(xii) (1) the Registration Statement and the Prospectus
and any supplement or amendment thereto (except for
financial statements as to which no opinion need be
expressed) comply as to form in all material respects with
the Act, and (2) such counsel believes that (except for
financial statements, as aforesaid and except for the part
of the Registration Statement that constitutes the Forms
T-1) the Registration Statement and the prospectus included
therein at the time the Registration Statement became
effective did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and that the Prospectus, as amended or
supplemented, if applicable (except for financial
statements, as aforesaid) does not contain any untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading.
In giving such opinion with respect to the matters covered
by clauses (xi) and (xii) such counsel may state that their opinion and belief
are based upon their
21
<PAGE>
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated by
reference and review and discussion of the contents thereof, but are without
independent check or verification except as specified.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of the General Counsel for the Company, to the effect that:
(i) each of the Subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the
corporate power and authority required to carry on its
business as it is currently being conducted and to own, lease
and operate its properties;
(ii) the Company and each of its Subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of
property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Company and its Subsidiaries, taken as a
whole;
(iii) all of the outstanding shares of capital stock of,
or other ownership interests in, each of the Subsidiaries
have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned by the Company, free
and clear of any security interest, claim, lien, encumbrance
or adverse interest of any nature;
(iv) to the best of such counsel's knowledge, the
Company is not in violation of its charter or by-laws,
except for such violations that would not have a material
adverse effect on the Company and its Subsidiaries, taken as
a whole;
(v) to the best of such counsel's knowledge, none of
the Subsidiaries is in violation of its respective
certificate of incorporation or by-laws, except for such
violations that would not have a material adverse effect on
the Company and its Subsidiaries, taken as a whole, and
neither the Company nor any of its Subsidiaries is in
default in the performance of any obligation,
22
<PAGE>
agreement or condition contained in any bond, debenture,
note or any other agreement, indenture or instrument
material to the condition of the business of the Company and
its Subsidiaries, taken as a whole, to which the Company or
any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries or any of their respective
properties are bound;
(vi) the execution, delivery and performance by the
Company of this Agreement and compliance by the Company with
all the provisions hereof will not, (A) conflict with or
constitute a breach of any of the terms or provisions of the
charter or by-laws of the Company or any of its
Subsidiaries; (B) violate or conflict with any laws,
administrative regulations or, to the best of such counsel's
knowledge, rulings or court decrees applicable to the
Company or any of its Subsidiaries or their respective
properties except for such violations or conflicts that
would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole; or (C) to the best of
such counsel's knowledge, conflict with or constitute a
breach of any of the terms or provisions of, or a default
under, any agreement, indenture or other instrument material
to the condition of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company or any
of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries or any of their respective
properties are bound;
(vii) to the best of such counsel's knowledge, the
Company and each of its Subsidiaries has such permits,
licenses, franchises and authorizations (collectively,
"permits") of and from, and has made such declarations and
filings with, governmental or regulatory authorities,
including, without limitation, state regulatory
organizations, as are necessary to own, lease and operate
its respective properties and to conduct its business in the
manner described or incorporated by reference in the
Prospectus, except where the failure to obtain such permits
or make such declarations and filings would not have a
material adverse effect on the Company and its Subsidiaries,
taken as a whole; to the best of such counsel's knowledge,
the Company and each of its Subsidiaries has fulfilled and
performed all of its obligations with respect to such
permits,
23
<PAGE>
except where failure to do so would not have a material
adverse effect on the Company and its Subsidiaries, taken as
a whole, and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of
the rights of the holder of any such permit, except where
such revocation, termination or impairment would not have a
material adverse effect on the Company and its Subsidiaries,
taken as a whole, subject, in each case, to such
qualifications as may be set forth or incorporated by
reference in the Prospectus; and, to the best of such
counsel's knowledge, except as described or incorporated by
reference in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company
or any of its Subsidiaries;
(viii) to the best of such counsel's knowledge, all leases
to which the Company or any of its Subsidiaries is a party
are valid and binding and no default has occurred or is
continuing thereunder which might result in any material
adverse change in the business, prospects, financial
condition or results of operation of the Company and its
Subsidiaries, taken as a whole, and the Company and its
Subsidiaries enjoy peaceful and undisturbed possession under
all such leases to which any of them is a party as lessee
with such exceptions as do not materially interfere with the
use made by the Company or such Subsidiary;
(ix) the statements in the Prospectus under the caption
"______________", insofar as such statements constitute a
summary of legal matters referred to therein, fairly present
the information called for with respect to such legal
matters;
(x) each document incorporated by reference in the
Registration Statement and the Prospectus (except for the
financial statements included therein as to which such
counsel need express no opinion) complied as to form when
filed with the Commission in all material respects with the
Exchange Act; and
(xi) (1) the Registration Statement and the Prospectus and
any supplement or amendment thereto (except for financial
statements as to which no
24
<PAGE>
opinion need be expressed) comply as to form in all material
respects with the Act, and (2) such counsel believes that
(except for financial statements, as aforesaid and except
for the part of the Registration Statement that constitutes
the Forms T-1) the Registration Statement and the prospectus
included therein at the time the Registration Statement
became effective did not contain any untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading, and that the Prospectus, as amended
or supplemented, if applicable (except for financial
statements, as aforesaid) does not contain any untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading.
In giving such opinion with respect to the matters covered
by clause (xi) such counsel may state that his opinion and belief are based
upon his participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
(g) You shall have received a letter on and as of the
Closing Date, in form and substance satisfactory to you, from KPMG
Peat Marwick LLC, independent public accountants, with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus and substantially in
the form and substance of the letter delivered to you by KPMG Peat
Marwick LLC on the date of this Agreement.
(h) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the
Company at or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of such Additional
Shares and other matters related to the issuance of such Additional Shares.
25
<PAGE>
9. Effective Date of Agreement and Termination.
This Agreement shall become effective upon the execution of
this Agreement.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any adverse change or
development involving a prospective adverse change in the condition, financial
or otherwise, of the Company or any of its subsidiaries or the earnings,
affairs, or business prospects of the Company or any of its subsidiaries,
whether or not arising in the ordinary course of business, which would, in
your judgment, make it impracticable to market the Shares on the terms and in
the manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market System or limitation on
prices for securities on any such exchange or National Market System, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Company or
any Subsidiary, (v) the declaration of a banking moratorium by either federal
or New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal
affairs which in your opinion has a material adverse effect on the financial
markets in the United States.
If on the Closing Date or on an Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it or
they have agreed to purchase hereunder on such date and the aggregate number
of Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be
26
<PAGE>
obligated severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule I bears to the total number of Firm Shares
which all the non-defaulting Underwriters, as the case may be, have agreed to
purchase, or in such other proportion as you may specify, to purchase the Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares or Additional Shares, as the case may be, which any Underwriter has
agreed to purchase pursuant to Section 2 hereof be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If on the Closing Date or on an Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares, or Additional Shares, as the case may be, and the aggregate number of
Firm Shares or Additional Shares, as the case may be, with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares
to be purchased on such date by all Underwriters and arrangements satisfactory
to you and the Company for purchase of such Shares are not made within 48
hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter and the Company. In any such case
which does not result in termination of this Agreement, either you or the
Company shall have the right to postpone the Closing Date, or the applicable
Option Closing Date, as the case may be, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
10. Miscellaneous. Notices given pursuant to any provision
of this Agreement shall be addressed as follows: (a) if to the Company, to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York 10172,
Attention: Michael A. Boyd, and (b) if to any Underwriter or to you, to you
c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New
York, New York 10172, Attention: Syndicate Department, or in any case to such
other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, its officers
and directors and of the
27
<PAGE>
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of
and payment for the Shares, regardless of (i) any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter or by or on
behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Shares and payment
for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the several Underwriters for all out-of-pocket expenses
(including the fees and disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
28
<PAGE>
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE, INC.
By____________________________
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By__________________________
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SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
Donaldson, Lufkin & Jenrette
Securities Corporation
---------------------
Total
30
Exhibit 1.3
[FORM OF PREFERRED SECURITIES
UNDERWRITING AGREEMENT]
____________ Preferred Securities
DLJ CAPITAL TRUST [_]
Guaranteed by
DONALDSON, LUFKIN & JENRETTE, INC.
UNDERWRITING AGREEMENT
----------------------
__________, 199
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
As representatives of the
several underwriters
named in Schedule I hereto
277 Park Avenue
New York, New York 10172
Dear Sirs:
DLJ Capital Trust [ ] (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ss.3801 et
seq.), proposes to issue and sell shares of its % preferred
trust securities (the "Firm Securities") to the several underwriters named in
Schedule I hereto (the "Underwriters"). The Trust also proposes to issue and
sell to the several Underwriters not more than additional shares of
its % preferred trust securities (the "Additional Securities") if requested
by the Underwriters as provided in Section 2 hereof. The Firm Securities and
the Additional Securities are herein collectively called the "Securities". The
Securities will be guaranteed by Donaldson, Lufkin & Jenrette, Inc., a
Delaware corporation (the "Company") to the extent set forth in the Prospectus
(as defined herein).
<PAGE>
It is understood that substantially contemporaneously with
the offering and sale of the Firm Securities to the Underwriters contemplated
hereby, (i) the Trust, its trustees (the "Trustees") and the Company shall
take all necessary action to adopt an Amended and Restated Declaration of
Trust in substantially the form of the Form of Amended and Restated
Declaration of Trust attached as Exhibit 4.14 to the Registration Statement
referred to below, (as so amended and restated, the "Declaration") pursuant to
which the Trust shall (x) issue and sell the Securities to the Underwriters
pursuant hereto and (y) issue [ ] shares of its [ ]% common securities [(and
up to an additional [ ] shares of such securities in connection with the
issuance and sale of the Additional Securities)] (the "Common Securities" and,
together with the Securities, the "Trust Securities") to the Company, in each
case with such rights and obligations as shall be set forth in such
Declaration, (ii) the Company and The Bank of New York, as Trustee, shall
enter into an Indenture in substantially the form of the Form of the Junior
Subordinated Debt Indenture attached as Exhibit 4.5 to the Registration
Statement referred to below (as supplemented by the Supplemental Indenture
substantially in the form attached as Exhibit 4.16 to the Registration
Statement referred to below, the "Indenture") providing for the issuance of
$[ ] in aggregate principal amount of the Company's Junior
Subordinated Debentures, Series [ ], due 20[ ] (the "Debentures"), (iii) the
Company shall deposit such Debentures in the Trust in conjunction with the
consummation of the sale of the Securities to the Underwriters contemplated
hereby and (iv) the Company and The Bank of New York, as Guarantee Trustee,
shall enter into a Guarantee Agreement in substantially the form of the Form
of Guarantee with respect to Securities attached as Exhibit 4.18 of the
Registration Statement referred to below (the "Guarantee") for the benefit of
holders from time to time of the Securities.
1. Registration Statement and Prospectus. The Trust and the Company
have prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-3 relating
to, among other things, certain preferred trust securities of DLJ Capital
Trust I, II, III, and IV, certain junior subordinated debt and guarantees of
preferred securities of DLJ Capital Trust I, II, III, and IV by the Company
(collectively, the "Shelf Securities"). The Trust and the Company also have
filed with, or propose to file with, the Commission pursuant to
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<PAGE>
Rule 424 under the Act, a prospectus supplement specifically relating to the
Securities. The registration statement as amended at the date of this
Agreement is hereinafter referred to as the Registration Statement; and the
related prospectus covering the Shelf Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the Basic
Prospectus. The Basic Prospectus as supplemented by the prospectus supplement
specifically relating to the Securities in the form first used to confirm
sales of the Securities is hereinafter referred to as the Prospectus. Any
reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of prospectus (a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the Prospectus,
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any
reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of the
Basic Prospectus, any preliminary prospectus or the Prospectus, as the case
may be, which are deemed to be incorporated by reference therein.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Trust agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Trust at a price per
share of $ (the "Purchase Price"), the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Trust agrees to issue
and sell the Additional Securities and the Underwriters shall have the right
to purchase, severally and not jointly, up to Additional Securities
from the Trust at the Purchase Price. Additional Securities may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Securities. The Underwriters may exercise their right to
purchase Additional Securities in whole or in part from time to time by giving
written notice
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<PAGE>
thereof to the Company within 30 days after the date of this Agreement. You
shall give any such notice on behalf of the Underwriters and such notice shall
specify the aggregate number of Additional Securities to be purchased pursuant
to such exercise and the date for payment and delivery thereof. The date
specified in any such notice shall be a business day (i) no earlier than the
Closing Date (as hereinafter defined), (ii) no later than ten business days
after such notice has been given and (iii) no earlier than two business days
after such notice has been given. If any Additional Securities are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase
from the Trust the number of Additional Securities (subject to such
adjustments to eliminate fractional shares as you may determine) which bears
the same proportion to the total number of Additional Securities to be
purchased from the Trust as the number of Firm Securities set forth opposite
the name of such Underwriter in Schedule I bears to the total number of Firm
Securities.
In view of the fact that the proceeds of the sale of the Securities
will be used to purchase Debentures the Company agrees to pay as compensation
("Underwriter's Compensation") for the Underwriters' arranging the investment
therein of such proceeds and amount in immediately available funds of $ per
Security purchased hereunder.
The Trust and the Company hereby agree not to offer, sell, contract
to sell, grant any option to purchase, or otherwise dispose of any preferred
trust securities or any securities convertible into or exercisable or
exchangeable for such preferred trust securities or in any other manner
transfer all or a portion of the economic consequences associated with the
ownership of any such preferred trust securities, except to the Underwriters
pursuant to this Agreement, for a period of days after the date of the
Prospectus without the prior written consent of .
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose (i) to make a public offering of their respective
portions of the Securities and (ii) initially to offer the Securities upon the
terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and payment
for the Firm Securities and payment of the related Underwriters' Compensation
shall be made at 10:00 A.M., New York City time, on the [third] business day
(the "Closing Date") following the date of the
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<PAGE>
public offering, at such place as you shall designate. The Closing Date and
the location of delivery of and the form of payment for the Firm Securities
may be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional
Securities to be purchased by the Underwriters and payment of the related
Underwriters' Compensation shall be made at such place as you shall designate
at 10:00 A.M., New York City time, on the date specified in the applicable
exercise notice given by you pursuant to Section 2 (an "Option Closing Date").
Any such Option Closing Date and the location of delivery of and the form of
payment for such Additional Securities may be varied by agreement between you
and the Company.
[Certificates for the Securities shall be registered in such names
and issued in such denominations as you shall request in writing not later
than two full business days prior to the Closing Date or an Option Closing
Date, as the case may be. Such certificates shall be made available to you for
inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date or the applicable Option Closing Date, as the
case may be. Certificates in definitive form evidencing the Securities shall
be delivered to you on the Closing Date or the applicable Option Closing Date,
as the case may be, with any transfer taxes thereon duly paid by the Company,
for the respective accounts of the several Underwriters, against payment of
the Purchase Price therefor by certified or official bank checks payable in
immediately available funds to the order of the Company.]
5. Agreements of the Company. The Company agrees with you:
(a) To file the Prospectus in a form approved by you pursuant
to Rule 424 under the Act not later than the Commission's close of
business on the second Business Day following the date of
determination of the offering price of the Securities.
(b) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act during the period mentioned in paragraph (f) below.
(c) To advise you promptly and, if requested by you, to confirm
such advice in writing, (i) when any amendment to the Registration
Statement becomes
5
<PAGE>
effective, (ii) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, and (iv) of the
happening of any event during the period referred to in paragraph
(f) below which makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or which requires
the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein
not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement,
the Company will make every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
(d) To furnish to you, without charge, signed copies of
the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits and documents
incorporated by reference therein, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it,
without exhibits, and documents incorporated by reference therein as
you may reasonably request.
(e) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes
effective, or to make any amendment or supplement to the Prospectus
of which you shall not previously have been advised or to which you
shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to
the Registration Statement or supplement to the Prospectus which may
be necessary or advisable in connection with the distribution of the
Securities by you, and to use its best efforts to cause the same to
become promptly effective.
(f) From time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the
Prospectus
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<PAGE>
(and of any amendment or supplement to the Prospectus) as such
Underwriter or dealer may reasonably request.
(g) If during the period specified in paragraph (f) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriters it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file
with the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended
or supplemented, will not in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will
comply with law, and to furnish to each Underwriter and to such
dealers as you shall specify, such number of copies thereof as such
Underwriter or dealers may reasonably request.
(h) Prior to any public offering of the Securities, to
cooperate with you and counsel for the Underwriters in connection
with the registration or qualification of the Securities for offer
and sale by the several Underwriters and by dealers under the state
securities or Blue Sky laws of such jurisdictions as you may
request, to continue such qualification in effect so long as
required for distribution of the Securities and to file such
consents to service of process or other documents as may be
necessary in order to effect such registration or qualification.
(i) To mail and make generally available to its security
holders as soon as reasonably practicable an earnings statement
covering a period of at least twelve months after the effective date
of the Registration Statement (but in no event commencing later than
90 days after such date) which shall satisfy the provisions of
Section 11(a) of the Act, and to advise you in writing when such
statement has been so made available.
(j) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the
end of each fiscal year to the record holders of the Securities a
financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such
7
<PAGE>
financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of
cash flows and a consolidated statement of shareholders' equity as
of the end of and for such fiscal year, together with comparable
information as of the end of and for the preceding year, certified
by independent certified public accountants, and (ii) to mail and
make generally available as soon as practicable after the end of
each quarterly period (except for the last quarterly period of each
fiscal year) to such holders, a consolidated balance sheet, a
consolidated statement of operations and a consolidated statement of
cash flows (and similar financial reports of all unconsolidated
subsidiaries, if any) as of the end of and for such period, and for
the period from the beginning of such year to the close of such
quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(k) During the period referred to in paragraph (j), to furnish
to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the security holders
of the Company or filed with the Commission and such other publicly
available information concerning the Company and its subsidiaries as
you may reasonably request.
(l) To pay all costs, expenses, fees and taxes incident to (i)
the preparation, printing, filing and distribution under the Act of
the Registration Statement (including financial statements and
exhibits), each preliminary prospectus and all amendments and
supplements to any of them prior to or during the period specified
in paragraph (f), (ii) the printing and delivery of the Prospectus
and all amendments or supplements to it during the period specified
in paragraph (f), (iii) the printing and delivery of this Agreement,
the Preliminary and Supplemental Blue Sky Memoranda and all other
agreements, memoranda, correspondence and other documents printed
and delivered in connection with the offering of the Securities
(including in each case any disbursements of counsel for the
Underwriters relating to such printing and delivery), (iv) the
registration or qualification of the Securities for offer and sale
under the securities or Blue Sky laws of the several states
(including in each case the fees and disbursements of counsel for
the Underwriters relating to such registration or qualification and
memoranda relating thereto), (v) filings and clearance with the
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<PAGE>
National Association of Securities Dealers, Inc. in connection with
the offering, (vi) the listing of the Securities on any exchange or
the National Association of Securities Dealers Automated Quotation
system ("NASDAQ") National Market System and (vii) furnishing such
copies of the Registration Statement, the Prospectus and all
amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Securities by the
Underwriters or by dealers to whom Securities may be sold.
[(m) To use its best efforts to maintain the inclusion of the
Securities in the NASDAQ National Market System (or on a national
securities exchange) for a period of five years after the effective
date of the Registration Statement.]
(n) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement
by the Company prior to the Closing Date or any Option Closing Date,
as the case may be, and to satisfy all conditions precedent to the
delivery of the Securities.
(o) The Company will, for so long as any of the Securities is
outstanding and if, in the reasonable judgment of any Underwriter,
such Underwriter or any of its affiliates (as defined in the rules
and regulations under the Act) is required to deliver a prospectus
in connection with sales of Securities (i) periodically amend the
Registration Statement so that the information contained in the
Registration Statement complies with the requirements of Section
10(a) of the Act, (ii) amend the Registration Statement or
supplement the Prospectus when necessary to reflect any material
changes in the information provided therein, (iii) provide such
Underwriter with copies of each amendment or supplement filed and
such other documents, including opinions of counsel and "comfort"
letters, as such Underwriter may reasonably request and (iv) agree
to indemnify such Underwriter and if applicable, contribute to any
amount paid or payable by such Underwriter in a manner substantially
identical to that specified in Section 7 hereof (with appropriate
modifications).
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
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<PAGE>
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply
in all material respects with the Act and (iii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents, when they were filed with the Commission, contained an
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission will
conform in all material respects to the requirements of the Exchange
Act, as applicable, and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to
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<PAGE>
Rule 424 under the Act, complied when so filed in all material
respects with the Act; and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(e) The Company and each of Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC"), DLJ Capital Corporation, DLJ
Mortgage Capital, Inc. and each of the Company's other "significant
subsidiaries" as such term is defined in Rule 1-02 of Regulation S-X
under the Act (collectively, the "Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole. All of the outstanding
shares of capital stock of, or other ownership interests in, each of
the Company's Subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable, and are owned by the
Company, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(f) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, is and
will be treated as a "grantor trust" for Federal income tax purposes
under existing law, has the business trust power and authority to
conduct its business as presently conducted and as described in the
Registration Statement and Prospectus, and is not required to be
authorized to do business in any other jurisdiction.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and the Trust and is a valid and binding
agreement of the Company and the Trust enforceable in accordance
with its terms (except as rights to indemnity and contribution
hereunder may be limited by applicable law).
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<PAGE>
(h) As of the Closing Date, the Trust Securities will have been
duly authorized by the Declaration and (x) when the Securities are
issued in accordance with the terms of this Agreement and delivered
to and paid for by the Underwriters and (y) the Common Securities
are issued against payment therefor as provided in the Declaration,
such Trust Securities will be duly and validly issued and (subject
to the terms of the Declaration) will be fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust, not subject to any preemptive or similar rights. Holders of
Trust Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware.
(i) As of the Closing Date, the Declaration will have been duly
authorized, executed and delivered by the Company and the Trustees
and will be a valid and binding obligation of the Company and the
Trustees, enforceable against the Company and the Trustees in
accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(j) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and has been duly authorized,
executed and delivered by the Company and, as of the Closing Date,
assuming due authorization, execution and delivery by the Trustee
thereunder, of the Indenture, the Indenture will be a valid and
binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; the Debentures have been duly authorized and when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to the Trust against payment therefore as
provided in the Prospectus will be entitled to the benefits of the
Indenture and the Indenture and the Debentures will conform in all
respects to statements relating thereto contained in the
Registration Statement and the Prospectus.
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<PAGE>
(k) The Guarantee has been duly qualified under the Trust
Indenture Act of 1939, as amended, and, as of the Closing Date,
assuming due authorization, execution and delivery by the Company
thereunder, of the Guarantee, the Guarantee will be a valid and
binding agreement of the Company, enforceable in accordance with its
terms subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity).
(l) The Securities conform as to legal matters to the
description thereof contained in the Prospectus.
(m) None of the Trust, the Company nor any of the Subsidiaries
is in violation of its respective Declaration, charter or bylaws, as
applicable, or in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any other agreement, indenture
or instrument material to the conduct of the business of the Company
and its Subsidiaries, taken as a whole, to which the Trust, the
Company or any of the Subsidiaries is a party or by which any of
them or their respective property is bound.
(n) The execution, delivery and performance of this Agreement,
the Indenture, the Debentures, the Guarantee and the Declaration and
compliance by the Company and the Trust with all the provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not require any consent,
approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as
such may be required under the Act or state securities or Blue Sky
laws) and will not conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the Declaration,
charter or bylaws, as applicable or any agreement, indenture or
other instrument to which the Trust, the Company or any of the
Subsidiaries is a party or by which any of them or their respective
property is bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees applicable to
the Trust, the Company, any of the Subsidiaries or their respective
property.
(o) Except as otherwise set forth or incorporated by reference
in the Prospectus, there are no material
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legal or governmental proceedings pending to which the Trust, the
Company or any of the Subsidiaries is a party or of which any of
their respective property is the subject, and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated. No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement is not so
described, filed or incorporated by reference as required.
(p) Neither the Company nor any of its Subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws,
nor any provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which in each case
might result in any material adverse change in the business,
prospects, financial condition or results of operation of the
Company and its Subsidiaries, taken as a whole.
(q) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on
the business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of
such review, the Company has reasonably concluded that such
associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
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(r) The Company and each of its Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business; the Company and each of its Subsidiaries has fulfilled and
performed all of its material obligations with respect to such
permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder
of any such permit; and, except as described or incorporated by
reference in the Prospectus, such permits contain no restrictions
that are materially burdensome to the Trust, the Company and the
Subsidiaries, taken as a whole.
(s) Except as otherwise set forth or incorporated by reference
in the Prospectus or such as are not material to the business,
prospects, financial condition or results of operation of the Trust,
the Company and the Subsidiaries, taken as a whole, the Company and
each of the Subsidiaries has good and marketable title, free and
clear of all liens, claims, encumbrances and restrictions except
liens for taxes not yet due and payable, to all property and assets
described in the Registration Statement as being owned by it. All
leases to which the Company or any of the Subsidiaries is a party
are valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change in the
business, prospects, financial condition or results of operation of
the Trust, the Company and the Subsidiaries taken as a whole, and
the Company and the Subsidiaries enjoy peaceful and undisturbed
possession under all such leases to which any of them is a party as
lessee with such exceptions as do not materially interfere with the
use made by the Company or such Subsidiary.
(t) The Company and each of the Subsidiaries maintains
reasonably adequate insurance.
(u) KPMG Peat Marwick LLP are independent public accountants
with respect to the Company as required by the Act.
(v) The financial statements, together with related schedules
and notes forming part of or incorporated by reference in the
Registration Statement
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and the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and its
subsidiaries on the basis stated or incorporated by reference in the
Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data set forth or incorporated by
reference in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) is, in all material respects,
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company and
its subsidiaries [and the pro forma financial information, and the
related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Act and Exchange
Act, as applicable].
(w) Neither the Trust nor the Company is an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(x) Except as described or incorporated by reference in the
Prospectus, no holder of any security of the Company has any right
to require registration of shares of common stock or any other
security of the Company.
(y) The Company and the Trust have complied with all provisions
of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(z) The Company and each of its Subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the
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existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(aa) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and
all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or any
of its subsidiaries have been paid, other than those being contested
in good faith and for which adequate reserves have been provided.
7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Trust and the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriters furnished in writing to the
Company by or on behalf of any Underwriter through you expressly for use
therein.
(b) In case any action shall be brought against any Underwriter or
any person controlling such Underwriter, based upon any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought against
the Company, such Underwriter shall promptly notify the Company in writing and
the Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all
fees and expenses. Any Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the
employment of such counsel shall have been specifically authorized in writing
by the
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Company, (ii) the Company shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the defense of
such action on behalf of such Underwriter or such controlling person, it being
understood, however, that the Company shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all such Underwriters
and controlling persons, which firm shall be designated in writing by
Donaldson, Lufkin & Jenrette Securities Corporation and that all such fees and
expenses shall be reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Underwriter and any such controlling
person from and against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and
an indemnified party shall have requested the indemnifying party to reimburse
the indemnified party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any settlement of any
action effected without its written consent if (i) such settlement is entered
into more than ten business days after the receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the (i) the Trust,
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<PAGE>
the Trustees, its officers who sign the Registration Statement and any person
controlling the Trust within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the Company, its directors, its
officers who sign the Registration Statement and any person controlling the
Company within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, in each such case to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus. In case any action
shall be brought against the Trust, the Trustees, its officers who sign the
Registration Statement or any person controlling the Trust or against the
Company, any of its directors, any such officer or any person controlling the
Company based on the Registration Statement, the Prospectus or any preliminary
prospectus and in respect of which indemnity may be sought against any
Underwriter, the Underwriter shall have the rights and duties given to the
Company (except that if the Company shall have assumed the defense thereof,
such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and the
Trust, the Trustees, its officers who sign the Registration Statement and any
person controlling the Trust, the Company, its directors, any such officers
and any person controlling the Company shall have the rights and duties given
to the Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Trust and the Company on the one
hand and the Underwriters on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Trust, the Company and the Underwriters in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant equitable
considerations. The relative
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<PAGE>
benefits received by the Trust, the Company and the Underwriters shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Trust, and the Company,
and the total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Securities, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Trust, the Company and the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Trust, the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Trust, the Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective number of Securities purchased by each of the
Underwriters hereunder and not joint.
8. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Firm Securities under this Agreement are
subject to the satisfaction of each of the following conditions:
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<PAGE>
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the
Closing Date.
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed
for such filing by the rules and regulations under the Securities
Act, and at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have been any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the
rating accorded to any of the Company's or the Trust's securities or
to any securities of any other DLJ Capital Trust that is organized
in substantially the form of, and for substantially the same purpose
as, the Trust and whose common equity capital is wholly owned by the
Company or any subsidiary, by any "nationally recognized statistical
rating organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(d) (i) Since the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus, there shall not have been any material adverse change,
or any development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings,
affairs or business prospects, whether or not arising in the
ordinary course of business, of the Company, (ii) since the date of
the latest balance sheet included or incorporated by reference in
the Registration Statement and the Prospectus there shall not have
been any change, or any development involving a prospective material
adverse change, in the capital stock or in the long-term debt of the
Company from that set forth or incorporated by reference in the
Registration Statement and Prospectus, (iii) the Trust, the Company
and the Subsidiaries shall have no liability or obligation, direct
or contingent, which is material to the Trust, the Company and the
Subsidiaries, taken as a whole, other than those
21
<PAGE>
reflected or incorporated by reference in the Registration Statement
and the Prospectus and (iv) on the Closing Date you shall have
received a certificate dated the Closing Date, signed by
and , in their capacities as the
and of the Company, confirming the
matters set forth in paragraphs (a), (b), (c) and (d) of this
Section 8.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you), dated the Closing Date, of Davis Polk &
Wardwell, counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware and has the corporate power and authority
required to carry on its business as it is currently being
conducted and to own, lease and operate its properties;
(ii) the Debentures have been duly authorized and, when
executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Trust as set
forth in the Prospectus, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the
Company enforceable against the Company in accordance with
their terms except (a) as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights and remedies generally and (b)
as such enforcement may be limited by general principles of
equity, regardless of whether enforcement is sought in a
proceeding at law or in equity;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, except as rights to indemnity and
contribution thereunder may be limited by applicable law;
(iv) the Indenture and Guarantee have been duly qualified
under the Trust Indenture Act of 1939, as amended, and the
Indenture, Declaration and Guarantee have been duly authorized,
executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the respective
Trustees) are valid and binding
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<PAGE>
agreements of the Company, enforceable in accordance with their
terms except (a) as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights and remedies generally and (b)
as such enforcement may be limited by general principles of
equity, regardless of whether enforcement is sought in a
proceeding at law or in equity;
(v) the Registration Statement has become effective under
the Act, no stop order suspending its effectiveness has been
issued and no proceedings for that purpose are, to the
knowledge of such counsel, pending before or contemplated by
the Commission;
(vi) the statements (A) in the Prospectus under the
captions " ", " ", "Description of the
Junior Subordinated Debt Securities", "Description of the
Preferred Securities Guarantees", "Plan of Distribution" and
"Underwriting", [(B) incorporated by reference in the
Prospectus from Item 3 of Part I of the Company's Annual Report
on Form 10-K for the year ended , 199 , (C)
incorporated by reference in the Prospectus from Item 1 of Part
II of the Company's Quarterly Reports on Form 10-Q, if any,
filed since such Annual Report, (D) incorporated by reference
in the Prospectus from Item 5 of the Company's Current Reports
on Form 8- K, if any, filed since such Annual Report] and (E)
in the Registration Statement in Item 15 of Part II, insofar as
such statements constitute a summary of legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings;
[(vii) such counsel is of the opinion ascribed to it in
the Prospectus under the caption "Taxation";]
(viii) the execution, delivery and performance of this
Agreement by the Company and the Trust and the execution,
delivery and performance of, the Indenture, the Debentures, the
Guarantee and the Declaration by the Company and compliance by
the Trust and the Company with all the provisions hereof and
thereof and the issuance of the Securities will not, to the
best of such
23
<PAGE>
counsel's knowledge based solely upon due inquiry of
responsible officers of the Company, require any consent,
approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except
such as may be required under the Act, the Trust Indenture Act
or state securities or Blue Sky laws or by the National
Association of Securities Dealers Inc.), except where the
failure to obtain such consents, approvals, authorizations or
other orders would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
(ix) to the best of such counsel's knowledge, based solely
upon due inquiry of responsible officers of the Company, there
is no legal or governmental proceeding pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of their respective property is subject which is
required to be described in the Registration Statement or the
Prospectus and is not so described or incorporated by
reference, or of any contract or other document which is
required to be described in the Registration Statement or the
Prospectus or is required to be filed as an exhibit to the
Registration Statement which is not described or filed or
incorporated by reference as required;
(x) neither the Trust nor the Company is an "investment
company" within the meaning of the Investment Company Act of
1940, as amended;
(xi) to the best of such counsel's knowledge, based solely
upon due inquiry of responsible officers of the Company, no
holder of any security of the Company has any right to require
registration of shares of common stock or any other security of
the Company except as disclosed or incorporated by reference in
the Prospectus;
(xii) each document incorporated by reference in the
Registration Statement and the Prospectus (except for the
financial statements included therein as to which such counsel
need express no opinion) complied as to form when filed with
the Commission in all material respects with the Exchange Act;
and
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<PAGE>
(xiii) (1) the Registration Statement and the Prospectus
and any supplement or amendment thereto (except for financial
statements as to which no opinion need be expressed) comply as
to form in all material respects with the Act, and (2) such
counsel believes that (except for financial statements, as
aforesaid and except for the part of the Registration Statement
that constitutes the Forms T-1) the Registration Statement and
the prospectus included therein at the time the Registration
Statement became effective did not contain any untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and that the Prospectus, as amended or
supplemented, if applicable (except for financial statements,
as aforesaid) does not contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving such opinion with respect to the matters covered by
clauses (xii) and (xiii) such counsel may state that their opinion
and belief are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated by reference and
review and discussion of the contents thereof, but are without
independent check or verification except as specified.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of the General Counsel for the Company, to the effect
that:
(i) each of the Subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate
power and authority required to carry on its business as it is
currently being conducted and to own, lease and operate its
properties;
(ii) the Company and each of its Subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property
requires such qualification, except where
25
<PAGE>
the failure to be so qualified would not have a material
adverse effect on the Company and its Subsidiaries, taken as a
whole;
(iii) all of the outstanding shares of capital stock of,
or other ownership interests in, each of the Subsidiaries have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned by the Company, free and clear of
any security interest, claim, lien, encumbrance or adverse
interest of any nature;
(iv) to the best of such counsel's knowledge, the Company
is not in violation of its charter or by-laws, except for such
violations that would not have a material adverse effect on the
Trust, the Company and the Subsidiaries, taken as a whole;
(v) to the best of such counsel's knowledge, none of the
Subsidiaries is in violation of its respective certificate of
incorporation or by-laws, except for such violations that would
not have a material adverse effect on the Trust, the Company
and the Subsidiaries, taken as a whole, and neither the Company
nor any of its Subsidiaries is in default in the performance of
any obligation, agreement or condition contained in any bond,
debenture, note or any other agreement, indenture or instrument
material to the condition of the business of the Trust, the
Company and the Subsidiaries, taken as a whole, to which the
Trust, the Company or any of the Subsidiaries is a party or by
which the Trust, the Company or any of the Subsidiaries or any
of their respective properties are bound;
(vi) the execution, delivery and performance by the
Company and the Trust of this Agreement and of the Indenture,
Debentures, Guarantee and Declaration by the Company and
compliance by the Company and the Trust with all the provisions
hereof and thereof and issuance of the Securities will not, (A)
conflict with or constitute a breach of any of the terms or
provisions of the Declaration, charter or by-laws, as the case
may be, of the Trust, the Company or any of the Subsidiaries;
(B) violate or conflict with any laws, administrative
regulations or, to the best of such counsel's knowledge,
rulings or court decrees applicable to the Trust, the Company
or
26
<PAGE>
any of the Subsidiaries or their respective properties except
for such violations or conflicts that would not have a material
adverse effect on the Trust, the Company and the Subsidiaries,
taken as a whole; or (C) to the best of such counsel's
knowledge, conflict with or constitute a breach of any of the
terms or provisions of, or a default under, any agreement,
indenture or other instrument material to the condition of the
business of the Trust, the Company and the Subsidiaries, taken
as a whole, to which the Trust, the Company or any of the
Subsidiaries is a party or by which the Trust, the Company or
any of the Subsidiaries or any of their respective properties
are bound;
(vii) to the best of such counsel's knowledge, the Trust,
the Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations (collectively,
"permits") of and from, and has made such declarations and
filings with, governmental or regulatory authorities,
including, without limitation, state regulatory organizations,
as are necessary to own, lease and operate its respective
properties and to conduct its business in the manner described
or incorporated by reference in the Prospectus, except where
the failure to obtain such permits or make such declarations
and filings would not have a material adverse effect on the
Trust, the Company and the Subsidiaries, taken as a whole; to
the best of such counsel's knowledge, the Trust, the Company
and each of the Subsidiaries has fulfilled and performed all of
its obligations with respect to such permits, except where
failure to do so would not have a material adverse effect on
the Trust, the Company and the Subsidiaries, taken as a whole,
and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or
results in any other impairment of the rights of the holder of
any such permit, except where such revocation, termination or
impairment would not have a material adverse effect on the
Trust, the Company and the Subsidiaries, taken as a whole,
subject, in each case, to such qualifications as may be set
forth or incorporated by reference in the Prospectus; and, to
the best of such counsel's knowledge, except as described or
incorporated by reference in the Prospectus, such permits
contain no
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<PAGE>
restrictions that are materially burdensome to the Trust, the
Company or any of the Subsidiaries;
(viii) to the best of such counsel's knowledge, all leases
to which the Company or any of its Subsidiaries is a party are
valid and binding and no default has occurred or is continuing
thereunder which might result in any material adverse change in
the business, prospects, financial condition or results of
operation of the Trust, the Company and the Subsidiaries, taken
as a whole, and the Company and its Subsidiaries enjoy peaceful
and undisturbed possession under all such leases to which any
of them is a party as lessee with such exceptions as do not
materially interfere with the use made by the Company or such
Subsidiary;
(ix) the statements in the Prospectus under the caption
" ", insofar as such statements constitute a
summary of legal matters referred to therein, fairly present
the information called for with respect to such legal matters;
(x) each document incorporated by reference in the
Registration Statement and the Prospectus (except for the
financial statements included therein as to which such counsel
need express no opinion) complied as to form when filed with
the Commission in all material respects with the Exchange Act;
and
(xi) (1) the Registration Statement and the Prospectus and
any supplement or amendment thereto (except for financial
statements as to which no opinion need be expressed) comply as
to form in all material respects with the Act, and (2) such
counsel believes that (except for financial statements, as
aforesaid and except for the part of the Registration Statement
that constitutes the Forms T-1) the Registration Statement and
the prospectus included therein at the time the Registration
Statement became effective did not contain any untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and that the Prospectus, as amended or
supplemented, if applicable (except for financial statements,
as aforesaid) does not contain any untrue statement of a
material fact or
28
<PAGE>
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
In giving such opinion with respect to the matters covered by clause
(xi) such counsel may state that his opinion and belief are based upon his
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification except as
specified.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date of Richards, Layton & Finger, special counsel for the Trust, to the
effect that:
(i) the Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act and under the Declaration and the Delaware Act has
the business trust power and authority to conduct its business
as described in the Registration Statement and Prospectus;
(ii) assuming due authorization, execution and delivery of
the Declaration by the Company and the Trustees, the
Declaration is a legal, valid and binding agreement of the
Company and the Trustees, enforceable against the Company and
the Trustees in accordance with its terms, except as (a) the
enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or other similar laws
relating to or affecting the rights and remedies of creditors
generally and (b) principles of equity, including applicable
laws relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law);
(iii) under the Declaration and the Delaware Act, the
execution and delivery of this Agreement by the Trust, and the
performance by the Trust of its obligations hereunder, have
been duly authorized by all business trust action on the part
of the Trust;
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<PAGE>
(iv) the Trust Securities have been duly authorized by the
Declaration and (x) when the Securities are issued in
accordance with the terms of this Agreement and delivered to
and paid for by the Underwriters and (y) the Common Securities
are issued against payment therefor as provided in the
Declaration, such Trust Securities will be duly and validly
issued and, will be fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; the holders of
Trust Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware;
(v) under the Declaration and the Delaware Act, the
issuance of the Trust Securities is not subject to preemptive
rights; and
(vi) the statements in the Prospectus under the caption
"The DLJ Trusts" and "Description of the Preferred Securities
insofar as such statements constitute a summary of legal
matters or documents referred to therein, fairly present the
information called for with respect to such legal matters and
documents.
In rendering such opinion, such counsel may note that holders of Trust
Securities may be obligated, pursuant to the Declaration, to (i) provide
indemnity and security in connection with and pay taxes or other
governmental charges arising from transfers of certificates for Trust
Securities and the issuance of replacement certificates for Trust
Securities, (ii) provide security and indemnity in connection with
requests of or directions to the Property Trustee to exercise its rights
and remedies under the Declaration and (iii) undertake as a party
litigant to pay costs in any suit for the enforcement of any right or
remedy under the Declaration or against the Property Trustee, to the
extent provided in the Declaration. In rendering such opinion such
counsel may also note that the Company, in its capacity as Sponsor and
not in its capacity as a holder, has undertaken certain payment
obligations as set forth in the Declaration.
(h) You shall have received a letter on and as of the Closing
Date, in form and substance satisfactory to you, from KPMG Peat
Marwick LLP, independent public accountants, with respect to the
financial statements
30
<PAGE>
and certain financial information contained in the Registration
Statement and the Prospectus and substantially in the form and
substance of the letter delivered to you by KPMG Peat Marwick LLP on
the date of this Agreement.
(i) The Company and the Trust shall not have failed at or
prior to the Closing Date to perform or comply with any of the
agreements herein contained and required to be performed or
complied with by the Company or the Trust at or prior to the
Closing Date.
The several obligations of the Underwriters to purchase any Additional
Securities hereunder are subject to the delivery to you on the applicable
Option Closing Date of such documents as you may reasonably request with
respect to the good standing of the Company, the due authorization and
issuance of such Additional Securities and other matters related to the
issuance of such Additional Securities.
9. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any adverse change or
development involving a prospective adverse change in the condition, financial
or otherwise, of the Company or any of its subsidiaries or the earnings,
affairs, or business prospects of the Company or any of its subsidiaries,
whether or not arising in the ordinary course of business, which would, in
your judgment, make it impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus, (ii) any outbreak or escalation
of hostilities or other national or international calamity or crisis or change
in economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market System or limitation on
prices for securities on any such exchange or National Market System, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority which in your opinion
31
<PAGE>
materially and adversely affects, or will materially and adversely affect, the
business or operations of the Company or any Subsidiary, (v) the declaration
of a banking moratorium by either federal or New York State authorities or
(vi) the taking of any action by any federal, state or local government or
agency in respect of its monetary or fiscal affairs which in your opinion has
a material adverse effect on the financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Securities or Additional Securities, as the case may be, which it or they
have agreed to purchase hereunder on such date and the aggregate number of
Firm Securities or Additional Securities, as the case may be, which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed
or refused to purchase is not more than one-tenth of the total number of
Securities to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion
which the number of Firm Securities set forth opposite its name in Schedule I
bears to the total number of Firm Securities which all the non-defaulting
Underwriters, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Firm Securities or Additional
Securities, as the case may be, which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase on
such date; provided that in no event shall the number of Firm Securities or
Additional Securities, as the case may be, which any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 9
by an amount in excess of one-ninth of such number of Firm Securities or
Additional Securities, as the case may be, without the written consent of such
Underwriter. If on the Closing Date or on an Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Securities, or Additional Securities, as the case may be, and the aggregate
number of Firm Securities or Additional Securities, as the case may be, with
respect to which such default occurs is more than one-tenth of the aggregate
number of Securities to be purchased on such date by all Underwriters and
arrangements satisfactory to you and the Company for purchase of such
Securities are not made within 48 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
and the Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, or the applicable Option Closing Date, as
32
<PAGE>
the case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Trust, to DLJ Capital
Trust [_], c/o Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York,
New York 10172, Attention: Michael A. Boyd, (b) if to the Company, to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York 10172,
Attention: Michael A. Boyd and (c) if to any Underwriter or to you, to you c/o
Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New
York, New York 10172, Attention: Syndicate Department, or in any case to such
other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, its officers
and directors, of the Trust, the Trustees and its officers and of the several
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and
payment for the Securities, regardless of (i) any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter or by or on
behalf of the Company, the officers or directors of the Company or any
controlling person of the Company or by or on behalf of the Trust, the
Trustees, its officers or any controlling person of the Trust, (ii) acceptance
of the Securities and payment for them hereunder and (iii) termination of this
Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Trust or the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the several Underwriters for all out-of-pocket expenses
(including the fees and disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Trust, the Company,
the Underwriters, any controlling persons referred to herein and their
respective successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have
33
<PAGE>
any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Securities from any of
the several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
34
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Trust, the Company and the several Underwriters.
Very truly yours,
DLJ CAPITAL TRUST [ ]
a Delaware statutory business trust
By: DONALDSON, LUFKIN & JENRETTE, INC.,
as Sponsor
By____________________________
Title:
DONALDSON, LUFKIN & JENRETTE, INC.,
By____________________________
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By__________________________
35
<PAGE>
SCHEDULE I
Number of Firm
Securities
Underwriters to be Purchased
------------ ---------------
Donaldson, Lufkin & Jenrette
Securities Corporation
---------------------
Total
36
EXHIBIT 4.3
-----------
=============================================================================
DONALDSON, LUFKIN & JENRETTE, INC.
AS THE COMPANY
AND
THE BANK OF NEW YORK
AS TRUSTEE
-----------------------------------
SUBORDINATED INDENTURE
DATED AS OF [ ], 1996
-----------------------------------
============================================================================
<PAGE>
TABLE OF CONTENTS*
Page
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions............................................... 1
SECTION 1.2 Other Definitions......................................... 7
SECTION 1.3 Incorporation by Reference of Trust
Indenture Act............................................. 8
SECTION 1.4 Rules of Construction..................................... 8
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating........................................... 9
SECTION 2.2 Execution and Authentication.............................. 9
SECTION 2.3 Amount Unlimited; Issuable in Series...................... 11
SECTION 2.4 Denomination and Date of Securities;
Payments of Interest...................................... 14
SECTION 2.5 Registrar and Paying Agent; Agents Generally.............. 15
SECTION 2.6 Paying Agent to Hold Money in Trust....................... 16
SECTION 2.7 Transfer and Exchange..................................... 17
SECTION 2.8 Replacement Securities.................................... 20
SECTION 2.9 Outstanding Securities.................................... 21
SECTION 2.10 Temporary Securities...................................... 22
SECTION 2.11 Cancellation.............................................. 22
SECTION 2.12 CUSIP Numbers............................................. 22
SECTION 2.13 Defaulted Interest........................................ 23
SECTION 2.14 Series May Include Tranches............................... 23
SECTION 2.15 Computation of Interest................................... 24
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article.................................. 24
- --------------------
*Note: The Table of Contents shall not for any purposes be deemed to
be a part of the Indenture.
i
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PAGE
----
SECTION 3.2 Notice of Redemption; Partial Redemptions................. 24
SECTION 3.3 Payment of Securities Called for Redemption............... 26
SECTION 3.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption.................. 27
SECTION 3.5 Mandatory and Optional Sinking Funds...................... 28
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities..................................... 31
SECTION 4.2 Maintenance of Office or Agency........................... 32
SECTION 4.3 Certificate to Trustee.................................... 33
SECTION 4.4 Reports by the Company.................................... 33
SECTION 4.5 Calculation of Original Issue Discount.................... 33
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc............................... 34
SECTION 5.2 Successor Substituted..................................... 34
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default......................................... 35
SECTION 6.2 Acceleration.............................................. 37
SECTION 6.3 Other Remedies............................................ 39
SECTION 6.4 Waiver of Past Defaults................................... 40
SECTION 6.5 Control by Majority....................................... 40
SECTION 6.6 Limitation on Suits....................................... 41
SECTION 6.7 Rights of Holders to Receive Payment...................... 41
SECTION 6.8 Collection Suit by Trustee................................ 41
SECTION 6.9 Trustee May File Proofs of Claim.......................... 42
SECTION 6.10 Application of Proceeds................................... 42
SECTION 6.11 Restoration of Rights and Remedies........................ 44
SECTION 6.12 Undertaking for Costs..................................... 44
ii
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PAGE
----
SECTION 6.13 Rights and Remedies Cumulative............................ 44
SECTION 6.14 Delay or Omission Not Waiver.............................. 44
ARTICLE 7
TRUSTEE
SECTION 7.1 General................................................... 45
SECTION 7.2 Certain Rights of Trustee................................. 45
SECTION 7.3 Individual Rights of Trustee.............................. 47
SECTION 7.4 Trustee's Disclaimer...................................... 47
SECTION 7.5 Notice of Default......................................... 48
SECTION 7.6 Reports by Trustee to Holders............................. 48
SECTION 7.7 Compensation and Indemnity................................ 48
SECTION 7.8 Replacement of Trustee.................................... 49
SECTION 7.9 Successor Trustee by Merger, Etc.......................... 51
SECTION 7.10 Eligibility............................................... 51
SECTION 7.11 Money Held in Trust....................................... 51
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment..................... 51
SECTION 8.2 Defeasance................................................ 53
SECTION 8.3 Covenant Defeasance....................................... 54
SECTION 8.4 Application of Trust Money................................ 55
SECTION 8.5 Repayment to Company...................................... 55
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders................................ 56
SECTION 9.2 With Consent of Holders................................... 57
SECTION 9.3 Revocation and Effect of Consent.......................... 58
SECTION 9.4 Notation on or Exchange of Securities..................... 59
SECTION 9.5 Trustee to Sign Amendments, Etc........................... 59
SECTION 9.6 Conformity with Trust Indenture Act....................... 60
iii
<PAGE>
PAGE
----
ARTICLE 10
SUBORDINATION
SECTION 10.1 Securities Subordinated to Senior Indebtedness............ 60
SECTION 10.2 No Payment on Securities in Certain Circumstances......... 61
SECTION 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization
of Company................................................ 63
SECTION 10.4 Securityholders to be Subrogated to Rights of Holders of
Senior Indebtedness....................................... 64
SECTION 10.5 Obligations of the Company Unconditional.................. 65
SECTION 10.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice......................................... 66
SECTION 10.7 Application by Trustee of Assets Deposited with It........ 66
SECTION 10.8 Subordination Rights Not Impaired by Acts or Omissions of
the Company, the Trustee or Holders of Senior
Indebtedness.............................................. 67
SECTION 10.9 Securityholders Authorize Trustee to Effectuate
Subordination of Securities............................... 68
SECTION 10.10 Right of Trustee to Hold Senior Indebtedness.............. 68
SECTION 10.11 Article Ten Not to Prevent Events of Default.............. 68
SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.............................................. 69
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act of 1939............................... 69
SECTION 11.2 Notices................................................... 69
SECTION 11.3 Certificate and Opinion as to Conditions Precedent........ 70
iv
<PAGE>
SECTION 11.4 Statements Required in Certificate or Opinion ............ 71
SECTION 11.5 Evidence of Ownership..................................... 71
SECTION 11.6 Rules by Trustee, Paying Agent or Registrar............... 72
SECTION 11.7 Payment Date Other Than a Business Day.................... 72
SECTION 11.8 Governing Law............................................. 73
SECTION 11.9 No Adverse Interpretation of Other Agreements............ 73
SECTION 11.10 Successors................................................ 73
SECTION 11.11 Duplicate Originals....................................... 73
SECTION 11.12 Separability.............................................. 73
SECTION 11.13 Table of Contents, Headings, Etc.......................... 73
SECTION 11.14 Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability............... 73
SECTION 11.15 Judgment Currency......................................... 74
SIGNATURES
v
<PAGE>
SUBORDINATED INDENTURE, dated as of [ ], 1996, between Donaldson,
Lufkin & Jenrette, Inc., a Delaware corporation, as the Company, and The Bank
of New York, a New York banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time
of its debentures, notes or other evidences of indebtedness to be issued in one
or more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration of the Securities, the Company has duly authorized the execution
and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities or of any and all series thereof and of the coupons, if
any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and in the case of London, will, if practicable, be the Financial
Times (London Edition)) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York or
London, as applicable. If it shall be impractical in the opinion of the Trustee
to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other
<PAGE>
notice in lieu thereof which is made or given with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by the
secretary or an assistant secretary of the Company to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
"Business Day" means, with respect to any Security, a day that is not
a day on which banking institutions are authorized or required by law or
regulation to close, in the city (or in any of the cities, if more than one)
unless otherwise specified, in which amounts are payable, as specified in the
form of such Security.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 101 Barclay St., Floor 21W, New York, New York 10286 Attention:
Corporate Trust Trustee Administration.
2
<PAGE>
"Default" means any Event of Default as defined in Section 6.1 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Registered
Global Securities of that series.
"Designated Senior Indebtedness" means any class of Senior
Indebtedness the aggregate principal amount outstanding of which exceeds [$50
million] and which is specifically designated in the instrument evidencing such
Senior Indebtedness or the agreement under which such Senior Indebtedness
arises as "Designated Senior Indebtedness."
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.1
and 2.3.
"Non-U.S. person" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"Officer" means, with respect to the Company, the chairman of the
board of directors, the president, the executive vice president, any senior
vice president, the treasurer or any assistant treasurer, or the secretary or
any assistant secretary.
3
<PAGE>
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president, the
executive vice president or any senior vice president and (ii) by the treasurer
or any assistant treasurer, or the secretary or any assistant secretary,
complying with Section 11.4 and delivered to the Trustee. Each such certificate
shall comply with Section 314 of the Trust Indenture Act and include (except as
otherwise expressly provided in this Indenture) the statements provided in
Section 11.4.
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the
Trustee and complying with Section 11.4. Each such opinion shall comply with
Section 314 of the Trust Indenture Act and include the statements provided in
Section 11.4, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.2.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the
4
<PAGE>
Indenture, including, without limitation, all series and classes of such
preferred or preference stock.
"Principal" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the Security.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.2, and bearing the legend prescribed in Section
2.2.
"Registered Security" means any Security registered on the Security
Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the Trustee,
any vice president, assistant vice president, treasurer, assistant treasurer,
secretary, assistant secretary or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on (a) all indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, (i) for money borrowed by the
Company, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company, (iii) in respect
of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the payment of
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refunding of, and amendments, modifications and supplements to,
any such indebtedness. As used in the preceding sentence, the term
5
<PAGE>
"purchase money indebtedness" means indebtedness evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or
other security interest) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, unless by its terms such indebtedness is
subordinated to other indebtedness of the Company. Notwithstanding anything to
the contrary in this Indenture or the Securities, Senior Indebtedness shall not
include, (i) any indebtedness of the Company which, by its terms or the terms
of the instrument creating or evidencing it, is subordinate in right of payment
to or pari passu with the Securities or (ii) any indebtedness of the Company to
a Subsidiary of the Company.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by
6
<PAGE>
such custodian for the account of the holder of a depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series
are issuable from time to time, on a Security of such series, calculated at the
time of issuance of such series in the case of clause (i) or at the time of
issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or on
such Security, and calculated in accordance with the constant interest method
or such other accepted financial practice as is specified in the terms of such
Security.
SECTION 1.2 Other Definitions. Each of the following terms is defined
in the section set forth opposite such term:
Term Section
---- -------
Authenticating Agent 2.2
cash transaction 7.3
DLJSC 6.1
Dollars 4.2
Event of Default 6.1
Judgment Currency 11.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Payment Blockage Period 10.2(b)
record date 2.4
Registrar 2.5
Required Currency 11.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
prov-
7
<PAGE>
ision is incorpo rated by reference in and made a part of this Indenture. The
following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein. If any provision of this Indenture
limits, qualifies or conflicts with another provision hereof that is required
to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
SECTION 1.4 Rules of Construction. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in the plural
include the singular;
(iii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not be deemed
a limitation, and the use of any such pronouns should be construed to
include, where appropriate, the other pronouns.
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ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each series shall
be substantially in such form or forms (not inconsistent with this Indenture)
as shall be established by or pursuant to one or more Board Resolutions or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage, all as may be determined by
the officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
SECTION 2.2 Execution and Authentication. The chairman of the
board of directors, the president, the executive vice president or any senior
vice president and the treasurer or any assistant treasurer or the secretary or
any assistant secretary shall execute the Securities (other than coupons) for
the Company by facsimile or manual signature in the name and on behalf of the
Company. The seal of the Company, if any, shall be reproduced on the
Securities. If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having
attached thereto appropriate coupons, if any, executed by the Company to the
Trustee for authentication together with the applicable
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documents referred to below in this Section, and the Trustee shall thereupon
authenticate and make available for delivery such Securities to or upon the
written order of the Company. In authenticating any Securities of a series, the
Trustee shall be entitled to receive prior to the first authentication of any
Securities of such series, and (subject to Article 7) shall be fully protected
in relying upon, unless and until such documents have been superseded or
revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant to which the forms and
terms of the Securities of that series were established;
(2) an Officers' Certificate setting forth the form or forms and terms
of the Securities, stating that the form or forms and terms of the
Securities of such series have been, or will be when established in
accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the form or
forms and terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred to
therein, established in compliance with this Indenture and that the
supplemental indenture, to the extent applicable, and Securities have been
duly authorized and, if executed and authenticated in accordance with the
provisions of the Indenture and delivered to and duly paid for by the
purchasers thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors' rights
generally, general principles of equity, and such other matters as shall be
specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Registered Global Securities, then the Company shall execute and the
Trustee shall authenticate and make available for delivery one or more
Registered Global Securities that (i) shall represent
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and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series issued in such form and not yet
canceled, (ii) shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or its custodian or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank junior in right of payment, to the extent provided herein, to
all Senior Indebtedness. There shall be established in or pursuant to a Board
Resolution or one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series (subject to the last sentence of this
Section 2.3),
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture and
any limitation on the ability of the Company to increase such aggregate
principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, or upon redemption of,
other Securities of the series pursuant hereto);
(3) the date or dates on which the Principal of the Securities of the
series is payable (which date or dates may be fixed or extendible);
(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates
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from which such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) on which a record shall
be taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall be
determined;
(5) if other than as provided in Section 4.2, the place or places
where the Principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to
Holders may be published;
(6) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund
or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and
any of the terms and condi tions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities of the
series are denominated, the coin or currency in which payment of the
Principal of or interest on the Securities of the series shall be payable
or if the amount of payments of Principal of and/or interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency other than that in which the Securities of the series
are denominated, the manner in which such amounts shall be determined;
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(11) if payment of the Principal of and interest on the Securities of
the series shall be payable in currency or currencies other than the
currency of the United States, the manner in which any such currency shall
be valued against other currencies in which any other Securities shall be
payable;
(12) whether the Securities of the series or any portion thereof will
be issuable as Registered Securities (and if so, whether such Securities
will be issuable as Registered Global Securities) or Unregistered
Securities (with or without coupons), or any combination of the foregoing,
any restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as
provided herein, the terms upon which Unregistered Securities of any series
may be exchanged for Registered Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by non-U.S. persons
in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(14) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all
Securities of the series), which provisions may be in addition to, in
substitution for, or in modification of (or any combination of the
foregoing) the provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in part
as one or more Registered Global
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Securities, the identity of the Depositary for such Registered Global
Security or Securities;
(18) any other events of default or covenants with respect to the
Securities of the series; and
(19) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or in any
such indenture supplemental hereto and any forms and terms of Securities to be
issued from time to time may be completed and established from time to time
prior to the issuance thereof by procedures described in such Board Resolution
or supplemental indenture.
SECTION 2.4 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers of
the Company executing the same may determine, as evidenced by their execution
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest and shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except
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if and to the extent the Company shall default in the payment of the interest
due on such interest payment date for such series, in which case the provisions
of Section 2.13 shall apply. The term "record date" as used with respect to any
interest payment date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Regis tered Securities of such series established as contemplated by
Section 2.3, or, if no such date is so established, the fifteenth day next
preceding such interest payment date, whether or not such record date is a
Business Day.
SECTION 2.5 Registrar and Paying Agent; Agents Generally. The
Company shall maintain an office or agency where Securities may be presented
for registration, registration of transfer or exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"), which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Registered
Securities and of their registration, transfer and exchange (the "Security
Register"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such. The Company may remove any Agent upon written notice to such Agent
and the Trustee; provided that no such removal shall become effective until (i)
the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company or
any affiliate of the Company may act as Paying Agent or Registrar; provided
that neither the Company nor an affiliate of the Company shall act as Paying
Agent in connection with the defeasance of the Securities or the discharge of
this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying Agent
and Authenticating Agent. If, at any time, the Trustee is not the Registrar,
the Registrar
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shall make available to the Trustee ten days prior to each interest payment
date and at such other times as the Trustee may reasonably request the names
and addresses of the Holders as they appear in the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not later than
10:00 a.m., New York City time, on each due date of any Principal or interest
on any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent
for the payment of Principal of and interest on such Securities and shall
promptly notify the Trustee of any default by the Company in making any such
payment. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed, and the Trustee
may at any time during the continuance of any payment default, upon written
request to a Paying Agent, require such Paying Agent to pay all money held by
it to the Trustee and to account for any funds disbursed. Upon doing so, the
Paying Agent shall have no further liability for the money so paid over to the
Trustee. If the Company or any affiliate of the Company acts as Paying Agent,
it will, on or before each due date of any Principal of or interest on any
Securities, segregate and hold in a separate trust fund for the benefit of the
Holders thereof a sum of money sufficient to pay such Principal or interest so
becoming due until such sum of money shall be paid to such Holders or otherwise
disposed of as provided in this Indenture, and will promptly notify the Trustee
in writing of its action or failure to act as required by this Section.
SECTION 2.7 Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 2.5 and upon payment, if the Company shall so require, of the
charges hereinafter provided. If
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the Securities of any series are issued in both registered and unregistered
form, except as otherwise established pursuant to Section 2.3, at the option of
the Holder thereof, Unregistered Securities of any series may be exchanged for
Registered Securities of such series and tenor having authorized denominations
and an equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise established pursuant to
Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is entitled
to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
The Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
Notwithstanding any other provision of this Section 2.7, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
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the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and make available for delivery Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained in
global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery, Registered Securities of such series and tenor
in any authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.2 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with respect to
any Registered Global Security, the
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Depositary for such Registered Global Security may surrender such Registered
Global Security in exchange in whole or in part for Registered Securities of
the same series and tenor in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and make available for delivery,
without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.7 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities) under
then applicable United States Federal
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income tax laws. The Trustee and any such agent shall be entitled to rely on an
Officers' Certificate or an Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.8 Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security
of such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer if
a Security is replaced. The Company may charge such Holder for its expenses and
the expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing
a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.8 and those Securities described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding unless and until the Trustee and
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the Company receive proof satisfactory to them that the replaced Security is
held by a holder in due course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
A Security does not cease to be outstanding because the Company or one
of its affiliates holds such Security, provided, however, that, in determining
whether the Holders of the requisite principal amount of the outstanding
Securities shall have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities as to which a Responsible Officer of the Trustee has
received written notice to be so owned shall be so disregarded. Any Securities
so owned which are pledged by the Company, or by any affiliate of the Company,
as security for loans or other obligations, otherwise than to another such
affiliate of the Company, shall be deemed to be outstanding, if the pledgee is
entitled pursuant to the terms of its pledge agreement and is free to exercise
in its discretion the right to vote such securities, uncontrolled by the
Company or by any such affiliate.
SECTION 2.10 Temporary Securities. Until definitive Securities of
any series are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities of such series. Temporary Securities of
any series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary
Securities, as evidenced by their execution of such temporary Securities. If
temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities of any series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series and tenor upon surrender of such temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 4.2,
without charge to the Holder. Upon surrender for cancellation of
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any one or more temporary Securities of any series the Company shall execute
and the Trustee shall authenticate and make available for delivery in exchange
therefor a like principal amount of definitive Securities of such series and
tenor and authorized denominations. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 2.11 Cancellation. The Company at any time may deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall deliver such canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation shall
be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
SECTION 2.13 Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established
pursuant to Section 2.3) to the Persons who are Holders on a subsequent special
record date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
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SECTION 2.14 Series May Include Tranches. A series of Securities
may include one or more tranches (each a "tranche") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.2 (other than the fourth paragraph thereof) through 2.4, 2.7, 2.8, 2.10, 3.1
through 3.5, 4.2, 6.1 through 6.14, 8.1 through 8.5 and 9.2, if any series of
Securities includes more than one tranche, all provisions of such sections
applicable to any series of Securities shall be deemed equally applicable to
each tranche of any series of Securities in the same manner as though
originally designated a series unless otherwise provided with respect to such
series or tranche pursuant to Section 2.3. In particular, and without limiting
the scope of the next preceding sentence, any of the provisions of such
sections which provide for or permit action to be taken with respect to a
series of Securities shall also be deemed to provide for and permit such action
to be taken instead only with respect to Securities of one or more tranches
within that series (and such provisions shall be deemed satisfied thereby),
even if no comparable action is taken with respect to Securities in the
remaining tranches of that series.
SECTION 2.15 Computation of Interest. Except as otherwise specified
pursuant to Section 2.3 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
2.3 for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30
days and not more than 60 days prior to the date fixed for redemption to such
Holders of
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Registered Securities of such series at their last addresses as they shall
appear upon the Security Register of the Company. Notice of redemption to the
Holders of Unregistered Securities of any series to be redeemed as a whole or
in part, who have filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing notice
of such redemption, by first class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date fixed for redemption, to such Holders
at such addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Company, the Trustee shall make such information
available to the Company for such purpose). Notice of redemption to all other
Holders of Unregistered Securities of any series to be redeemed as a whole or
in part shall be published in an Authorized Newspaper in The City of New York
and in an Authorized Newspaper in London, in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 days
nor more than 60 days prior to the date fixed for redemption. Any notice which
is mailed or published in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities
and, in the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series and
tenor in principal amount equal to the unredeemed portion thereof will be
issued.
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The notice of redemption of Securities of any series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.6) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to
be redeemed, the Company will deliver to the Trustee at least 10 days prior to
the last date on which notice of redemption may be given to Holders pursuant to
the first paragraph of this Section 3.2 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of such Securities to be redeemed. In case of a
redemption at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such redemption is not prohibited by such
restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of
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the principal amount of such Security which has been or is to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to such
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 7.11 and
8.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit under this Indenture, and the Holders thereof
shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.4
and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after the
date fixed for redemption, the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
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Upon presentation of any Security of any series redeemed in part only,
the Company shall execute and the Trustee shall authenticate and make available
for delivery to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an Officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Company through any optional sinking fund payment. Securities so delivered
or credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
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On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured)
and are continuing and (d) stating whether or not the Company intends to
exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Company intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Company to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.11 to the
Trustee with such Officers' Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officers' Certificate shall be irrevocable and
upon its receipt by the Trustee the Company shall become unconditionally
obligated to make all the cash payments or delivery of Securities therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Company, on or before any such sixtieth day, to deliver
such Officer's Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date,
the irrevocable election of the Company (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such series as provided
in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Company shall so request with respect to
the Securities of any series), such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less
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and the Company makes no such request then it shall be carried over until a sum
in excess of $50,000 (or such lesser sum) is available. The Trustee shall
select, in the manner provided in Section 3.2, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by
the Company) inform the Company of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to
the Trustee at least 60 days prior to the sinking fund payment date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company. The Trustee, in the name
and at the expense of the Company (or the Company, if it shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 3.2 (and
with the effect provided in Section 3.3) for the redemption of Securities of
such series in part at the option of the Company. The amount of any sinking
fund payments not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment for such
series and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
Principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on such Securities or of any
Event of Default except that, where the
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mailing of notice of redemption of any Securities shall theretofore have been
made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Company a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such Default or Event of Default shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the continuance of
such default or Event of Default, be deemed to have been collected under
Article 6 and held for the payment of all such Securities. In case such Event
of Default shall have been waived as provided in Section 6.4 or the Default
cured on or before the sixtieth day preceding the sinking fund payment date in
any year, such moneys shall thereafter be applied on the next succeeding
sinking fund payment date in accordance with this Section to the redemption of
such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation
of such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders
at their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of
any series to the contrary, if the Company and a Holder of any Registered
Security so agree or if expressly provided pursuant to Section 2.3, payments of
interest on, and any portion of the Principal of, such
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Holder's Registered Security (other than interest payable at maturity or on any
redemption or repayment date or the final payment of Principal on such
Security) shall be made by the Paying Agent, upon receipt from the Company of
immediately available funds by 11:00 a.m., New York City time (or such other
time as may be agreed to between the Company and the Paying Agent), directly to
the Holder of such Security (by Federal funds wire transfer or otherwise) if
the Holder has delivered written instructions to the Trustee 15 days prior to
such payment date requesting that such payment will be so made and designating
the bank account to which such payments shall be so made and in the case of
payments of Principal surrenders the same to the Trustee in exchange for a
Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered. The Trustee shall be entitled
to rely on the last instruction delivered by the Holder pursuant to this
Section 4.1 unless a new instruction is delivered 15 days prior to a payment
date. The Company will indemnify and hold each of the Trustee and any Paying
Agent harmless against any loss, liability or expense (including attorneys'
fees) resulting from any act or omission to act on the part of the Company or
any such Holder in connection with any such agreement or from making any
payment in accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the Trustee,
located in the Borough of Manhattan, The City of New York, as such office or
agency of the Company. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the address of the Trustee set forth in Section 11.2.
The Company will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to
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be maintained under the rules of any stock exchange on which the Securities of
any series are listed) where the Unregistered Securities, if any, of each
series and coupons, if any, appertaining thereto may be presented for payment.
No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the
Company within the United States nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("Dollars") at each agency
maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Company maintained in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 4.3 Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end
of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 11.4)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.4 Reports by the Company. The Company covenants to file
with the Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the
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information, documents and other reports which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.5 Calculation of Original Issue Discount. The Company
shall file with the Trustee promptly at the end of each calendar year a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Securities as of the end of such
year.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or merger
with or into a Subsidiary or a sale, conveyance, transfer, lease or other
disposition to a Subsidiary) or permit any Person to merge with or into the
Company unless:
(i) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or that acquired or leased such property and
assets of the Company shall be a corporation organized and validly existing
under the laws of the United States of America or any jurisdiction thereof
and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company on all of
the Securities and under this Indenture and the Company shall have
delivered to the Trustee an Opinion of Counsel stating that such
consolidation, merger or transfer and such supplemental indenture complies
with this provision and that all conditions precedent provided for herein
relating to such transaction have been complied with and that such
supplemental indenture constitutes the legal, valid and binding obligation
of
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the Company or such successor enforceable against such entity in accordance
with its terms, subject to customary exceptions; and
(ii) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that immediately after giving effect to such
transaction, no Default shall have occurred and be continuing and an
Opinion of Counsel as to the matters set forth in Section 5.1(i).
SECTION 5.2 Successor Substituted. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.1 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default" shall occur
with respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part of the
Principal of any Security of such series when the same becomes due and
payable at maturity, upon acceleration, redemption or mandatory repurchase,
including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any
Security of such series when the same becomes due and payable, and such
default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such
default or breach continues for a period of 60 days after written notice
thereof has been given to the Company by the Trustee or to the Company and
the Trustee by the Holders of 25% or more in aggregate
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principal amount of the Securities of all series affected thereby;
(d) an involuntary case or other proceeding shall be commenced against
the Company or Donaldson, Lufkin & Jenrette Securities Corporation
("DLJSC") with respect to the Company or DLJSC or their respective debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of the Company or DLJSC or for any
substantial part of the property and assets of the Company or DLJSC, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Company or DLJSC under any bankruptcy, insolvency or other
similar law now or hereafter in effect;
(e) the Company or DLJSC (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary
case under any such law, (B) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or DLJSC or for all or
substantially all of the property and assets of the Company or DLJSC or (C)
effects any general assignment for the benefit of creditors;
(f) an event of default, as defined in any one or more indentures or
instruments evidencing or under which the Company has at the date of this
Indenture or shall hereafter have outstanding an aggregate of at least
$25,000,000 aggregate principal amount of indebtedness for borrowed money,
shall happen and be continuing and such indebtedness shall have been
accelerated so that the same shall be or become due and payable prior to
the date on which the same would otherwise have become due and payable, and
such acceleration shall not be rescinded or annulled within ten days after
notice thereof shall have been given to the Company by the Trustee (if such
event be known to it), or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Securities at the time
outstanding; provided that if such event of default under such indentures
or instruments shall be remedied or cured by the Company or waived by the
holders of such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured
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or waived without further action upon the part of either the Trustee or any
of the Securityholders, and provided further, however, that the Trustee
shall not be charged with knowledge of any such default unless written
notice thereof shall have been given to the Trustee by the Company, by the
holder or an agent of the holder of any such indebtedness, by the trustee
then acting under any indenture or other instrument under which such
default shall have occurred, or by the Holders of not less than 25% in the
aggregate principal amount of the Securities at the time outstanding;
(g) failure by the Company to make any payment at maturity, including
any applicable grace period, in respect of at least $25,000,000 aggregate
principal amount of indebtedness for borrowed money and such failure shall
have continued for a period of ten days after notice thereof shall have
been given to the Company by the Trustee (if such event be known to it), or
to the Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding; provided that
if such failure shall be remedied or cured by the Company or waived by the
holders of such indebtedness, then the Event of Default under this
Indenture by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of either
the Trustee or any of the Securityholders; or
(h) any other Event of Default established pursuant to Section 2.3
with respect to the Securities of such series occurs.
SECTION 6.2 Acceleration. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.1 with respect to the Securities of any series
then outstanding occurs and is continuing, then, and in each and every such
case, except for any series of Securities the Principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a separate
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series
established pursuant to Section 2.3) of all Securities of such affected series,
and the interest accrued thereon, if any, to be due and payable
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immediately, and upon any such declaration the same shall become immediately
due and payable.
(b) If an Event of Default described in clauses (c) or (h) of Section
6.1 with respect to the Securities of one or more but not all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
amount (or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in clauses (d) or (e) of Section
6.1 occurs and is continuing, then the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the Principal as may be
specified in the terms thereof established pursuant to Section 2.3) of all the
Securities then outstanding and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee, to the full extent permitted by applicable law.
(d) If an Event of Default described in clauses (f) or (g) of Section
6.1 or in clauses (c) or (h) of Section 6.1 with respect to the Securities of
all series then outstanding, occurs and is continuing, then, and in each and
every such case, either the Trustee or the Holders of not less than 25% in
aggregate principal amount (or, if the Securities of any outstanding series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of all Securities of any series then outstanding hereunder except for
any series of Securities the Principal of which shall have already become due
and payable (treated as a single class) by notice in writing to the Company
(and to the Trustee if given by Securityholders), may declare the entire
principal amount (or, if the Securities of any such series are Original Issue
Discount Securities, such portion of the principal amount as may be
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specified in the terms of such series established pursuant to Section 2.3) of
all Securities of any series then outstanding, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified in
the terms thereof established pursuant to Section 2.3) of the Securities of any
series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of each such series
(or of all the Securities, as the case may be) and the Principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such Principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series to the
date of such payment or deposit) and such amount as shall be sufficient to
cover all amounts owing the Trustee under Section 7.7, and if any and all
Events of Default under the Indenture, other than the non-payment of the
Principal of Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein, then and in every
such case the Holders of a majority in aggregate principal amount of all the
then outstanding Securities of all such series that have been accelerated
(voting as a single class), by written notice to the Company and to the
Trustee, may waive all defaults with respect to all such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all
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purposes hereunder, to be such portion of the Principal thereof as shall be due
and payable as a result of such acceleration, and payment of such portion of
the Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 6.3 Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections 6.2, 6.7
and 9.2, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the payment
of Principal of or interest on any Security as specified in clauses (a) or (b)
of Section 6.1 or in respect of a covenant or provision of this Indenture which
cannot be modified or amended without the consent of the Holder of each
outstanding Security affected. Upon any such waiver, such Default shall cease
to exist, and any Event of Default with respect to the Securities of such
series arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1 and
7.2(v), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the
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Trustee with respect to the Securities of such series by this Indenture;
provided, that the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability
or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders not joining in the giving of such direction; and provided
further, that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities pursuant
to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice of
a continuing Event of Default with respect to the Securities of such
series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series
have not given the Trustee a direction that is inconsistent with such
written request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder's Security
on or after the respective due dates
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expressed on such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount (or such portion thereof as specified
in the terms established pursuant to Section 2.3 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in such Securities,
and such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.7) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it under Section 7.7. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
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Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section 7.7
applicable to the Securities of such series in respect of which moneys have
been collected;
SECOND: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for Principal and interest,
with interest upon the overdue Principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such Principal and interest or Yield to Maturity,
without preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such Principal and accrued and unpaid interest or Yield to
Maturity; and
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FOURTH: To the payment of the remainder, if any, to the Company or any
other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their former
positions hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.12 Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant (other than the
Trustee) in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not apply
to a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than
10% in principal amount of the outstanding Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.8, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article 6 or
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by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust Indenture
Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any Officers' Certificate, Opinion of Counsel
(or both), resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper person or
persons. The Trustee need not investigate any fact or matter stated in the
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall conform
to Section 11.4. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion.
Subject to Sections 7.1 and 7.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other evidence
in
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respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care;
(iv) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the secretary or an assistant secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities that might be incurred by it in compliance with such
request, order or direction;
(vi) the Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders in accordance with Section 6.5 relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in reliance thereon;
and
(viii) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of
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all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, Officers' Certificate, Opinion of Counsel, Board Resolution,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of
not less than a majority in aggregate principal amount of the Securities of
all series affected then outstanding; provided that, if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b)
and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the
following terms shall mean:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
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SECTION 7.4 Trustee's Disclaimer. The recitals contained herein
and in the Securities (except the Trustee's certificate of authentication)
shall be taken as statements of the Company and not of the Trustee and the
Trustee assumes no responsibility for the correctness of the same. Neither the
Trustee nor any of its agents (i) makes any representation as to the validity
or adequacy of this Indenture or the Securities and (ii) shall be accountable
for the Company's use or application of the proceeds from the Securities.
SECTION 7.5 Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act, unless
such Default shall have been cured or waived before the mailing or publication
of such notice; provided, however, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60 days after
each September 15, beginning with September 15, 1996, the Trustee shall mail to
each Holder as and to the extent provided in Trust Indenture Act Section 313(c)
a brief report dated as of such September 15, if required by Trust Indenture
Act Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company shall pay to
the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited by
any law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents,
counsel and other persons not regularly in its employ.
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The Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss, damage, claim or liability or expense including
taxes (other than taxes based on the income of the Trustee) incurred by it
without negligence or bad faith on its part arising out of or in connection
with the acceptance or administration of this Indenture and the Securities or
the issuance of the Securities or a series thereof or the trusts hereunder and
the performance of its duties under this Indenture and the Securities,
including the costs and expenses of defending itself against or investigating
any claim or liability and of complying with any process served upon it or any
of its officers in connection with the exercise or performance of any of its
powers or duties under this Indenture and the Securities.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination of
this Indenture under bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or coupons, and the Securities are hereby
subordinated to such senior claim. If the Trustee renders services and incurs
expenses following an Event of Default under Section 6.1(d) or Section 6.1(e)
hereof, the parties hereto and the Holders by their acceptance of the
Securities hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law.
SECTION 7.8 Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and appointment
of a successor Trustee as Trustee with respect to the Securities of any series
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the
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Company in writing. The Holders of a majority in principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee with
respect to the Securities of such series by so notifying the Trustee in writing
and may appoint a successor Trustee with respect thereto with the consent of
the Company. The Company may remove the Trustee as Trustee with respect to the
Securities of any series if: (i) the Trustee is no longer eligible under
Section 7.10 of this Indenture; (ii) the Trustee is adjudged a bankrupt or
insolvent; (iii) a receiver or other public officer takes charge of the Trustee
or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by
the next succeeding paragraph of this Section 7.8 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 7.7, (i) the retiring Trustee shall
transfer all property held by it as Trustee in respect of the Securities of
such series to the successor Trustee, (ii) the resignation or removal of the
retiring Trustee in respect of the Securities of such series shall become
effective and (iii) the successor Trustee shall have all the rights, powers and
duties of the Trustee in respect of the Securities of such series under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
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The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee in respect of the Securities of such series to all
Holders of Securities of such series. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein; provided that such successor Trustee shall be otherwise qualified and
eligible under this Article 7.
SECTION 7.10 Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except for
money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.1, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost
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or wrongfully taken Securities of such series that have been replaced or
Securities of such series that are paid pursuant to Section 4.1 or
Securities of such series for whose payment money or securities have
theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 8.5) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B) the
Company irrevocably deposits in trust with the Trustee, as trust funds
solely for the benefit of the Holders of such Securities for that purpose,
money or U.S. Government Obligations or a combination thereof sufficient
(unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without consideration of
any reinvestment, to pay the Principal of and interest on the Securities of
such series to maturity or redemption, as the case may be, and to pay all
other sums payable by it hereunder, and (C) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture with respect to the Securities
of such series have been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Section 7.7 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.2 through 2.12, 4.2, 7.7, 7.8 and 8.5 in respect of
the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.7 and 8.5 in respect of the Securities of such series shall survive.
After any such irrevocable deposit, the Trustee upon request shall acknowledge
in writing the discharge of the Company's obligations under the Securities of
such series and this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
SECTION 8.2 Defeasance. Except as provided below, the Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the
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Securities of any series and the provisions of this Indenture will no longer be
in effect with respect to the Securities of such series (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same); provided that the following conditions shall have been satisfied:
(A) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest on the Securities of
such series, money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof payable
by the Trustee, to pay and discharge the Principal of and accrued interest
on the outstanding Securities of such series to maturity or earlier
redemption (irrevocably provided for under arrangements satisfactory to the
Trustee), as the case may be;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound;
(C) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(D) the Company shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result
of the Company's exercise of its option under this Section 8.2 and will be
subject to federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit and
defeasance had not occurred or (y) an Opinion of Counsel to the same effect
as the ruling described in clause (x) above and (2) an Opinion of Counsel
to the effect that the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens under
the UCC; and
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(E) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 8.2 of the Securities of such series have been complied with.
The Company's obligations in Sections 2.2 through 2.12, 4.2, 7.7, 7.8
and 8.5 with respect to the Securities of such series shall survive until such
Securities are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.7 and 8.5 shall survive.
SECTION 8.3 Covenant Defeasance. The Company may omit to comply
with any specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.3 which may by its
terms be defeased pursuant to this Section 8.3, and such omission shall be
deemed not to be an Event of Default under clauses (c) or (h) of Section 6.1,
with respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest, if any, on the
Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee) without consideration of any reinvestment and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and discharge
the Principal of and interest on the outstanding Securities of such series
to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound;
(iii) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
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(iv) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (A) the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens under
the UCC and (B) such Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred; and
(v) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the covenant defeasance
contemplated by this Section 8.3 of the Securities of such series have been
complied with.
SECTION 8.4 Application of Trust Money. Subject to Section 8.5, the
Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case
may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the payment
of Principal of and interest on the Securities of such series; but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.1, 8.2 or 8.3 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of outstanding Securities.
SECTION 8.5 Repayment to Company. Subject to Sections 7.7, 8.1, 8.2
and 8.3, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers' Certificate any money held by them at
any time and not required to make payments hereunder and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them and required to make payments hereunder under this Indenture that remains
unclaimed for two years; provided that the Trustee or such Paying Agent before
being required to make any payment may cause to be published at the expense of
the Company once in an Authorized Newspaper in The City of New York and once in
an Authorized Newspaper in London or mail
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to each Holder entitled to such money at such Holder's address (as set forth in
the Security Register) notice that such money remains unclaimed and that after
a date specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to
such money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities of any series without
notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not materially and
adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted by
Section 2.3;
(6) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose; or
(7) to make any change that does not materially and adversely affect
the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to Sections 6.4 and
6.7, without prior notice to any Holders, the Company and the Trustee may amend
this Indenture and the Securities of any series with the written
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consent of the Holders of a majority in principal amount of the outstanding
Securities of all series affected by such amendment (all such series voting as
one class), and the Holders of a majority in principal amount of the
outstanding Securities of all series affected thereby (all such series voting
as one class) by written notice to the Trustee may waive future compliance by
the Company with any provision of this Indenture or the Securities of such
series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(i) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security,
or reduce the Principal thereof or the rate of interest thereon (including
any amount in respect of original issue discount), or any premium payable
with respect thereto, or adversely affect the rights of such Holder under
any mandatory redemption or repurchase provision or any right of redemption
or repurchase at the option of such Holder, or reduce the amount of the
Principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section
6.2 or the amount thereof provable in bankruptcy, or change any place of
payment where, or the currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required
for any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture;
(iii) waive a Default in the payment of Principal of or interest on
any Security of such Holder; or
(iv) modify any of the provisions of this Section 9.2, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture
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which has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of Holders of
Securities of such series with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the coupons appertaining to such
Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.3 Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the Security of the consenting Holder,
even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to its Security or
portion of its Security. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective. An amendment, supplement or waiver shall become
effective with respect to any Securities affected thereby on receipt by the
Trustee of written consents from the requisite Holders of outstanding
Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of
any series affected entitled to consent to any amendment, supplement or waiver.
If a record date is fixed, then, notwithstanding the immediately preceding
paragraph, those Persons who were such Holders at such record date (or their
duly designated proxies) and only those Persons shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be such Holders after such record
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date. No such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (iv) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (i) through (iv) of Section 9.2, the amendment or waiver
shall bind each such Holder who has consented to it and every subsequent Holder
of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may require
the Holder thereof to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security of
such series thereafter authenticated. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee shall sign such amendment, supplement or
waiver if the same does not adversely affect the rights of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the requirements
of the Trust Indenture Act as then in effect.
ARTICLE 10
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SUBORDINATION
SECTION 10.1 Securities Subordinated to Senior Indebtedness. The
Company, for itself and its successors, and each Holder, by his or her
acceptance of Securities, agrees that the payment of the Principal of, premium,
if any, and interest on the Securities is subordinated, to the extent and in
the manner provided in this Article Ten, to the right of payment in full to all
present and future Senior Indebtedness, and that these subordination provisions
are for the benefit of the holders of Senior Indebtedness.
The provisions of this Article Ten are for the benefit of the holders
of the Senior Indebtedness from time to time (and their successors and assigns)
and shall be enforceable directly by them and their respective Representatives
directly against the Company, the Trustee and the Holders (and their successors
and assigns). The provisions of this Article Ten shall be a continuing
agreement and shall be irrevocable and shall remain in full force and effect
until payment in the full of the Senior Indebtedness in cash or cash
equivalents, and shall constitute a continuing and irrevocable offer to all
Persons who become holders of, or continue to hold, Senior Indebtedness
(whether such Senior Indebtedness was created or acquired before or after the
issuance of the Securities), each of which holders shall be deemed for the
purposes hereof to have acquired Senior Indebtedness in reliance upon the
provisions of this Article Ten. The provision of this Article Ten shall survive
the commencement of any reorganization or other proceedings with respect to the
Company or any other Person and the discharge of any claim in connection with
such reorganization or other proceedings, including, without limitation, the
discharge of any Senior Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are hereby authorized to demand specific performance of the
provisions of this Article Ten at any time when the Company or any Holder shall
have failed to comply with any provision of this Article Ten applicable to it,
and the Company and each Holder hereby irrevocably waives any defense based on
the adequacy of a remedy at law that might be asserted as a bar to the remedy
of specific performance hereof in any action brought therefor by the holders of
the Senior Indebtedness and their respective representatives.
SECTION 10.2 No Payment on Securities in Certain Circumstances.
(a) No payment shall be made by or on behalf of the Company on account of any
obligation or, to
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the extent the subordination thereof is permitted by applicable law, claim in
respect of the Securities, including the Principal of, premium, if any, or
interest on the Securities, or to redeem (or make a deposit in redemption of),
defease (other than payments made by the Trustee pursuant to Article Eight with
respect to a defeasance permitted by this Indenture, including the
subordination provisions herein) or acquire any of the Securities for cash,
property or securities, (i) upon the maturity of the Designated Senior
Indebtedness or any other Senior Indebtedness with an aggregate principal
amount in excess of $1 million by lapse of time, acceleration or otherwise,
unless and until all Principal of, premium, if any, and interest on such Senior
Indebtedness and all other obligations in respect thereof shall first be paid
in full in cash or cash equivalents or such payment is duly provided for, or
unless and until any such maturity by acceleration has been rescinded or waived
or (ii) in the event of default in payment of any Principal of, premium, if
any, or interest on or any other amount payable in respect of the Designated
Senior Indebtedness or any other Senior Indebtedness with an aggregate
principal amount in excess of $1 million when it becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration or
otherwise, unless and until such payment default has been cured or waived or
has otherwise ceased to exist.
(b) Upon the happening of a default (any event that, after notice or
passage of time would be an event of default) or an event of default (any event
that permits the holders of Senior Indebtedness or their representative or
representatives immediately to accelerate its maturity) with respect to any
Senior Indebtedness, other than a default in payment of the Principal of,
premium, if any, or interest on such Senior Indebtedness, upon written notice
of such default or event of default given to the Company and the Trustee by the
holders of a majority of the principal amount outstanding of such Designated
Senior Indebtedness or their representative or at such time as there is no
Designated Senior Indebtedness by the holders of a majority of the principal
amount outstanding of all Senior Indebtedness or their representative or
representatives, or if such default or event of default results from the
acceleration of the Securities, immediately upon such acceleration, then,
unless and until such default or event of default has been cured or waived or
otherwise has ceased to exist, no payment may be made by or on behalf of the
Company with respect to any obligation or claim in respect of the Securities,
including the Principal of, premium, if any, or interest on the Securities or
to redeem (or make a deposit in redemption of), defease or acquire any of the
Securities for cash, property or securities. Notwithstanding the foregoing,
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unless the Senior Indebtedness in respect of which such default or event of
default exists has been declared due and payable in its entirety within 180
days after the date written notice of such default or event of default is
delivered as set forth above or the date of such acceleration, as the case may
be (the "Payment Blockage Period"), and such declaration or acceleration has
not been rescinded, the Company shall be required then to pay all sums not paid
to the Holders of the Securities during the Payment Blockage Period due to the
foregoing prohibitions and to resume all other payments as and when due on the
Securities. Any number of such notices may be given; provided, however, that
(i) during any 360 consecutive days, only one Payment Blockage Period shall
commence and (ii) any such default or event of default that existed upon the
commencement of a Payment Blockage Period may not be the basis for the
commencement of any other Payment Blockage Period, unless such default or event
of default shall have been cured or waived for a period of not less than 90
consecutive days.
(c) In the event that, notwithstanding the foregoing provisions of
this Section 10.2, any payment or distribution of assets of the Company from
any source whether in cash, property or securities, shall be received by the
Trustee or the Holders on account of any obligation or claim in respect of the
Securities at a time when such payment or distribution is prohibited by the
foregoing provisions, such payment or distribution shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders of
the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full in
cash or cash equivalents of all such Senior Indebtedness, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
The Company shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any
acceleration under any Senior Indebtedness or under any agreement pursuant to
which Senior Indebtedness may have been issued.
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SECTION 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company. Upon any
distribution of assets of the Company upon any dissolution, winding up, total
or partial liquidation or reorganization or readjustment of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors, or any
other marshaling of the assets and liabilities of the Company or otherwise:
(a) the holders of all Senior Indebtedness would first be entitled to
receive payment in full in cash or cash equivalents (or have such payment duly
provided for) of the Principal, premium, if any, and interest payable in
respect thereof before the Holders would be entitled to receive any payment on
account of the Principal of, premium, if any, and interest on the Securities;
(b) any payment or distribution of assets of the Company of any kind
or character, from any source, whether in cash, property or securities to which
the Holders or the Trustee on behalf of the Holders would be entitled, except
for the subordination provisions of this Article Ten, would be paid by the
liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of Senior Indebtedness remaining unpaid or
unprovided for or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
of such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness held
or represented by each, for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay or provide for
the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source, whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of principal of or interest on the Securities before all Senior
Indebtedness is paid in full in cash or cash equivalents (or such payment is
duly provided for), such payment or distribution (subject to the provision of
Section 10.6 and 10.7) shall be held in trust by the Trustee or such Holders
for the benefit of the holders of the Senior Indebtedness, or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or
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represented by each, to the extent necessary to make payment in full (except as
such payment otherwise shall have been provided for) of all Senior Indebtedness
remaining unpaid after giving effect to all concurrent payments and
distributions and all provisions therefor to the holders of such Senior
Indebtedness, but only to the extent that as to any holder of Senior
Indebtedness, as promptly as practicable following notice from the Trustee to
the holders of Senior Indebtedness that such prohibited payment has been
received by the Trustee or Holder(s), such holder (or a representative
therefor) notifies the Trustee of the amounts then due and owing on the Senior
Indebtedness, if any, held by such holder and only the amounts specified in
such notices to the Trustee shall be paid to the holders of Senior
Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
SECTION 10.4 Securityholders to be Subrogated to Rights of Holders
of Senior Indebtedness. Subject to the payment in full in cash or cash
equivalents of all Senior Indebtedness (or provision made for its payment), the
Holders of Securities shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of assets of the
Company applicable to the Senior Indebtedness until all amounts owing on the
Securities shall be paid in full, in cash or cash equivalents and for the
purpose of such subrogation no such payments or distributions to the holders of
Senior Indebtedness by or on behalf of the Company, or by or on behalf of the
Holders by virtue of this Article Ten, which otherwise would have been made to
the Holders shall, as between the Company and the Holders, be deemed to be
payment by the Company to or on account of the Senior Indebtedness, it being
understood that the provisions of this Article Ten are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one
hand, and the holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Ten shall have been
applied, pursuant to the provisions of this Article Ten, to the payment of
amounts payable under Senior Indebtedness, then the Holders shall be entitled
to receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in
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respect of the Senior Indebtedness in full in cash or cash equivalents.
SECTION 10.5 Obligations of the Company Unconditional. Nothing
contained in this Article Ten or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Ten, of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article Ten or elsewhere in
this Indenture or in the Securities, upon any distribution of assets of the
Company referred to in this Article Ten, the Trustee, subject to the provisions
of Sections 8.1, 8.2 and 8.3, and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceeding are pending,
or a certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to the Holders for the purpose of ascertaining
the persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Ten. Nothing in this Section
10.5 shall apply to the claims of, or payments to, the Trustee under or
pursuant to Section 7.7.
Except as otherwise provided in this Section 10.5, in the event of any
inconsistency between the provisions of this Article Ten, on the one part, and
any other provision of this Indenture or any provision of the Securities, on
the other part, the provisions of this Article Ten shall govern.
SECTION 10.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee unless and until a Trust Officer of the Trustee shall have
received, no later than three Business
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Days prior to such payment, written notice thereof from the Company or from one
or more holders of Senior Indebtedness or from any representative therefor and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 8.1 and 8.2, shall be entitled in all respects
conclusively to assume that no such fact exists.
SECTION 10.7 Application by Trustee of Assets Deposited with It.
Money or U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Section 8.1 shall be for the sole benefit of
Securityholders and, to the extent (i) the making of such deposit by the
Company shall not have been in contravention of any term or provision of any
agreement creating or evidencing Senior Indebtedness and (ii) allocated for the
payment of Securities, shall not be subject to the subordination provisions of
this Article Ten. Otherwise, any deposit of assets by the Company with the
Trustee or any Paying Agent (whether or not in trust) for the payment of
Principal of or interest on any Securities shall be subject to the provisions
of Sections 10.1, 10.2, 10.3 and 10.4; provided, that, if prior to the second
Business Day preceding the date on which by the terms of this Indenture any
such assets may become distributable for any purpose (including without
limitation, the payment of either Principal of or interest on any Securities)
the Trustee or such Paying Agent shall not have received with respect to such
assets the written notice provided for in Section 10.6, then the Trustee or
such Paying Agent shall have full power and authority to receive such assets
and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by it on or
after such date.
SECTION 10.8 Subordination Rights Not Impaired by Acts or Omissions
of the Company, the Trustee or Holders of Senior Indebtedness. No act, or
failure to act, of any holder of the Senior Indebtedness or their respective
representatives (including without limitation, any action referred to in this
Section 10.8), the Company, the Trustee, any Holder or any other Person with
the terms, covenants or the provisions of this Article Ten (regardless of any
knowledge thereof which any such holder of the Senior Indebtedness may have or
otherwise be charged with) or any reorganization or similar proceeding with
respect to the Company shall affect the provisions of this Article Ten, the
obligations owed by the Company, the Trustee or any Holder to the holders of
the Senior Indebtedness under this Article Ten or the rights of any holder of
Senior Indebtedness under this Article Ten.
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The Company, the Trustee and each Holder each hereby agrees that the
taking of any of the following actions, with or without notice, by the holders
of the Senior Indebtedness and their respective representatives, will not in
any way affect the provisions of this Article Ten: (i) changing the manner,
place or terms of payment or extending the time of payment of, or renewing or
altering, any agreement or instrument creating, evidencing or governing any
Senior Indebtedness, or consenting to any amendment or change of any terms of
any such agreement or instrument, each as amended from time to time; (ii)
granting extensions or renewals of any such agreement or instrument and any
other indulgence with respect thereto, or effecting any release, compromise or
settlement with respect thereto; (iii) releasing any Person liable in any
manner for the payment or collection of any Senior Indebtedness; (iv)
substituting, exchanging or releasing or otherwise disposing of any item of
security at any time securing any Senior Indebtedness, whether or not the
collateral, if any, received upon the exercise of such power shall be of a
character or value the same as or different from the character or value of the
item of security released; (v) exercising or refraining from exercising any
rights or remedies against the Company or any other Person; and (vi) taking any
other action, or refraining from taking any action, that, in the absence of
authority granted hereby, could have the effect of impairing, invalidating or
rendering unenforceable, in whole or in part, or otherwise affecting, any of
the provisions of this Article Ten.
SECTION 10.9 Securityholders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of the Securities by his or her
acceptance thereof authorizes and expressly directs the Trustee on his or her
behalf to take such action in accordance with the terms of this Indenture as
may be necessary or appropriate to effectuate the subordination provisions
contained in this Article Ten and to protect the rights of the Holders pursuant
to this Indenture, and appoints the Trustee his or her attorney-in-fact for
such purpose, including, in the event of any dissolution, winding up,
liquidation or any reorganization or similar preceding with respect to the
Company (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshalling of assets
and liabilities of the Company) tending towards liquidation of the business and
assets of the Company, the immediate filing of a claim for the unpaid balance
of his or her Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims,
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then the holders of the Senior Indebtedness or their respective representatives
are hereby authorized to have the right to file and are hereby authorized to
file an appropriate claim for and on behalf of the Holders of said Securities.
Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness or their respective representatives to authorize
or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee or the holders
of Senior Indebtedness or their respective representatives to vote in respect
of the claim of any Securityholder in any such proceeding.
SECTION 10.10 Right of Trustee to Hold Senior Indebtedness. The
Trustee shall be entitled to all of the rights set forth in this Article Ten in
respect of any Senior Indebtedness at any time held by it to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
SECTION 10.11 Article Ten Not to Prevent Events of Default. The
failure to make a payment on account of Principal of or interest on the
Securities by reason of any provision of this Article Ten shall not be
construed as preventing the occurrence of a Default or an Event of Default
under Section 6.1 or in any way prevent the Holders from exercising any right
hereunder other than the right to receive payment on the Securities.
SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct, bad faith or negligence) if it shall in
good faith mistakenly pay over or distribute to the Holders of Securities or
the Company or any other person, cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article Ten
or otherwise. Nothing in this Section 10.12 shall affect the obligation of any
other such person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their representative.
ARTICLE 11
MISCELLANEOUS
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SECTION 11.1 Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 11.2 Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission is
confirmed, in each case addressed as follows:
if to the Company:
-----------------
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Facsimile No.: (212) 892-2608
Attention: General Counsel
if to the Trustee:
-----------------
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York and at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act at such addresses as were so furnished to the Trustee and to Holders of
Registered Securities by mailing to such Holders at their addresses as they
shall appear on the Security Register. Notice mailed shall be sufficiently
given if so mailed within the time prescribed. Copies of any such communication
or notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency
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<PAGE>
with respect to other Holders. Except as otherwise provided in this Indenture,
if a notice or communication is mailed in the manner provided in this Section
11.2, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 11.3 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.4 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
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(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 11.5 Evidence of Ownership. The Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of
such Unregistered Security or coupon (whether or not such Unregistered Security
or coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an
Unregistered Security, and the identifying number of such Security and the date
of his holding the same, may be proved by the production of such Security or by
a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person named
in such certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities specified therein. The holding by the person named
in any such certificate of any Unregistered Securities specified therein shall
be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (1) another
certificate bearing a later date issued in respect of the same Securities shall
be produced or (2) the Security specified in such certificate shall be produced
by some other Person, or (3) the Security specified in such certificate shall
have ceased to be outstanding. Subject to Article 7, the fact and date of the
execution of any such instrument and the amount and numbers of Securities held
by the Person so executing such instrument may also be proven in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in any other manner which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered
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Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the Principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 11.6 Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.7 Payment Date Other Than a Business Day. If any date for
payment of Principal or interest on any Security shall not be a Business Day at
any place of payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date, but may be made on
the next succeeding Business Day at any place of payment with the same force
and effect as if made on such date and no interest shall accrue in respect of
such payment for the period from and after such date.
SECTION 11.8 Governing Law. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
SECTION 11.9 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture.
SECTION 11.10 Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 11.11 Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 11.12 Separability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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SECTION 11.13 Table of Contents, Headings, Etc. The Table of Contents
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms and provisions hereof.
SECTION 11.14 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by he holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
SECTION 11.15 Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a Business
Day in The City of New York, then, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in The City of
New York preceding the day on which final unappealable judgment is entered and
(b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the
72
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Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by judgment
being obtained for any other sum due under this Indenture.
73
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
(SEAL) DONALDSON, LUFKIN & JENRETTE, INC.
Attest: as the Company
- ----------------
By:
--------------------------------
Name:
Title:
(SEAL) THE BANK OF NEW YORK,
Attest: as Trustee
- ----------------
By:
--------------------------------
Name:
Title:
74
<PAGE>
STATE OF ________ )
)
COUNTY OF ________ )
BEFORE ME, the undersigned authority, on this [ ] day of
[ ], 1996, personally appeared Anthony F. Daddino, Executive Vice
President and Chief Financial Officer of Donaldson, Lufkin & Jenrette, Inc., a
Delaware corporation, known to me (or proved to me by introduction upon the
oath of a person known to me) to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same as the act of such corporation for the purposes and
consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS [ ] DAY OF [ ], 1996.
(SEAL)
--------------------------------
NOTARY PUBLIC, STATE OF
--------
Print Name:
---------------------
Commission Expires:
-------------
75
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of [ ], 1996,
personally appeared , of The Bank of New York, a New York
banking corporation, known to me (or proved to me by introduction upon the oath
of a person known to me) to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that he/she executed the
same as the act of such trust for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF [ ], 1996.
(SEAL)
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
---------------------
Commission Expires:
-------------
76
EXHIBIT 4.4
-----------
[FORM OF SUBORDINATED DEBT SECURITY]
CUSIP:
No. $
[To be included on Registered Global Securities only: Unless and until it is
exchanged in whole or in part for [Notes] [Debentures] in definitive registered
form, this [Note] [Debenture] may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary.]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
[Sinking Fund Debenture]
Due ___
DONALDSON, LUFKIN & JENRETTE, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, at the office or agency of the Company in
New York, New York, the principal sum of Dollars on _______________,
in the coin or currency of the United States, and to pay interest,
semi-annually on ______ and ______ of each year, commencing __________, on said
principal sum at said office or agency, in like coin or currency, at the rate
per annum specified in the title of this [Note] [Debenture], from the _____ or
the ______, as the case may be, next preceding the date of this [Note]
[Debenture] to which interest has been paid or duly provided for, unless the
date hereof is a date to which interest has been paid or duly provided for, in
which case from the date of this [Note] [Debenture], or unless no interest has
been paid or duly provided for on these [Notes] [Debentures], in which case
from __________, until payment of said principal sum has been made or duly
provided for; provided, that payment of interest may be made at the option of
the Company by check mailed to the address of the person entitled
<PAGE>
thereto as such address shall appear on the Security register or by wire
transfer as provided in the Indenture. Notwithstanding the foregoing, if the
date hereof is after the __th day of _____ or ______ , as the case may be, and
before the following _____ or ______, this [Note] [Debenture] shall bear
interest from such ______ or ______; provided, that if the Company shall
default in the payment of interest due on such _____ or _____, then this [Note]
[Debenture] shall bear interest from the next preceding _____ or _____, to
which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for on these [Notes] [Debentures], from ________. The
interest so payable on any ____ or ____ will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this [Note] [Debenture] is registered at the close of
business on the ____ or ______, as the case may be, next preceding such _____
or ______, whether or not such day is a Business Day.
Reference is made to the further provisions of this [Note] [Debenture]
set forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This [Note] [Debenture] shall not be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, DONALDSON, LUFKIN & JENRETTE, INC. has caused this
instrument to be signed manually or by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed
hereunto or imprinted hereon.
(SEAL) DONALDSON, LUFKIN & JENRETTE, INC.
Attest: By
--------------------------------
- ------------------------
2
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
By
--------------------------------
Authorized Signatory
3
<PAGE>
REVERSE OF [NOTE] [DEBENTURE]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
[Sinking Fund Debenture]
Due ____
This [Note] [Sinking Fund Debenture] is one of a duly authorized issue
of debentures, notes, bonds or other evidences of indebtedness of the Company
(hereinafter called the "Securities") of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture dated as of October
25, 1995 (herein called the "Indenture"), duly executed and delivered by the
Company to The Bank of New York, as Trustee (herein called the "Trustee"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and may otherwise vary
as in the Indenture provided. This [Note] [Debenture] is one of a series
designated as the ___% [Notes] [Sinking Fund Debentures] Due ___ of the
Company, limited in aggregate principal amount to $________.
Interest will be computed on the basis of a 360- day year of twelve
30-day months. The Company shall pay interest on overdue Principal and, to the
extent lawful, on overdue installments of interest at the rate per annum borne
by this [Note] [Debenture]. If a payment date is not a Business Day as defined
in the Indenture at a place of payment, payment may be made at that place on
the next succeeding day that is a Business Day, and no interest shall accrue
for the intervening period.
In case an Event of Default with respect to the ___% [Notes] [Sinking
Fund Debentures] Due ____, as defined in the Indenture, shall have occurred and
be continuing, the Principal hereof and the interest accrued hereon, if any,
may be declared, and upon such declaration shall become, due and payable, in
the manner, with the effect and subject to the conditions provided in the
Indenture.
4
<PAGE>
The Indenture contains provisions which provide that, without prior
notice to any Holders, the Company and the Trustee may amend the Indenture and
the Securities of any series with the written consent of the Holders of a
majority in principal amount of the outstanding Securities of all series
affected by such amendment (all such series voting as one class), and the
Holders of a majority in principal amount of the outstanding Securities of all
series affected thereby (all such series voting as one class) by written notice
to the Trustee may waive future compliance by the Company with any provision of
the Indenture or the Securities of such series; provided that, without the
consent of each Holder of the Securities of each series affected thereby, an
amendment or waiver, including a waiver of past defaults, may not: (i) extend
the stated maturity of the Principal of, or any sinking fund obligation or any
installment of interest on, such Holder's Security, or reduce the principal
amount thereof or the rate of interest thereon (including any amount in respect
of original issue discount), or any premium payable with respect thereto, or
adversely affect the rights of such Holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the option of
such Holder, or reduce the amount of the Principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof or the amount thereof provable in bankruptcy, or change any
place of payment where, or the currency in which, any Security of such series
or any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the due date
therefor; (ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required for
any such supplemental indenture, for any waiver of compliance with certain
provisions of the Indenture or certain Defaults and their consequences provided
for in the Indenture; (iii) waive a Default in the payment of Principal of or
interest on any Security of such Holder; or (iv) modify any of the provisions
of the Indenture governing supplemental indentures with the consent of
Securityholders except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the Holder of each outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable) of the outstanding Securities of all series
affected (voting as a single class), by notice to the
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Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the payment
of Principal of or interest on any Security or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with
respect to the Securities of such series arising therefrom shall be deemed to
have been cured, for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
The Indenture provides that a series of Securities may include one or
more tranches (each a "tranche") of Securities, including Securities issued in
a Periodic Offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any
other provision of the Indenture, subject to certain exceptions, with respect
to sections of the Indenture concerning the execution, authentication and terms
of the Securities, redemption of the Securities, Events of Default of the
Securities, defeasance of the Securities and amendment of the Indenture, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to a board resolution or a supplemental
indenture establishing such series or tranche.
The Company, for itself and its successors, and each Holder, by
accepting the [Notes] [Debentures], agrees that the payment of the principal of
and interest on the [Notes] [Debentures] is subordinated, to the extent and in
the manner provided in the Indenture, to the right of payment in full of all
present and future Senior Indebtedness, and that the subordination provisions
in the Indenture are for the benefit of the holders of Senior Indebtedness.
No reference herein to the Indenture and no provision of this [Note]
[Debenture] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal of and
6
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any premium and interest on this [Note] [Debenture] in the manner, at the
place, at the respective times, at the rate and in the coin or currency herein
prescribed.
The [Notes] [Debentures] are issuable initially only in registered
form without coupons in denominations of [$1,000] or any integral multiple
thereof at the office or agency of the Company in the Borough of Manhattan, The
City of New York, and in the manner and subject to the limitations provided in
the Indenture.
[This [Note] [Debenture] will not be redeemable at the option of the
Company prior to maturity.] [This [Note] [Debenture] is redeemable prior to
maturity ...] [This Debenture is entitled to the benefits of a mandatory
sinking fund as follows ...]
Upon due presentment for registration of transfer of this [Note]
[Debenture] at the office or agency of the Company in the Borough of Manhattan,
The City of New York, a new [Note or Notes] [Debenture or Debentures] of
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
[Note] [Debenture] (whether or not this [Note] [Debenture] shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the Principal hereof and,
subject to the provisions hereof, interest hereon, and for all other purposes,
and neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any indenture supplemental thereto or in any
[Note] [Debenture], or because of any indebtedness evidenced thereby, shall be
had against any incorporator as such, or against any past, present or future
stockholder, officer, director or employee, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being
7
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expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts of laws
principles thereof) shall govern this [Note] [Debenture].
8
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- --------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
- --------------------------------------------------------------------------
the within [Note] [Debenture] and all rights thereunder,
hereby
- --------------------------------------------------------------------------
irrevocably constituting and appointing such person attorney
- --------------------------------------------------------------------------
to transfer such [Note] [Debenture] on the books of the
Issuer, with full
- --------------------------------------------------------------------------
power of substitution in the premises.
Dated:
---------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within [Note] [Debenture] in every
particular without alteration or enlargement or any change whatsoever.
Signature guarantee:
------------------------
9
EXHIBIT 4.5
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
DONALDSON, LUFKIN & JENRETTE, INC.
AND
THE BANK OF NEW YORK
AS TRUSTEE
-----------------------------------------------------------------------
INDENTURE
DATED AS OF AUGUST __, 1996
-----------------------------------------------------------------------
JUNIOR SUBORDINATED DEBENTURES
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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<TABLE>
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TABLE OF CONTENTS*
<CAPTION>
Page
<S> <C>
PARTIES..................................................................................................1
RECITALS:
Purpose of Indenture.....................................................................................1
Compliance with legal requirements.......................................................................1
Purpose of and consideration for Indenture...............................................................1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Certain terms defined; other terms defined in
the Trust Indenture Act of 1939, as amended, or by
reference therein in the Securities Act of 1933, as
amended, to have the meanings
assigned therein..............................................................2
Affiliate................................................................... 2
Authenticating Agent........................................................ 2
Board of Directors.......................................................... 2
Board Resolution............................................................ 2
Business day................................................................ 3
Certificate................................................................. 3
Common Securities........................................................... 3
Company..................................................................... 3
Corporate Trust Office...................................................... 3
Declaration of Trust........................................................ 3
Debenture or Debentures..................................................... 3
Debentureholder............................................................. 3
Default..................................................................... 3
Depositary.................................................................. 4
DLJ Capital Trust........................................................... 4
Event of Default............................................................ 4
Global Debenture............................................................ 4
Governmental Obligations.................................................... 4
Guarantee................................................................... 5
Indenture................................................................... 5
Interest Payment Date....................................................... 5
Officers' Certificate....................................................... 5
Opinion of Counsel.......................................................... 5
Outstanding................................................................. 5
Person...................................................................... 6
- --------
* This Table of Contents does not constitute part of the Indenture and
should not have any bearing upon the interpretation of any of its terms
or provisions.
</TABLE>
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Predecessor Debenture....................................................... 6
Preferred Securities........................................................ 6
Property Trustee............................................................ 6
Responsible Officer......................................................... 6
Security Exchange........................................................... 6
Senior Indebtedness......................................................... 6
Subsidiary.................................................................. 7
Trustee..................................................................... 7
Trust Indenture Act......................................................... 8
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBENTURES
Section 2.01. Designation, terms, amount, authentication
and delivery of Debentures....................................................8
SECTION 2.02. Form of Debentures and Trustee's
certificate..................................................................10
SECTION 2.03. Date and denominations of Debentures and
provisions for payment of principal,
premium and interest.........................................................10
SECTION 2.04. Execution of Debentures......................................................12
SECTION 2.05. Exchange of Debentures.......................................................13
(a) Registration and transfer of
Debentures..................................................13
(b) Debentures to be accompanied by
proper instruments of transfer..............................14
(c) Charges upon exchange, transfer
or registration of Debentures...............................14
(d) Restrictions on transfer or ex-
change at time of redemption................................14
SECTION 2.06. Temporary Debentures.........................................................15
SECTION 2.07. Mutilated, destroyed, lost or stolen
Debentures...................................................................15
SECTION 2.08. Cancellation of surrendered Debentures......................................16
SECTION 2.09. Provisions of Indenture and Debentures
for sole benefit of parties and
Debentureholders.............................................................17
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SECTION 2.10. Appointment of Authenticating Agent..........................................17
SECTION 2.11. Global Debenture.............................................................18
(a) Authentication and Delivery; Legend..........................................18
(b) Transfer of Global Debenture.................................................18
(c) Issuance of Debentures in
definitive form..............................................................18
SECTION 2.12 CUSIP Numbers................................................................19
ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption of Debentures.....................................................19
SECTION 3.02. (a) Notice of redemption................................................19
(b) Selection of Debentures in case
less than all Debentures to be
redeemed............................................................20
SECTION 3.03. (a) When Debentures called for
redemption become due and payable...................................21
(b) Receipt of new Debenture upon
partial payment.....................................................21
SECTION 3.04. Sinking Fund for Debentures..................................................21
SECTION 3.05. Satisfaction of Sinking Fund Payments
with Debentures..............................................................22
SECTION 3.06. Redemption of Debentures for Sinking Fund....................................22
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of principal of (and premium,
if any) and interest on Debentures...........................................23
SECTION 4.02. Maintenance of office or agency for
payment of Debentures, designation of
office or agency for payment, registration,
transfer and exchange of Debentures..........................................23
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SECTION 4.03. (a) Duties of paying agent..............................................23
(b) Company as payment agent............................................24
(c) Holding sums of trust...............................................24
SECTION 4.04 Appointment to fill vacancy in Office of Trustee.........................................24
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. Company to furnish Trustee information as
to names and addresses of
Debentureholders.............................................................25
SECTION 5.02. (a) Trustee to preserve information as to
names and addresses of Debentureholders
received by it in capacity of paying
agent...............................................................25
(b) Trustee may destroy list of
Debentureholders on certain
conditions..........................................................25
(c) Trustee to make information as to
names and addresses of Debentureholders
available to "applicants" or mail
communications to Debentureholders
in certain circumstances............................................25
(d) Procedure if Trustee elects not to
make information available to
applicants..........................................................26
(e) Company and Trustee not accountable
for disclosure of information.......................................27
SECTION 5.03. (a) Annual and other reports to be filed
by Company with Trustee.............................................27
(b) Additional information and reports
to be filed with Trustee and Securities
and Exchange Commission.............................................27
(c) Summaries of information and reports
to be transmitted by Company to
Debentureholders....................................................27
(d) Annual Certificate to be furnished
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to Trustee..........................................................28
SECTION 5.04. (a) Trustee to transmit annual report to
Debentureholders....................................................28
(b) Trustee to transmit certain further
reports to Debentureholders.........................................29
(c) Copies of reports to be filed with
stock exchanges and Securities and
Exchange Commission.................................................29
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Events of Default defined...........................................30
(b) Acceleration of maturity upon Event
of Default..........................................................31
(c) Waiver of default and rescission of
declaration of maturity.............................................31
(d) Restoration of former position and
rights upon curing default..........................................32
(e) Certain rights of holders of
Preferred Securities................................................32
SECTION 6.02. (a) Covenant of Company to pay to Trustee
whole amount due on Debentures on
Default in payment of interest or
principal (and premiums, if any)....................................33
(b) Trustee may recover judgment for
whole amount due on Debentures on
failure of Company to pay...........................................33
(c) Filing of proof of claim by Trustee
in bankruptcy, reorganization or
receivership proceeding.............................................33
(d) Rights of action and of asserting
claims may be enforced by Trustee
without possession of Debentures....................................34
SECTION 6.03. Application of moneys collected by
Trustee......................................................................35
SECTION 6.04. Limitation on suits by holders of
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Debentures...................................................................35
SECTION 6.05. (a) Remedies cumulative.................................................36
(b) Delay or omission in exercise of
rights not waiver of default........................................36
SECTION 6.06. Rights of holders of majority in principal
amount of Debentures to direct Trustee and
to waive defaults............................................................36
SECTION 6.07. Trustee to give notice of defaults known
to it, but may withhold in certain
circumstances................................................................37
SECTION 6.08. Requirements of an undertaking to pay
costs in certain suits under Indenture or
against Trustee..............................................................38
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) Upon Event of Default occurring and
continuing, Trustee shall exercise
powers vested in it, and use same
degree of care and skill in their
exercise, as prudent individual
would use...........................................................39
(b) Trustee not relieved from liability
for negligence or willful misconduct
except as provided in this section..................................39
(1) Prior to Event of Default and
after the curing of all Events
of Default which may have
occurred....................................................39
(i) Trustee not liable except
for performance of duties
specifically set forth.............................39
(ii) In absence of bad faith,
Trustee may conclusively
rely on certificates or
opinions furnished it
hereunder, subject to
duty to examine the same
if specifically required
to be furnished to it..............................39
(2) Trustee not liable for error
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of judgment made in good faith
by responsible officer unless
Trustee negligent ..........................................40
(3) Trustee not liable for action or
non-action in accordance with
direction of holders of majority
in principal amount of
debentures..................................................40
(4) Trustee need not expend own funds
without adequate indemnity..................................40
(5) Provisions of Indenture relating to
Trustee's conduct or liability are
subject to this Article 7...................................40
SECTION 7.02. Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or
presented...........................................................41
(b) Sufficient evidence by certain
instruments provided for............................................41
(c) Trustee may consult with counsel and
act on advice or Opinion of Counsel.................................41
(d) Trustee may require indemnity from
Debentureholders....................................................41
(e) Trustee not liable for actions in
good faith believed to be
authorized..........................................................41
(f) Prior to Event of Default, Trustee
not bound to investigate facts or
matters stated in certificates, etc.,
unless requested in writing by
Debentureholders....................................................41
(g) Trustee may perform duties directly or
through agents or attorneys.........................................42
SECTION 7.03 (a) Trustee not liable for recitals in
Indenture or in Debentures .........................................42
(b) No representations by Trustee as to
to validity of Indenture or of
Debentures..........................................................42
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(c) Trustee not accountable for use of
Debentures or proceeds..............................................42
SECTION 7.04. Trustee, paying agent or Debenture
Registrar may own Debentures.................................................4
SECTION 7.05. Moneys received by Trustee to be held in
trust without interest.......................................................42
SECTION 7.06. (a) Trustee entitled to compensation,
reimbursement and indemnity........................................43
(b) Obligations to Trustee to be secured by
lien prior to Debentures............................................43
SECTION 7.07. Right of Trustee to rely on certificate of
officers of Company where no other
evidence specifically prescribed.............................................43
SECTION 7.08. (a) Trustee acquiring conflicting interest
to eliminate conflict or resign.....................................44
(b) Notice to Debentureholders in case
of failure to comply with
subsection (a)......................................................44
(c) Definition of conflicting interest..................................44
(d) Definition of certain terms.........................................48
(e) Calculation of percentages of
Debentures..........................................................49
(f) Trustee resignation not required under
certain circumstances...............................................51
SECTION 7.09. Requirements for eligibility of Trustee......................................51
SECTION 7.10. (a) Resignation of Trustee and appointment
of successor........................................................52
(b) Removal of Trustee by Company or by
court on Debentureholders'
application.........................................................52
(c) Removal of Trustee by holders of
majority in principal amount of
Debentures..........................................................53
(d) Time when resignation or removal of
Trustee effective...................................................53
(e) One Trustee for each series.........................................53
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SECTION 7.11. (a) Acceptance by successor to Trustee..................................53
(b) Trustee with respect to less than
all series..........................................................54
(c) Company to confirm Trustee's rights.................................55
(d) Successor Trustee to be qualified...................................55
(e) Notice of succession................................................55
SECTION 7.12. Successor to Trustee by merger, consolida-
tion or succession to business...............................................55
SECTION 7.13. (a) Limitations on rights of Trustee
as a creditor to obtain payment of certain
claims within four months prior to default
or during default, or to realize on
property as such
creditor thereafter.................................................55
(b) Certain creditor relationships
excluded............................................................58
(c) Definition of certain terms.........................................59
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01. Evidence of action by Debentureholders.......................................60
SECTION 8.02. Proof of execution of instruments and of
holding of Debentures .......................................................61
SECTION 8.03. Who may be deemed owners of Debentures.......................................61
SECTION 8.04. Debentures owned by Company or controlled
or controlling companies disregarded for
certain purposes ............................................................61
SECTION 8.05. Instruments executed by Debentureholders
bind future holders..........................................................62
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Purposes for which supplemental indenture
may be entered into without consent of
Debentureholders.............................................................62
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SECTION 9.02. Modification of Indenture with consent
of Debentureholders..........................................................64
SECTION 9.03. Effect of supplemental indentures............................................65
SECTION 9.04. Debentures may bear notation of changes
by supplemental indentures...................................................65
SECTION 9.05. Opinion of Counsel...........................................................66
ARTICLE TEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.01. Company May Consolidate, Etc. Only on
Certain Terms................................................................66
SECTION 10.02. Successor Corporation Substituted............................................66
SECTION 10.03. Opinion of Counsel...........................................................67
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01. Satisfaction and discharge of Indenture......................................67
SECTION 11.02. Application by Trustee of Funds Deposited
for Payment of Debentures....................................................70
SECTION 11.03. Application by Trustee of funds deposited
for payment of Debentures....................................................70
SECTION 11.04. Repayment of moneys held by paying agent.....................................70
SECTION 11.05. Repayment of moneys held by Trustee..........................................71
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Incorporators, stockholders, officers and
directors of Company exempt from individual
liability....................................................................71
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors and assigns of Company bound
by Indenture.................................................................72
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SECTION 13.02. Acts of board, committee or officer of
successor company valid......................................................72
SECTION 13.03. Surrender of powers of Company...............................................72
SECTION 13.04. Required notices or demands may be served
by mail......................................................................72
SECTION 13.05. Indenture and Debentures to be construed
in accordance with laws of the State of
New York.....................................................................72
SECTION 13.06. (a) Officers' Certificate and Opinion of
Counsel to be furnished upon appli-
cations or demands by Company...........................................72
(b) Statements to be included in each
certificate or opinion with respect to
compliance with condition or
covenant................................................................73
SECTION 13.07. Payments due on Sundays or holidays..........................................73
SECTION 13.08. Provisions required by Trust Indenture
Act of 1939 to control.......................................................73
SECTION 13.09. Indenture may be executed in counterparts....................................73
SECTION 13.10. Separability of indenture provisions.........................................73
SECTION 13.11. Assignment by Company to subsidiary..........................................74
SECTION 13.12. Holders of Preferred Securities
as third party beneficiaries of
this Indenture; holders of Preferred
Securities may institute legal
proceedings against the Company in
certain cases................................................................74
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01. Agreement to Subordinate.....................................................74
SECTION 14.02. Rights of Senior Indebtedness In the Event
of Insolvency, etc. of the Company...........................................74
SECTION 14.03. Payment Over of Proceeds Received
on Debentures................................................................76
SECTION 14.04. Payments to Debentureholders.................................................78
</TABLE>
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SECTION 14.05. Holders of Debentures Authorize Trustee to
Effectuate Subordination of Debentures.......................................78
SECTION 14.06. Notice to Trustee............................................................78
SECTION 14.07. Trustee's May Hold Senior Indebtedness.......................................79
SECTION 14.08. Applicability of Article Fourteen to
Paying Agents................................................................79
ACCEPTANCE OF TRUST BY TRUSTEE..........................................................................79
SIGNATURES AND SEALS....................................................................................80
</TABLE>
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THIS INDENTURE, is dated as of the ____ day of August, 1996,
between Donaldson, Lufkin & Jenrette, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter sometimes
referred to as the "Company"), and The Bank of New York, a New York banking
corporation, as Trustee (hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has
fully authorized the execution and delivery of this Indenture to provide for
the issuance of unsecured debentures (hereinafter referred to as the
"Debentures"), in an unlimited aggregate principal amount to be issued from
time to time in one or more series in accordance with the terms of this
Indenture, as registered Debentures without coupons, to be authenticated by
the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture;
WHEREAS, the Debentures and the certificate of
authentication to be borne by the Debentures (the "Certificate of
Authentication") are to be substantially in such forms as may be approved by
the Board of Directors (as defined below) or set forth in any indenture
supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the
Debentures issued pursuant hereto, when executed by the Company and
authenticated and delivered by the Trustee in accordance with the terms of
this Indenture, the valid, binding and legal obligations of the Company, and
to constitute a valid indenture and agreement according to its terms, have
been done and performed or will be done and performed prior to the issuance of
such Debentures, and the execution of this Indenture has been and the issuance
hereunder of the Debentures has been or will be prior to issuance in all
respects duly authorized, and the Company, in the exercise of the legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Debentures are and are to be authenticated, issued and delivered, and in
consideration of the premises and of the acquisition and acceptance of the
Debentures by the holders thereof, the Company covenants and agrees with
<PAGE>
the Trustee, for the equal and proportionate benefit (subject to the
provisions of this Indenture) of the respective holders from time to time of
the Debentures, without any discrimination, preference or priority of any one
Debenture over any other by reason of priority in the time of issue, sale or
negotiation thereof, or otherwise, except as provided herein, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. The terms defined in this Section (except as
in this Indenture otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture, any resolution of the Board of
Directors of the Company and of any indenture supplemental hereof shall have
the respective meanings specified in this Section. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939, as
amended, or which are by reference in such Act defined in the Securities Act
of 1933, as amended (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such
terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this instrument.
"Affiliate" of the Company means any company at least a
majority of whose outstanding voting stock shall at the time be owned by the
Company, or by one or more direct or indirect subsidiaries of the Company or
by the Company and one or more direct or indirect subsidiaries of the Company.
For the purposes only of this definition of the term "Affiliate", the term
"voting stock", as applied to the stock of any company, shall mean stock of
any class or classes having ordinary voting power for the election of a
majority of the directors of such company, other than stock having such power
only by reason of the occurrence of a contingency.
"Authenticating Agent" means an authenticating agent with
respect to all or any of the series of Debentures, as the case may be,
appointed with respect to all or any series of the Debentures, as the case may
be, by the Trustee pursuant to Section 2.10.
"Board of Directors" means the Board of Directors of the
Company, or any committee of such Board duly authorized to act hereunder.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Company to have
been adopted or consented
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to by the Board of Directors and to be in full force and effect, and delivered
to the Trustee.
"Business day", with respect to any series of Debentures,
means any day other than a day on which banking institutions in the Borough of
Manhattan, the City and State of New York, are authorized or obligated by law
or executive order to close.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company. The Certificate need not comply with the provisions of
Section 13.06.
"Common Securities" means the common undivided beneficial
interests in the assets of the applicable DLJ Capital Trust.
"Company" means Donaldson, Lufkin & Jenrette, Inc., a
corporation duly organized and existing under the laws of the State of
Delaware, and, subject to the provisions of Article Ten, shall also include
its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Indenture is
located at 101 Barclay Street, 21st floor, New York, New York, 10286,
Attention: Corporate Trust Trustee Administration.
"Declaration of Trust" means the Declaration of Trust of the
DLJ Capital Trust, if any, specified in the applicable Board Resolution or
supplemental indenture establishing a particular series of Debentures pursuant
to Section 2.01 hereof.
"Debenture" or "Debentures" means any Debenture or
Debentures, as the case may be, authenticated and delivered
under this Indenture.
"Debentureholder", "holder of Debentures", "registered
holder", or other similar term, means the person or persons in whose name or
names a particular Debenture shall be registered on the books of the Company
kept for the purpose in accordance with the terms of this Indenture.
"Default" means any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
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"Depositary" means with respect to Debentures of any series,
for which the Company shall determine that such Debentures will be issued as a
Global Debenture, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.01 or 2.11.
"DLJ Capital Trust" means such statutory business trust
created under the laws of the State of Delaware specified in the applicable
Board Resolution or supplemental indenture establishing a particular series of
Debentures pursuant to Section 2.01 hereof.
"Event of Default", with respect to Debentures of a
particular series means any event specified in Section 6.01(a), continued for
the period of time, if any, therein designated.
"Global Debenture" means, with respect to any series of
Debentures, a Debenture executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Governmental Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a) (2) of the Securities Act of 1933, as amended) as
custodian with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental Obligation held
by such custodian for the account of the holder of such depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Governmental Obligation or the specific payment of principal of or interest on
the Governmental Obligation evidenced by such depository receipt.
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"Guarantee" means the guarantee, if any, that the Company
may enter into that operates directly or indirectly for the benefit of holders
of Preferred Securities issued by a DLJ Capital Trust.
"Indenture" means this instrument as originally executed,
or, if amended or supplemented as herein provided, as so amended or
supplemented.
"Interest Payment Date" when used with respect to any
installment of interest on a Debenture of a particular series means the date
specified in such Debenture or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Debentures of that series is due and
payable.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer
or the Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company and who shall be satisfactory to the Trustee. Each
such certificate shall include the statements provided for in Section 13.06,
if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel for the Company and who
shall be satisfactory to the Trustee. Each such opinion shall include the
statements provided for in section 13.06, if and to the extent required by the
provisions thereof.
"Outstanding", when used with reference to Debentures of any
series, subject to the provisions of Section 8.01, means, as of any particular
time, all Debentures of that series theretofore authenticated and delivered by
the Trustee under this Indenture, except (a) Debentures theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying
agent for cancellation or which have previously been canceled; (b) Debentures
or portions thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust for the holders of such
Debentures by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Debentures or portions of such Debentures are
to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as in Article Three provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and (c) Debentures in
lieu of or in
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substitution for which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.07.
"Person" means any individual, corporation, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means
every previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" means the preferred undivided
beneficial interests in the assets of the applicable DLJ Capital Trust.
"Property Trustee" means the entity performing the function
of the Property Trustee under the applicable Declaration of Trust of a DLJ
Capital Trust.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, the president, any vice
president, the secretary, the treasurer, any trust officer, any corporate
trust officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"Security Exchange" when used with respect to the Debentures
of any series which are held as trust assets of a DLJ Capital Trust pursuant
to the Declaration of Trust of such DLJ Capital Trust, means the distribution
of the Debentures of such series by such DLJ Capital Trust in exchange for the
Preferred Securities and Common Securities of such DLJ Capital Trust in
dissolution of such DLJ Capital Trust pursuant to the Declaration of Trust of
such DLJ Capital Trust.
"Senior Indebtedness" means the principal of and premium, if
any, and interest on (a) all indebtedness of the Company, whether outstanding
on the date of this Indenture or thereafter created, (i) for money borrowed by
the Company (including, without limitation, indebtedness issued or to be
issued pursuant to the Subordinated Indenture dated as of
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August __, 1996 between DLJ and The Bank of New York as Trustee), (ii) for
money borrowed by, or obligations of, others and either assumed or guaranteed,
directly or indirectly, by the Company, (iii) in respect of letters of credit
and acceptances issued or made by banks, or (iv) constituting purchase money
indebtedness, or indebtedness secured by property included in the property,
plant and equipment accounts of the Company at the time of the acquisition of
such property by the Company, for the payment of which the Company is directly
liable, and (b) all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any such indebtedness. As used
in the preceding sentence the term "purchase money indebtedness" means
indebtedness evidenced by a note, debenture, bond or other instrument (whether
or not secured by any lien or other security interest) issued or assumed as
all of a part of the consideration for the acquisition of property, whether by
purchase, merger, consolidation or otherwise, unless by its terms such
indebtedness is subordinate to other indebtedness of the Company.
Notwithstanding anything to the contrary in this Indenture or the Debentures,
Senior Indebtedness shall not include (i) any indebtedness of the Company
which, by its terms or the terms of the instrument creating or evidencing it,
is subordinate in right of payment to or pari passu with the Debentures, as
the case may be, and, in particular, the Debentures shall rank pari passu with
all other debt securities and guarantees in respect of those debt securities,
issued to (y) any other DLJ Capital Trust and (z) any other trusts,
partnerships or any other entity affiliated with the Company which is a
financing vehicle of the Company ("Financing Entity") in connection with an
issuance of preferred securities by such Financing Entity, or (ii) any
indebtedness of the Company to a Subsidiary.
"Subsidiary" means any corporation at least a majority of
whose outstanding voting stock shall at the time be owned by the Company or by
one or more subsidiaries or by the Company and one or more Subsidiaries. For
the purposes only of this definition of the term "Subsidiary", the term
"voting stock", as applied to the stock of any corporation, shall mean stock
of any class or classes having ordinary voting power for the election of a
majority of the directors of such corporation, other than stock having such
power only by reason of the occurrence of a contingency.
"Trustee" means The Bank of New York, a New York banking
corporation, and, subject to the provisions of Article Seven, shall also
include its successors and assigns, and, if at any time there is more than one
person acting in such capacity hereunder, "Trustee" shall mean each such
person. The term "Trustee" as used with respect to a
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particular series of the Debentures shall mean the trustee with respect to
that series.
"Trust Indenture Act", subject to the provisions of Section
9.01 and 9.02, means the Trust Indenture Act of 1939, as amended and in effect
at the date of execution of this Indenture.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBENTURES
Section 2.01. The aggregate principal amount of Debentures
which may be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the
aggregate principal amount of Debentures of that series from time to time
authorized by or pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto, prior to the initial issuance of Debentures of
a particular series. Prior to the initial issuance of Debentures of any
series, there shall be established in or pursuant to a Board Resolution, and
set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto:
(1) the title of the Debentures of the series
(which shall distinguish the Debentures of the
series from all other Debentures);
(2) any limit upon the aggregate principal amount of the
Debentures of that series which may be authenticated and
delivered under this Indenture (except for Debentures
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Debentures of that
series):
(3) the date or dates on which the principal of
the Debentures of the series is payable;
(4) the rate or rates at which the Debentures of
the series shall bear interest or the manner of
calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest will be
payable or the manner of determination of such Interest Payment
Dates and the record date for the determination of holders to
whom
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interest is payable on any such Interest Payment
Dates;
(6) the right, if any, to extend the interest
payment periods and the duration of such extension;
(7) the period or periods within which, the price or
prices at which, and the terms and conditions upon which,
Debentures of the series may be redeemed, in whole or in part, at
the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Debentures of the series pursuant to any sinking fund
or analogous provisions (including payments made in cash in
anticipation of future sinking fund obligations) or at the
option of a holder thereof and the period or periods within
which, the price or prices at which, and the terms and
conditions upon which, Debentures of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the form of the Debentures of the series
including the form of the Certificate of
Authentication for such series;
(10) if other than denominations of $25 or any
integral multiple thereof, the denominations in
which the Debentures of the series shall be
issuable;
(11) any and all other terms with respect to such
series (which terms shall not be inconsistent with
the terms of this Indenture); and
(12) whether the Debentures are issuable as a
Global Debenture and, in such case, the identity of
the Depositary for such series.
(13) If the Debentures of such series are to be deposited
as trust assets in a DLJ Capital Trust the name of the applicable
DLJ Capital Trust (which shall distinguish such statutory
business trust from all other DLJ Capital Trusts) into which the
Debentures of such series are to be deposited as trust assets
and the date of its Declaration of Trust.
All Debentures of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to any such Board Resolution or in any indenture supplemental
hereto.
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If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 2.02. The Debentures of any series and the Trustee's
certificate of authentication to be borne by such Debentures shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution and as set forth in
an Officers' Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which
Debentures of that series may be listed, or to conform to usage.
SECTION 2.03. The Debentures shall be issuable as registered
Debentures and in the denominations of $25 or any integral multiple thereof,
subject to Section 2.01(10). The Debentures of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Debentures of any series, as
well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America which
at the time is legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City and State of New York. Each Debenture shall be dated the date of its
authentication. Interest on the Debentures shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Debenture which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name said
Debenture (or one or more Predecessor Debentures) is registered at the close
of business on the regular record date for such interest installment. In the
event that any Debenture of a particular series or portion thereof is called
for redemption and the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Debenture will be paid upon presentation and surrender
of such Debenture as provided in Section 3.03.
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Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of the same series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The Company may make payment of any Defaulted Interest
on Debentures to the persons in whose names such Debentures (or
their respective Predecessor Debentures) are registered at the
close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following
manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such
Debenture and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the special record date therefor to
be mailed, first class postage prepaid, to each Debentureholder
at his or her address as it appears in the Debenture Register
(as hereinafter defined), not less than 10 days prior to such
special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid
to the persons in whose names such Debentures (or their
Predecessor Debentures) are registered on such special record
date and shall be no longer payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Debentures in any other lawful
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manner not inconsistent with the requirements of any securities
exchange on which such Debentures may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or
more indentures supplemental hereto establishing the terms of any series of
Debentures pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Debentures with respect to
any Interest Payment Date for such series shall mean either the fifteenth day
of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the first day of a month, or the last day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not
such date is business day.
Subject to the foregoing provisions of this Section, each
Debenture of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debenture of such series shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Debenture.
SECTION 2.04. The Debentures shall, subject to the
provisions of Section 2.06, be printed on steel engraved borders or fully or
partially engraved, or legibly typed, as the proper officers of the Company
may determine, and shall be signed on behalf of the Company by the Chairman or
Vice Chairman of its Board of Directors or its President or one of its Vice
Presidents, under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. The signature of the Chairman, Vice Chairman, President
or a Vice President and/or the signature of the Secretary or an Assistant
Secretary in attestation of the corporate seal, upon the Debentures, may be in
the form of a manual or facsimile signature of a present or any future
Chairman, Vice Chairman, President or Vice President and of a present or any
future Secretary or Assistant Secretary and may be imprinted or otherwise
reproduced on the Debentures and for that purpose the Company may use the
manual or facsimile signature of any person who shall have been a Chairman,
Vice Chairman, President or Vice President, or of any person who shall have
been a Secretary or Assistant Secretary, notwithstanding the fact that at the
time the Debentures shall be authenticated and delivered or disposed of such
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person shall have ceased to be the Chairman, Vice Chairman, President or a
Vice President, or the Secretary or an Assistant Secretary, of the Company, as
the case may be. The seal of the Company may be in the form of a facsimile of
the seal of the Company and may be impressed, affixed, imprinted or otherwise
reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate executed by the Trustee, or by any Authenticating Agent appointed
by the Trustee with respect to such Debentures, upon any Debenture executed by
the Company shall be conclusive evidence that the Debenture so authenticated
has been duly authenticated and made available for delivery hereunder and that
the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Debentures, signed by its President or any Vice President and its Treasurer or
any Assistant Treasurer, and the Trustee in accordance with such written order
shall authenticate and make available for delivery such Debentures.
In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation to such
Debentures, the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in conformity with the
provisions of this Indenture.
The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Debentures and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated
for such purpose in the Borough of Manhattan, The City and State of New York,
for other Debentures of such series of authorized denominations, and for a
like aggregate principal amount, upon payment of a
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sum sufficient to cover any tax or other governmental charge in relation
thereto, all as provided in this Section. In respect of any Debentures so
surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall make available for delivery in
exchange therefor the Debenture or Debentures of the same series which the
Debentureholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of Manhattan, The
City and State of New York, or such other location designated by the Company a
register or registers (herein referred to as the "Debenture Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Debentures and the transfers of Debentures as in this
Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Debentures and transfer of Debentures as herein provided shall be appointed as
authorized by Board Resolution (the "Debenture Registrar").
Upon surrender for transfer of any Debenture at the office
or agency of the Company designated for such purpose in the Borough of
Manhattan, The City and State of New York, the Company shall execute, the
Trustee shall authenticate and such office or agency shall make available for
delivery in the name of the transferee or transferees a new Debenture or
Debentures of the same series as the Debenture presented for a like aggregate
principal amount.
All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Debenture Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or
the Debenture Registrar, duly executed by the registered holder or by his duly
authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new Debentures in case of
partial redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, the second paragraph of Section
3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange
or register the transfer of any Debentures during a period beginning at the
opening of business 15 days
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before the day of the mailing of a notice of redemption of less than all the
outstanding Debentures of the same series and ending at the close of business
on the day of such mailing, nor (ii) to register the transfer of or exchange
any Debentures of any series or portions thereof called for redemption. The
provisions of this Section 2.05 are, with respect to any Global Debenture,
subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive
Debentures of any series, the Company may execute, and the Trustee shall
authenticate and make available for delivery, temporary Debentures (printed,
lithographed or typewritten) of any authorized denomination, and substantially
in the form of the definitive Debentures in lieu of which they are issued, but
with such omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company. Every temporary
Debenture of any series shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Debentures of such series. Without
unnecessary delay the Company will execute and will furnish definitive
Debentures of such series and thereupon any or all temporary Debentures of
such series may be surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated for the purpose in
the Borough of Manhattan, The City and State of New York, and the Trustee
shall authenticate and such office or agency shall make available for delivery
in exchange for such temporary Debentures an equal aggregate principal amount
of definitive Debentures of such series, unless the Company advises the
Trustee to the effect that definitive Debentures need not be executed and
furnished until further notice from the Company. Until so exchanged, the
temporary Debentures of such series shall be entitled to the same benefits
under this Indenture as definitive Debentures of such series authenticated and
delivered hereunder.
SECTION 2.07. In case any temporary or definitive Debenture
shall become mutilated or be destroyed, lost or stolen, the Company (subject
to the next succeeding sentence) shall execute, and upon its request the
Trustee (subject as aforesaid) shall authenticate and make available for
delivery, a new Debenture of the same series bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture so destroyed,
lost or stolen. In every case the applicant for a substituted Debenture shall
furnish to the Company and to the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
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destruction, loss or theft, the applicant shall also furnish to the Company
and to the Trustee evidence to their satisfaction of the destruction, loss or
theft of the applicant's Debenture and of the ownership thereof. The Trustee
may authenticate any such substituted Debenture and make available for
delivery the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Debenture, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. In case
any Debenture which has matured or is about to mature shall become mutilated
or be destroyed, lost or stolen, the Company may, instead of issuing a
substitute Debenture, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debenture) if the
applicant for such payment shall furnish to the Company and to the Trustee
such security or indemnity as they may require to save them harmless, and, in
case of destruction, loss or theft, evidence to the satisfaction of the
Company and the Trustee of the destruction, loss or theft of such Debenture
and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this
Section in substitution for any Debenture which is mutilated, destroyed, lost
or stolen shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debenture
shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Debentures of the same series duly issued hereunder. All Debentures
shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures, and shall preclude (to the
extent lawful) any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. All Debentures surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the Trustee
for cancellation, or, if surrendered to the Trustee, shall be canceled by it,
and no Debentures shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. On written request of
the Company, the Trustee shall deliver to the Company canceled Debentures held
by the Trustee. If the Company shall otherwise acquire any of the Debentures,
however, such acquisition shall not
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operate as a redemption or satisfaction of the indebtedness represented by
such Debentures unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09. Nothing in this Indenture or in the
Debentures, express or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the holders of
the Debentures, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for the
sole benefit of the parties hereto and of the holders of the Debentures.
SECTION 2.10. So long as any of the Debentures of any series
remain outstanding there may be an Authenticating Agent for any or all such
series of Debentures which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange, transfer or
partial redemption thereof, and Debentures so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Debentures by the Trustee shall be deemed
to include authentication by an Authenticating Agent for such series except
for authentication upon original issuance or pursuant to Section 2.07 hereof.
Each Authenticating Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a
trust business, and which is otherwise authorized under such laws to conduct
such business and is subject to supervision or examination by Federal or State
authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The Trustee
may at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the
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rights, powers and duties of its predecessor hereunder as if originally named
as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant to
Section 2.01 that the Debentures of a particular series are to be issued as
one or more Global Debentures, then the Company shall execute and the Trustee
shall, in accordance with Section 2.04, authenticate and deliver, one or more
Global Debentures which (i) shall represent, and shall be denominated in an
aggregate amount equal to the aggregate principal amount of, all of the
Outstanding Debentures of such series, (ii) shall be registered in the name of
the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Debenture may be transferred, in whole but
not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the
Global Debenture of a series may be transferred, in whole but not in part and
in the manner provided in Section 2.05, only to another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary for a series of Debentures
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation and a successor Depositary for such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Debentures of such series and the
Company will execute, and subject to Section 2.05, the Trustee will
authenticate and make available for delivery Debentures of such series in
definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Debentures of such series in exchange for such Global Debenture. In addition,
the Company may at any time determine that the Debentures of any series shall
no longer be represented by one or more Global Debentures and that the
provisions of this Section 2.11 shall no longer apply to the Debentures of
such series. In such event the Company will execute and subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will
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authenticate and deliver Debentures of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debentures of
such series in exchange for such Global Debentures. Upon the exchange of the
Global Debentures for such Debentures in definitive registered form without
coupons, in authorized denominations, the Global Debentures shall be canceled
by the Trustee. Such Debentures in definitive registered form issued in
exchange for the Global Debentures pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Debentures to the Depositary for delivery to the persons in whose names such
Debentures are so registered.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Debentures may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Debentureholders and no
representation shall be made as to the correctness of such numbers either as
printed on the Debentures or as contained in any notice of redemption or
exchange.
ARTICLE THREE
REDEMPTION OF DEBENTURES AND
SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Debentures of any
series issued hereunder on and after the dates and in accordance with the
terms established for such series pursuant to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a portion of the
Debentures of any series in accordance with the right reserved so to do, it
shall give notice of such redemption to holders of the Debentures of such
series to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 60 days before the
date fixed for redemption of that series to such holders at their last
addresses as they shall appear upon the Debenture Register. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the registered holder receives the notice. In
any case, failure duly to give such notice to the holder of any Debenture of
any series designated for redemption in whole or in part, or any defect in the
notice, shall not
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affect the validity of the proceedings for the redemption of any other
Debentures of such series or any other series. In the case of any redemption
of Debentures prior to the expiration of any restriction on such redemption
provided in the terms of such Debentures or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Debentures of that series are
to be redeemed, and shall state that payment of the redemption price of such
Debentures to be redeemed will be made at the office or agency of the Company
in the Borough of Manhattan, the City and State of New York, upon presentation
and surrender of such Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Debentures of a series are to
be redeemed, the notice to the holders of Debentures of that series to be
redeemed in whole or in part shall specify the particular Debentures to be so
redeemed. In case any Debenture is to be redeemed in part only, the notice
which relates to such Debenture shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Debenture, a new Debenture or
Debentures of such series in principal amount equal to the unredeemed portion
thereof will be issued.
(b) If less than all the Debentures of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal amount
of Debentures of the series to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as it shall deem appropriate and fair
in its discretion and which may provide for the selection of a portion or
portions (equal to $25 or any integral multiple thereof) of the principal
amount of such Debentures of a denomination larger than $25, the Debentures to
be redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its President or any Vice
President, instruct the Trustee or any paying agent to call all or any part of
the Debentures of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as
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the Trustee or such paying agent may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such paying agent,
the Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such Debenture
Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption
shall have been completed as above provided, the Debentures or portions of
Debentures of the series to be redeemed specified in such notice shall become
due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption and interest on such Debentures or portions of Debentures shall
cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest
with respect to any such Debenture or portion thereof. On presentation and
surrender of such Debentures on or after the date fixed for redemption at the
place of payment specified in the notice, said Debentures shall be paid and
redeemed at the applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an interest payment date, the interest installment
payable on such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which
is to be redeemed in part only, the Company shall execute and the Trustee
shall authenticate and the office or agency where the Debenture is presented
shall make available for delivery to the holder thereof, at the expense of the
Company, a new Debenture or Debentures of the same series, of authorized
denominations in principal amount equal to the unredeemed portion of the
Debenture so presented.
SECTION 3.04. The provisions or Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Debentures of a
series, except as otherwise specified as contemplated by section 2.01 for
Debentures of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Debentures of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Debentures of any series is herein
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referred to as on "optional sinking fund payment". If provided for by the
terms of Debentures for any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 3.05. Each sinking
fund payment shall be applied to the redemption of Debentures of any series as
provided for by the terms of Debentures of such series.
SECTION 3.05. The Company (i) may deliver outstanding
Debentures of a series (other than any previously called for redemption) and
(ii) may apply as a credit Debentures of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Debentures
or through the application of permitted optional sinking fund payments
pursuant to the terms of such Debentures, in each case in satisfaction of all
or any part of any sinking fund payment with respect to the Debentures of such
series required to be made pursuant to the terms of such Debentures as
provided for by the terms of such series; provided that such Debentures have
not been previously so credited. Such Debentures shall be received and
credited for such purpose by the Trustee at the redemption price specified in
such Debentures for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking
fund payment date for any series of Debentures, the Company will deliver to
the Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms for that series,
the portion thereof, if any, which is to be satisfied by delivering and
crediting Debentures of that series pursuant to Section 3.05 and the basis for
such credit and will, together with such Officers' Certificate, deliver to the
Trustee any Debentures to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Debentures to be
redeemed upon such sinking fund payment date in the manner specified in
Section 3.02 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Debentures
shall be made upon the terms and in the manner stated in Section 3.03.
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ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the
Debentures as follows:
SECTION 4.01. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and interest on the
Debentures of that series at the time and place and in the manner provided
herein and established with respect to such Debentures.
SECTION 4.02. So long as any series of the Debentures remain
outstanding, the Company agrees to maintain an office or agency in the Borough
of Manhattan, The City and State of New York, with respect to each such series
and at such other location or locations as may be designated as provided in
this Section 4.02, where (i) Debentures of that series may be presented for
payment, (ii) Debentures of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Debentures of that series and
this Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents for all or any series of the Debentures, other than the Trustee,
the Company will cause each such paying agency to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for
the payment of the principal of (and premium, if any) or
interest on the Debentures of that series (whether such sums
have been paid to it by the Company or by any other obligor of
such Debentures) in trust for the benefit of the persons
entitled thereto:
(2) that it will give the Trustee written notice
of any failure by the Company (or by any other
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obligor of such Debentures) to make any payment of the principal
of (and premium, if any) or interest on the Debentures of that
series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as
set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Debentures, it will on or before each due date of
the principal of (and premium, if any) or interest on Debentures of that
series, set aside, segregate and hold in trust for the benefit of the persons
entitled thereto a sum sufficient to pay such principal (and premium, if any)
or interest so becoming due on Debentures of that series until such sums shall
be paid to such persons or otherwise disposed of as herein provided and will
promptly notify in writing the Trustee of such action, or any failure (by it
or any other obligor on such Debentures) to take such action. Whenever the
Company shall have one or more paying agents for any series of Debentures, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Debentures of that series, deposit with the paying agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the persons entitled to
such principal, premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
(c) Anything in this Section to the contrary
notwithstanding, (i) the agreement to hold sums in trust as provided in this
Section is subject to the provisions of Section 11.05, and (ii) the Company
may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to
pay, to the Trustee all sums held in trust by the Company or such paying
agent, such sums to be held by the Trustee upon the same terms and conditions
as those upon which such sums were held by the Company or such paying agent;
and, upon such payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such money.
SECTION 4.04. The Company, whenever necessary to
avoid or fill a vacancy in the office of Trustee, will
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appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) on a monthly basis on each regular record date
(as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series
of Debentures as of such regular record date, provided, that the Company shall
not be obligated to furnish or cause to furnish such list at any time that the
list shall not differ in any respect from the most recent list furnished to
the Trustee by the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished; provided, however, no such list need
be furnished for any series for which the Trustee shall be the Debenture
Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and
addresses of the holders of Debentures contained in the most recent list
furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Debentures received by the Trustee in its capacity as Debenture
Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Debenture for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of Debentures of such series or holders of all
Debentures with respect to their rights under this Indenture or under such
Debentures, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall within five business
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days after the receipt of such application, at its election,
either:
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.02; or
(2) inform such applicants as to the approximate number of
holders of Debentures of such series or of all Debentures, as
the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section 5.02, and
as to the approximate cost of mailing to such Debentureholders
the form of proxy or other communication, if any, specified in
such application.
(d) If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of
such applicants, mail to each holder of such series or of all Debentures, as
the case may be, whose name and address appears in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 5.02, a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission (the "Commission"), together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests
of the holders of Debentures of such series or of all Debentures, as the case
may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Debentureholders
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise, the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
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(e) Each and every holder of the Debentures, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent nor any Debenture Registrar shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the holders of Debentures in accordance with the
provisions of subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 5.03. (a) The Company covenants and agrees to file
with the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15 (d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the Commission in
accordance with the rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act, in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations. Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required
from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable overnight delivery service which
provides for evidence of receipt, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, within 30 days after the filing
thereof with the Trustee, such summaries of
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any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before May 15 in each calendar year in which any of the
Debentures are outstanding, or on or before such other day in each calendar
year as the Company and the Trustee may from time to time agree upon, a
Certificate as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this subsection
(d), such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in which
any of the Debentures are outstanding, the Trustee shall transmit by mail,
first class postage prepaid, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, a brief report dated as of the
preceding May 15, with respect to any of the following events which may have
occurred within the previous twelve months (but if no such event has occurred
within such period no report need be transmitted):
(1) any change to its eligibility under Section
7.09, and its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through
(10) of subsection (c) of Section 7.08;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement of
which it claims or may claim a lien or charge, prior to that of
the Debentures, on any property or funds held or collected by it
as Trustee if such advances so remaining unpaid aggregate more
than 1/2 of 1% of the principal amount of the Debentures
outstanding on the date of such report;
(4) any change to the amount, interest rate, and maturity
date of all other indebtedness owing by the Company, or by any
other obligor on the Debentures, to the Trustee in its
individual capacity, on the date of such report, with a brief
description of any property held as collateral security
therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in
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paragraph (2), (3), (4), or (6) of subsection (b) of
Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such
on the date of such report;
(6) any release, or release and substitution, of property
subject to the lien of this Indenture (and the consideration
thereof, if any) which it has not previously reported;
(7) any additional issue of Debentures which the
Trustee has not previously reported; and
(8) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously
reported and which in its opinion materially affects the
Debentures or the Debentures of any series, except any action in
respect of a default, notice of which has been or is to be
withheld by it in accordance with the provisions of Section
6.07.
(b) The Trustee shall transmit by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses appear upon the
Debenture Register, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such since the date of
the last report transmitted pursuant to the provisions of subsection (a) of
this Section (or if no such report has yet been so transmitted, since the date
of execution of this Indenture), for the reimbursement of which it claims or
may claim a lien or charge prior to that of the Debentures of any series on
property or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection if such advances remaining
unpaid at any time aggregate more than 10% of the principal amount of
Debentures of such series outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Debentures are listed (if so listed)
and also with the Commission. The Company agrees to notify the Trustee when
any Debentures become listed on any stock exchange.
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ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to
Debentures of a particular series, "Event of Default" means any one or more of
the following events which has occurred and is continuing:
(1) default in the payment of any installment of interest
upon any of the Debentures of that series, as and when the same
shall become due and payable, and continuance of such default
for a period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company in
accordance with the terms of any indenture supplemental hereto,
shall not constitute a default in the payment of interest for
this purpose;
(2) default in the payment of the principal of (or premium,
if any, on) any of the Debentures of that series as and when the
same shall become due and payable whether at maturity, upon
redemption, by declaring or otherwise, or in any payment
required by any sinking or analogous fund established with
respect to that series;
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of
the Company with respect to that series contained in such
Debentures or otherwise established with respect to that series
of Debentures pursuant to Section 2.01 hereof or contained in
this Indenture (other than a covenant or agreement which has
been expressly included in this Indenture solely for the benefit
of one or more series of Debentures other than such series) for
a period of 90 days after the date on which written notice of
such failure, requiring the same to be remedied and stating that
such notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at
least 25% in principal amount of the Debentures of that series
at the time outstanding;
(4) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company as
bankrupt or insolvent, or approving as properly filed a petition
seeking liquidation or reorganization of the Company under the
Federal Bankruptcy Code or any other similar
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applicable Federal or State law, and such decree or order shall
have continued unvacated and unstayed for a period of 90 days;
or an involuntary case shall be commenced under such Code in
respect of the Company and shall continue undismissed for a
period of 90 days or an order for relief in such case shall have
been entered; or a decree or order of a court having
jurisdiction in the premises shall have been entered for the
appointment on the ground of insolvency or bankruptcy of a
receiver or custodian or liquidator or trustee or assignee in
bankruptcy or insolvency of the Company or of its property, or
for the winding up or liquidation of its affairs, and such
decree or order shall have remained in force unvacated and
unstayed for a period of 90 days; or
(5) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing
of a bankruptcy proceeding against it, or shall file a petition
or answer or consent seeking liquidation or reorganization under
the Federal Bankruptcy Code or any other similar applicable
Federal or State law, or shall consent to the filing of any such
petition, or shall consent to the appointment on the ground of
insolvency or bankruptcy of a receiver or custodian or
liquidator or trustee or assignee in bankruptcy or insolvency of
it or of its property, or shall make an assignment for the
benefit of creditors.
(b) In each and every such case, unless the principal of all
the Debentures of that series shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Debentures of that series then outstanding hereunder, by notice
in writing to the Company (and to the Trustee if given by such
Debentureholders), may declare the principal of all the Debentures of that
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything contained
in this Indenture or in the Debentures of that series or established with
respect to that series pursuant to Section 2.01 hereof to the contrary
notwithstanding.
(c) Section 6.01(b), however, is subject to the condition
that if, at any time after the principal of the Debentures of that series
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon all the
Debentures of
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that series and the principal of (and premium, if any, on) any and all
Debentures of that series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to
the extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Debentures of
that series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and any and all defaults under the Indenture,
other than the nonpayment of principal on Debentures of that series which
shall not have become due by their terms, shall have been remedied or waived
as provided in Section 6.06 then and in every such case the holders of a
majority in aggregate principal amount of the Debentures of that series then
outstanding (subject to, in the case of any series of Debentures held as trust
assets of a DLJ Capital Trust and with respect to which a Security Exchange
has not theretofore occurred, such consent of the holders of the Preferred
Securities and the Common Securities of such DLJ Capital Trust as may be
required under the Declaration of Trust of such DLJ Capital Trust), by written
notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences with respect to that series of Debentures;
but no such rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
(e) If, prior to a Security Exchange with respect to the
Debentures of any series, a Default with respect to the Debentures of such
series shall have occurred, the Company expressly acknowledges that under the
circumstances set forth in the applicable Declaration of Trust, any holder of
Preferred Securities of the applicable DLJ Capital Trust may enforce directly
against the Company the applicable Property Trustee's rights hereunder. In
furtherance of the foregoing and for the avoidance of any doubt, the Company
acknowledges that, under the circumstances described in the applicable
Declaration of Trust, any such holder of Preferred Securities, in its own
name, in the name of the applicable DLJ Capital Trust or in the name of the
holders of the Preferred Securities issued by such DLJ Capital
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Trust, may institute or cause to be instituted a proceeding, including,
without limitation, any suit in equity, an action at law or other judicial or
administrative proceeding, to enforce the applicable Property Trustee's rights
hereunder directly against the Company as issuer of the applicable series of
Debentures, and may prosecute such proceeding to judgment or final decree, and
enforce the same against the Company.
SECTION 6.02. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of interest on any of
the Debentures of a series, or any payment required by any sinking or
analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a
period of 10 business days, or (2) in case default shall be made in the
payment of the principal of (or premium, if any, on) any of the Debentures of
a series when the same shall have become due and payable, whether upon
maturity of the Debentures of a series or upon redemption or upon declaration
or otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Debentures of that series, the
whole amount that then shall have become due and payable on all such
Debentures for principal (and premium, if any) or interest, or both, as the
case may be, with interest upon the overdue principal (and premium, if any)
and (to the extent that payment of such interest is enforceable under
applicable law and without duplication of any other amounts paid by the
Company or the applicable DLJ Capital Trust in respect thereof) upon overdue
installments of interest at the rate per annum expressed in the Debentures of
that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Debentures of that series and collect in the manner
provided by law out of the property of the Company or other obligor upon the
Debentures of that series wherever situated the moneys adjudged or decreed to
be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or other
judicial proceedings
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affecting the Company, any other obligor on such Debentures, or the creditors
or property of either, the Trustee shall have the power to intervene in such
proceedings and take any action therein that may be permitted by the court and
shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of
Debentures of such series allowed for the entire amount due and payable by the
Company or such other obligor under the Indenture at the date of institution
of such proceedings and for any additional amount which may become due and
payable by the Company or such other obligor after such date, and to collect
and receive any moneys or other property payable or deliverable on any such
claim, and to distribute the same after the deduction of the amount payable to
the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Debentures of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly
to such Debentureholders, to pay to the Trustee any amount due it under
Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debentures of
that series, may be enforced by the Trustee without the possession of any of
such Debentures, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of
the Debentures of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Debentureholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debentures of that series or the rights of any
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holder thereof or to authorize the Trustee to vote in respect of the claim of
any Debentureholder in any such proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant
to Section 6.02 with respect to a particular series of Debentures shall be
applied in the order following, at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys on account of principal (or
premium, if any) or interest, upon presentation of the several Debentures of
that series, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee
under Section 7.06; and
SECOND: To the payment of the amounts then due and unpaid
upon Debentures of such series for principal (and premium, if
any) and interest, in respect of which or for the benefit of
which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and
payable on such Debentures for principal (and premium, if any)
and interest, respectively.
SECTION 6.04. No holder of any Debenture of any series shall
have any right by virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such holder previously
shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof with respect to Debentures of such series specifying
such Event of Default, as hereinbefore provided, and unless also the holders
of not less than 25% in aggregate principal amount of the Debentures of such
series then outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such action, suit
or proceeding; it being understood and intended, and being expressly
covenanted by the taker and holder of every Debenture of such series with
every other such taker and holder and Trustee, that no one or more holders of
Debentures of such series shall have any right in any manner whatsoever by
virtue or by availing of
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any provision of this Indenture to affect, disturb or prejudice the rights of
the holders of any other of such Debentures, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Debentures of such series. For
the protection and enforcement of the provisions of this Section, each and
every Debentureholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Debenture to receive payment of the
principal of (and premium, if any) and interest on such Debenture, as therein
provided, on or after the respective due dates expressed in such Debenture (or
in the case of redemption, on the redemption date), or to institute suit for
the enforcement of any such payment on or after such respective dates or
redemption date, shall not be impaired or affected without the consent of such
holder.
SECTION 6.05. (a) All powers and remedies given by this
Article to the Trustee or to the Debentureholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any others thereof
or of any other powers and remedies available to the Trustee or the holders of
the debentures, by judicial proceedings or otherwise, to enforce performance
or observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of
any of the Debentures to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or to the
Debentureholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Debentures of any series at the time outstanding,
determined in accordance with Section 8.04 (with, in the case of any series of
Debentures held as trust assets of a DLJ Capital Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of
holders of the Preferred Securities and the Common Securities of such DLJ
Capital Trust as may be required under the Declaration of Trust of such DLJ
Capital Trust), shall have the right to direct the time, method and
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place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture or unduly prejudicial to the rights of
holders of Debentures of any other series at the time outstanding determined
in accordance with Section 8.04 not parties thereto. Subject to the provisions
of Section 7.01, the Trustee shall have the right to decline to follow any
such direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Debentures of any series at the time
outstanding affected thereby, determined in accordance with section 8.04
(with, in the case of any series of Debentures held as trust assets of a DLJ
Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such DLJ Capital Trust as may be required under the
Declaration of Trust of such DLJ Capital Trust), may on behalf of the holders
of all of the Debentures of such series waive any past default in the
performance of any of the covenants contained herein or established pursuant
to section 2.01 with respect to such series and its consequences, except a
default in the payment of the principal of, or premium, if any, or interest
on, any of the Debentures of that series as and when the same shall become due
by the terms of such Debentures otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments of
interest and principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)) or a call for redemption of Debentures of
that series. Upon any such waiver, the default covered thereby shall be deemed
to be cured for all purposes of this Indenture and the Company, the Trustee
and the holders of the Debentures of such series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series, transmit by mail,
first class postage prepaid, to the holders of Debentures of that series, as
their names and addresses appear upon the Debenture Register, notice of all
defaults with respect to that series known to the Trustee, unless such
defaults shall have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined to be the
events specified in subsections (1), (2), (3), (4) and (5) of Section 6.01(a),
not including any periods of grace
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provided for therein and irrespective of the giving of notice provided for by
subsection (3) of Section 6.01(a)); provided, that, except in the case of
default in the payment of the principal of (or premium, if any) or interest on
any of the Debentures of that series or in the payment of any sinking fund
installment established with respect to that series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers, of the Trustee in good faith determine that the withholding of such
notice is in the interests of the holders of Debentures of that series;
provided further, that in the case of any default of the character specified
in Section 6.01(a)(3) with respect to Debentures of such series no such notice
to the holders of the Debentures of that series shall be given until at least
30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under subsection (a)(1) or (a)(2) of Section
6.01 as long as the Trustee is acting as paying agent for such series of
Debentures or (ii) any default as to which the Trustee shall have received
written notice or a Responsible Officer charged with the administration of
this Indenture shall have obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each
holder of any Debentures by his or her acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders, holding more than 10% in
aggregate principal amount of the outstanding Debentures of any series, or to
any suit instituted by any Debentureholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Debenture of such
series, on or after the respective due dates expressed in such Debenture or
established pursuant to this Indenture.
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ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the occurrence of an
Event of Default with respect to Debentures of a series and after the curing
of all Events of Default with respect to Debentures of that series which may
have occurred, shall undertake to perform with respect to Debentures of such
series such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to Debentures of a
series has occurred (which has not been cured or waived), the Trustee shall
exercise with respect to Debentures of that series such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with
respect to Debentures of a series and after the curing or
waiving of all such Events of Default with respect to that
series which may have occurred:
(i) the duties and obligations of the Trustee shall
with respect to Debentures of such series be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to Debentures of
such series except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to Debentures of such
series conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and
conforming to the requirements
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of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a
majority in principal amount of the Debentures of any series at
the time outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture with respect to the Debentures of
that series; and
(4) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of
such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such
risk is not reasonably assured to it.
(5) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Article 7.
SECTION 7.02. Except as otherwise provided in
Section 7.01:
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(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security or other paper or
document believed by it to the genuine and to have been signed
or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company by
the President or any Vice President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer
(unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted hereunder in
good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such
Debentureholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
herein contained shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with
respect to a series of the Debentures (which has not been cured
or waived) to exercise with respect to Debentures of that series
such of the rights and powers vested in it by this Indenture,
and to use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order,
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approval, bond, security, or other papers or documents, unless
requested in writing so to do by the holders of not less than a
majority in principal amount of the outstanding Debentures of
the particular series affected thereby (determined as provided
in Section 8.04); provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a
condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 7.03. (a) The recitals contained herein and in the
Debentures (other than the Certificate of Authentication on the Debentures)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the proceeds of such
Debentures, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received
by any paying agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Debentures with the same rights it would have if it were not
Trustee, paying agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of
Section 11.05, all moneys received by the Trustee shall,
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until used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability
for interest on any moneys received by it hereunder except such as it may
agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled to, such
reasonable compensation as the Company and the Trustee shall from time to time
agree in writing (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) for all services
rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the
Trustee, and the Company will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any
loss, liability or expense including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee) incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Debentures upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Debentures.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
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Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted to be taken by it under
the provisions of this Indenture upon the faith thereof.
SECTION 7.08. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section, with respect to the
Debentures of any series and if the Default to which such conflicting interest
relates has not been cured, duly waived or otherwise eliminated, within 90
days after ascertaining that it has such conflicting interest, it shall either
eliminate such conflicting interest, except as otherwise provided herein, or
resign with respect to the Debentures of that series in the manner and with
the effect specified in Section 7.10 and the Company shall promptly appoint a
successor Trustee in the manner provided herein.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section, with respect to the
Debentures of any series the Trustee shall, within ten days after the
expiration of such 90-day period, transmit notice of such failure by mail,
first class postage prepaid, to the Debentureholders of that series as their
names and addresses appear upon the registration books.
(c) For the purposes of this Section the Trustee shall be
deemed to have a conflicting interest with respect to the Debentures of any
series if a Default has occurred and is continuing and:
(1) the Trustee is trustee under this Indenture with respect
to the outstanding Debentures of any series other than that
series, or is trustee under another indenture under which any
other securities, or certificates of interest or participation
in any other securities, of the Company are outstanding, unless
such other indenture is a collateral trust indenture under which
the only collateral consists of Debentures issued under this
Indenture; provided that there shall be excluded from the
operation of this paragraph the Debentures of any series other
than that series and any other indenture or indentures under
which other securities, or certificates of interest or
participation in other securities, of the Company are
outstanding if (i) this Indenture and such other indenture or
indentures and all series of securities issuable thereunder are
wholly unsecured and rank equally and
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such other indenture or indentures (and such series) are
hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
subsection (b) of Section 305 or subsection (c) of Section 307
of the Trust Indenture Act, that differences exist between (A)
the provisions of this Indenture with respect to Debentures of
that series and with respect to one or more other series or (B)
the provisions of this Indenture and the provisions of such
other indenture or indentures (or such series), which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Debentures of that series and
such other series or such other indenture or indentures, or (ii)
the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that the trusteeship under this Indenture with respect
to Debentures of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to
Debentures of that series and such other series or under such
other indentures;
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with or an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than
the Trustee itself) for the Company who is currently engaged in
the business of underwriting, except that (A) one individual may
be a director and/or an executive officer of the Trustee and a
director and/or an executive officer of the Company, but may not
be at the same time an executive officer of both the Trustee and
the Company; (B) if and so long as the number of directors of
the Trustee in office is more than nine, one additional
individual may be a director and/or an executive officer of the
Trustee
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and a director of the Company; and (C) the Trustee may be
designated by the Company or by an underwriter for the Company
to act in the capacity of transfer agent, registrar, custodian,
paying agent, fiscal agent, escrow agent, or depository, or in
any other similar capacity, or, subject to the provisions of
paragraph (1) of this subsection (c), to act as trustee whether
under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director,
partner, or executive officer thereof, or 20% or more of such
voting securities is beneficially owned, collectively, by any
two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner, or
executive officer thereof, or is beneficially owned,
collectively by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), (A) 5% or more of
the voting securities, or 10% or more of any other class of
security, of the Company, not including the Debentures issued
under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (B) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 5% or more of the
voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or
controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 10% or more of any
class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the
Company;
(9) the Trustee owns, on the date of Default upon the
Debentures of any series or any anniversary of such Default
while such Default upon the Debentures
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issued under this Indenture remains outstanding, in the capacity
of executor, administrator, testamentary or inter vivos trustee,
guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities,
or of any class of security, of any person, the beneficial
ownership of a specified percentage of which would have
constituted a conflict interest under paragraph (6), (7), or (8)
of this subsection (c). As to any such securities of which the
Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which
includes them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities in such estate
do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after the dates of any such Default
upon the Debentures issued under this Indenture and annually in
each succeeding year that the Debentures issued under this
Indenture remain in Default, the Trustee shall make a check of
its holding of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to make
payment in full of principal of or interest on any of the
Debentures when and as the same becomes due and payable, and
such failure continues for 30 days thereafter, the Trustee shall
make a prompt check of its holding of such securities in any of
the above-mentioned capacities as of the date of the expiration
of such 30-day period, and after such date, notwithstanding the
foregoing provisions of this paragraph (9), all such securities
so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure
shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and (8) of
this subsection (c); or
(10) except under the circumstances described in paragraph
(1), (3), (4), (5) or (6) of subsection (b) of Section 7.13 the
Trustee shall be or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection (c), and of
Section 6.06, the term "series of securities" or "securities" means a series,
class or group of securities issuable under an indenture pursuant to whose
terms holders of one such series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately from
holders of another such series; provided,
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that, "series of securities" or "series" shall not include any series of
securities issuable under an indenture if all such series rank equally and are
wholly secured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this subsection (c) shall not be construed as indicating that
the ownership of such percentages of securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed
to be in "default", when a default in payment of principal shall have
continued for 30 days or more and shall not have been cured; and (C) the
Trustee shall not be deemed to be the owner or holder of (i) any security
which it holds as collateral security (as trustee or otherwise) for any
obligation which is not in default as defined in clause (B) above, or (ii) any
security which it holds as collateral security under this Indenture,
irrespective of any Default hereunder, or (iii) any security which it holds as
agent for collection, or as custodian, escrow agent or depositary, or in any
similar representative capacity.
Except as above provided, the word "security" or securities"
as used in this Indenture shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or participation
in any profit-sharing agreement, collateral trust certificate,
pre-organization certificate or subscription, transferable share, investment
contract, voting trust certificate, certificate of deposit for a security,
fractional undivided interest in oil, gas, or other mineral rights, or, in
general, any interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company shall mean every person, who, within one year prior to
the time as of which the determination is made, has purchased
from the
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Company with a view to, or has offered or sold for the Company
in connection with, the distribution of any security of the
Company, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or
has had a participation in the direct or indirect underwriting
of any such undertaking, but such term shall not include a
person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" shall mean any member of the board
of directors of a corporation or any individual performing
similar functions with respect to any organization whether
incorporated or unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization or a government
or political subdivision thereof. As used in this paragraph, the
term "trust" shall include only a trust where the interest or
interests of the beneficiary or beneficiaries are evidenced by a
security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to
vote in the direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor
upon the Debentures.
(6) The term "executive officer" shall mean the chairman of
the board of directors, president, every vice president, every
assistant vice president, every trust officer, the cashier, the
secretary, and the treasurer of a corporation, and any
individual customarily performing similar functions with respect
to any organization whether incorporated or unincorporated.
(e) The percentages of voting securities and other
securities specified in this Section shall be calculated in accordance with
the following provisions:
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(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of
such person are entitled to cast in the direction or management
of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital shares
and the number of units if relating to any other kind of
security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall
not be deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a
sinking fund relating to securities of the issuer
of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities
is not in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof
as security for an obligation of the issuer not in
default as to principal or interest or otherwise;
and
(iv) securities held in escrow if placed in escrow by
the issuer thereof, provided, however, that any voting
securities of an issuer shall be deemed outstanding if any
person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same
class as another security if both securities confer
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upon the holder or holders thereof substantially the same rights
and privileges; provided, however, that, in the case of secured
evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient
to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity
dates thereof shall not be deemed sufficient to constitute them
securities of different classes, whether or not they are issued
under a single indenture.
(f) Except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Debentures issued under
this Indenture, or in the payment of any sinking or analogous fund
installment, the Trustee shall not be required to resign as provided by this
Section 7.08 if such Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured or waived during a reasonable
period and under the procedures described in such application and (ii) a stay
of the Trustee's duty to resign will not be inconsistent with the interests of
Debentureholders. The filing of such an application shall automatically stay
the performance of the duty to resign until the Commission orders otherwise.
Any resignation of the Trustee shall become effective only
upon the appointment of a successor trustee and such successor's acceptance of
such an appointment.
SECTION 7.09. There shall at all times be a Trustee with
respect to the Debentures issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the United States
of America or any State or Territory thereof or of the District of Columbia,
or a corporation or other person permitted to act as trustee by the
Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million dollars, and
subject to supervision or examination by Federal, State, Territorial, or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. The Company may not, nor may any person directly or
indirectly controlling, controlled by, or
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under common control with the Company, serve as Trustee. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Debentures of one or
more series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to
the Debentureholders of such series, as their names and addresses appear upon
the Debenture Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Debentures of such
series by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee
with respect to Debentures of such series, or any Debentureholder of that
series who has been a bona fide holder of a Debenture or Debentures for at
least six months may, subject to the provisions of Section 6.08, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following
shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by
the Company or by any Debentureholder who has been a bona fide
holder of a Debenture or Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.09 and shall fail to resign
after written request therefor by the Company or by any such
Debentureholder; or
(3) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
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conservation or liquidation, then, in any such case, the Company
may remove the Trustee with respect to all Debentures and
appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30
days after the mailing of such notice of removal, the Trustee so
removed may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Debentures of
such series, or any Debentureholder of that series who has been
a bona fide holder of a Debenture or Debentures for at least six
months may, subject to the provisions of Section 6.08, on behalf
of himself and all others similarly situated, petition any such
court for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount
of the Debentures of any series at the time outstanding may at any time remove
the Trustee with respect to such series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Debentures of a series
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section
may be appointed with respect to the Debentures of one or more series or all
of such series, and at any time there shall be only one Trustee with respect
to the Debentures of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a
successor trustee with respect to all Debentures, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment
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of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
trustee with respect to the Debentures of one or more (but not all) series,
the Company, the retiring Trustee and each successor trustee with respect to
the Debentures of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Debentures of that or those series to which the appointment of
such successor trustee relates, (2) shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debentures of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or failure to act
on the part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Debentures of that or those series
to which the appointment of such successor trustee relates have no further
responsibility for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture, and
each such successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debentures of that or those series to
which the appointment of such successor trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with
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respect to the Debentures of that or those series to which the appointment of
such successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, power and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless
at the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. In case any
Debentures shall have been authenticated, but not made available for delivery,
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
make available for delivery the Debentures so authenticated with the same
effect as if such successor Trustee had itself authenticated such Debentures.
SECTION 7.13. (a) Subject to the provisions of subsection
(b) of this Section, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company within three
months prior to a default, as defined in subsection (b) of this Section, or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the
benefit of the Trustee
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individually, the holders of the Debentures and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
three months' period and valid as against the Company and its
other creditors, except any such reduction resulting from the
receipt or disposition of any property described in paragraph
(2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three months' period, or an amount equal to
the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Company)
who is liable thereon, and (ii) the proceeds of the bona fide
sale of any such claim by the Trustee to a third person, and
(iii) distributions made in cash, securities, or other property
in respect of claims filed against the Company in bankruptcy or
receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so
held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it
as security for any such claim, if such claim was created after
the beginning of such three months' period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall
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sustain the burden of proving that at the time such property was
so received the Trustee had no reasonable cause to believe that
a default, as defined in subsection (c) of this Section, would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security
for such claim as provided in such paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Debentureholders and the holders of other
indenture securities in such manner that the Trustee, the Debentureholders and
the holders of other indenture securities realize, as a result of payments
from such special account and payments of dividends on claims filed against
the Company in bankruptcy or receivership or in a case for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim
of the Trustee anything on account of the receipt by it from the Company of
the funds and property in such special account and before crediting to the
respective claims of the Trustee, the Debentureholders and the holders of
other indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or in a case for
reorganization pursuant to the Federal Bankruptcy Code or applicable State
law, whether such distribution is made in cash, securities, or other property,
but shall not include any such distribution with
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respect to the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or a case for reorganization is pending shall have
jurisdiction (i) to apportion between the Trustee, the Debentureholders and
the holders of other indenture securities, in accordance with the provisions
of this paragraph, the funds and property held in such special account and the
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part,
to give to the provisions of this paragraph due consideration in determining
the fairness of the distributions to be made to the Trustee, the
Debentureholders and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the provisions of
this subsection (a) as though such resignation or removal had not occurred. If
any Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this subsection (a)
if and only if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to account, if
such Trustee had continued as trustee, occurred after the
beginning of such three months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the
purpose of preserving any property other than cash which shall
at any time be subject to the lien, if any, of this Indenture or
of
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discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances
surrounding the making thereof is given to the Debentureholders
at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, subscription agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
Company organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly
a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptance or obligations which
fall within the classification of self-liquidating paper as
defined in subsection (c) of this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make
payment in full of the principal of (or premium, if any) or
interest upon any of the Debenture or upon the other indenture
securities when and as such principal (or premium, if any) or
interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in
the Trust Indenture Act) outstanding under any other indenture
(A) under which the Trustee is also trustee, (B) which contains
provisions substantially similar to the provisions of subsection
(a) of this Section, and (C) under which a default exists at the
time of the apportionment of the funds and property held in said
special account.
(3) The term "cash transaction" shall mean any transaction
in which full payment for goods or securities sold is made
within seven days after
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delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon
demand.
(4) The term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon , the goods, wares or merchandise or the receivables
or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor
upon any of the Debentures.
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate principal
amount of the Debentures of a particular series may take any action (including
the making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action) the fact that at the time of taking
any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Debentures of that
series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of
any series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such series for the
determination of Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after
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the record date, but only the Debentureholders of record at the close of
business on the record date shall be deemed to be Debentureholders for the
purposes of determining whether Debentureholders of the requisite proportion
of outstanding Debentures of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the outstanding Debentures of
that series shall be computed as of the record date; provided that no such
authorization, agreement or consent by such Debentureholders on the record
date shall be deemed effective unless it shall become effective pursuant to
the provisions of this Indenture not later than six months after the record
date.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Debentureholder (such proof will
not require notarization) or his agent or proxy and proof of the holding by
any person of any of the Debentures shall be sufficient if made in the
following manner;
(a) The fact and date of the execution by any such person of
any instrument may be proved in any reasonable manner acceptable
to the Trustee.
(b) The ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration
of transfer of any Debenture, the Company, the Trustee, any paying agent and
any Debenture Registrar may deem and treat the person in whose name such
Debenture shall be registered upon the books of the Company as the absolute
owner of such Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Debenture and for all other purposes; and neither the Company
nor the Trustee nor any paying agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the
requisite aggregate principal amount of Debentures of a particular series have
concurred in any direction, consent or waiver under this Indenture, Debentures
of that series which are owned by the Company or any other obligor on the
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Debentures of that series or by any Subsidiary of the Company or of such other
obligor on the Debentures of that series shall be disregarded and deemed not
to be outstanding for the purpose of any such determination, except that for
the purpose of determining whether the Trustee shall be protected in relying
on any such direction, consent or waiver, only Debentures of such series which
the Trustee actually knows are so owned shall be so disregarded. Debentures so
owned which have been pledged in good faith may be regarded as outstanding for
the purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Debentures and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any
action by the holders of the majority or percentage in aggregate principal
amount of the Debentures of a particular series specified in this Indenture in
connection with such action, any holder of a Debenture of that series which is
shown by the evidence to be included in the Debentures the holders of which
have consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 8.02, revoke such action so
far as concerns such Debenture. Except as aforesaid any such action taken by
the holder of any Debenture shall be conclusive and binding upon such holder
and upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures of a particular
series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Debentures of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, when authorized by a
Board Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall
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conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Debentureholders, for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the
covenants of the Company contained herein or otherwise
established with respect to the Debentures; or
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the
protection of the holders of the Debentures of all or any series
as the Board of Directors and the Trustee shall consider to be
for the protection of the holders of Debentures of all or any
series, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants,
restrictions, conditions or provisions a default or an Event of
Default with respect to such series permitting the enforcement
of all or any of the several remedies provided in this Indenture
as herein set forth; provided, however, that in respect of any
such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period
of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit
the right of the holders of a majority in aggregate principal
amount of the Debentures of such series to waive such default;
or
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising
under this Indenture as shall not be inconsistent with the
provisions of this Indenture and shall not adversely affect the
interests of the holders of the Debentures of any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Debenture outstanding of
any series created prior to the execution of such supplemental
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indenture which is entitled to the benefit of such
provision.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee without the
consent of the holders of any of the Debentures at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected by such
supplemental indenture or indentures at the time outstanding (and, in the case
of any series of Debentures held as trust assets of a DLJ Capital Trust and
with respect to which a Security Exchange has not theretofore occurred, such
consent of holders of the Preferred Securities and the Common Securities of
such DLJ Capital Trust as may be required under the Declaration of Trust of
such DLJ Capital Trust), the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the holders of the Debentures of such series under this
Indenture; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Debentures of any series, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the redemption thereof,
without the consent of the holder of each Debenture so affected or (ii) reduce
the aforesaid percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of each Debenture (and, in the case of any series of Debentures held as trust
assets of a DLJ Capital Trust and with respect to which a Security Exchange
has not theretofore occurred, such consent of the holders of the Preferred
Securities and the Common Securities of such DLJ Capital Trust as may be
required under the Declaration of Trust of such DLJ Capital Trust) then
outstanding and affected thereby.
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Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of
Debentureholders (and, in the case of any series of Debentures held as trust
assets of a DLJ Capital Trust and with respect to which a Security Exchange
has not theretofore occurred, such consent of holders of the Preferred
Securities and the Common Securities of such DLJ Capital Trust as may be
required under the Declaration of Trust of such DLJ Capital Trust) required to
consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the
Debentureholders of any series affected thereby under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, this
Indenture shall, with respect to such series, be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Debentures of the series affected
thereby shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be and be deemed
to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Debentures of any series, affected
by a supplemental indenture, authenticated and delivered
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after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by
the Company, provided such form meets the requirements of any exchange upon
which such series may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Debentures of
that series so modified as to conform, in the opinion of the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Debentures of that series then
outstanding.
SECTION 9.05. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the execution
thereof.
ARTICLE TEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.01. The Company shall not consolidate with or
merge into any other Person or transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not permit
any other Person to consolidate with or merge into the Company, unless:
(a) either the Company shall be the continuing corporation,
or the corporation (if other than the Company) formed by such
consolidation or into which the Company is merged or to which
the properties and assets of the Company substantially as an
entity are transferred or leased shall be a corporation
organized and existing under the laws of the United States of
America or any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the
Debentures and this Indenture; and
(b) immediately after giving effect to such transaction no
Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 10.02 The successor corporation formed by such
consolidation or into which the Company is merged or
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to which such transfer or lease is made shall succeed to and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation had been named
as the Company herein, and thereafter (except in the case of a lease to
another Person) the predecessor corporation shall be relieved of all
obligations and covenants under the Indenture and the Debentures and, in the
event of such conveyance or transfer, any such predecessor corporation may be
dissolved and liquidated.
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of this
Article.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 11.01. (A) If at any time (a) the Company shall have
paid or caused to be paid the principal of and interest on all the Debentures
of any series Outstanding hereunder (other than Debentures of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.07) as and when the same shall have become due and
payable, or (b) the Company shall have delivered to the Trustee for
cancellation all Debentures of any series theretofore authenticated (other
than any Debentures of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.07)
or (c) (i) all the Debentures of series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Company shall have
irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or
any paying agent to the Company in accordance with Section 11.04) or
Government Obligations, maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash, or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest on all
Debentures of such series on each date that
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such principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Debentures of such series;
and if, in any such case, the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company, then this Indenture shall cease
to be of further effect (except as to (i) rights of registration of transfer
and exchange of Debentures of such series and the Company's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost
or stolen Debentures, (iii) rights of holders of Debentures to receive
payments of principal thereof and interest thereon, upon the original stated
due dates therefor (but not upon acceleration), and remaining rights of the
Debentureholders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v) the
rights of the holders of Debentures of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or
any of them, and (vi) the obligations of the Company under Section 4.02) and
the Trustee, on demand of the Company accompanied by an Officers' Certificate
and an Opinion of Counsel and at the cost and expense of the Company, shall
execute proper instruments acknowledging such satisfaction of and discharging
this Indenture; provided, that the rights of Holders of the Debentures to
receive amounts in respect of principal of and interest on the Debentures held
by them shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Debentures are
listed. The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Debentures of such series.
(B) The following provisions shall apply to the Debentures
of each series unless specifically otherwise provided in a Board Resolution or
indenture supplemental hereto provided pursuant to Section 2.01. In addition
to discharge of the Indenture pursuant to the next preceding paragraph, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Debentures of a series on the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to
the Debentures of such series shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Debentures of such series
and the Company's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Debentures, (iii) rights of
holders of Debentures to receive payments of principal thereof and interest
thereon,
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upon the original stated due dates therefor (but not upon acceleration), and
remaining rights of the holders of Debentures to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Debentures as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vi) the obligations of the Company
under Section 4.02) and the Trustee, at the expense of the Company, shall at
the Company's request, execute proper instruments acknowledging the same, if
(a) with reference to this provision the Company has
irrevocably deposited or caused to be irrevocably deposited with
the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the
holders of the Debentures of such series (i) cash in an amount,
or (ii) Governmental Obligations maturing as to principal and
interest at such times and in such amounts as will insure the
availability of cash or (iii) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest
on all Debentures of such series on each date that such
principal or interest is due and payable and (B) any mandatory
sinking fund payments on the dates on which such payments are
due and payable in accordance with the terms of the Indenture
and the Debentures of such series;
(b) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument
to which the Company is a party or by which it is bound;
(c) the Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has been a
change in the applicable Federal income tax law, in either case
to the effect that, and such opinion shall confirm that, the
holders of the Debentures of such series will not recognize
income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred;
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(d) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with; and
(e) no event or condition shall exist that, pursuant to the
provisions of Section 14.02 or 14.03, would prevent the Company
from making payments of the principal of or interest on the
Debentures of such series on the date of such deposit.
SECTION 11.02 Subject to Section 11.04, all moneys deposited
with the Trustee (or other trustee) pursuant to Section 11.01 shall be held in
trust and applied by it to the payment, either directly or through any paying
agent (including the Company acting as its own paying agent), to the Holders
of the particular Debentures of such series for the payment or redemption of
which such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 11.03 In connection with the satisfaction and
discharge of this Indenture with respect to Debentures of any series, all
moneys then held by any paying agent under the provisions of this Indenture
with respect to such series of Debentures shall, upon demand of the Company,
be repaid to it or paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys.
SECTION 11.04 Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest on
any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall have become
due and payable, shall, upon the written request of the Company and unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Company by the Trustee for such
series or such paying agent, and the Holder of the Debentures of such series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company
for any payment which such holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment series,
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shall at the expense of the Company, mail by first-class mail to holders of
such Debentures at their addresses as they shall appear on the Debenture
Register, notice, that such moneys remain and that, after a date specified
therein, which shall not be less than thirty days from the date of such
mailing or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 11.05 The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
the Governmental Obligations deposited pursuant to Section 11.01 or the
principal or interest received in respect of such obligations.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. No recourse under or upon any obligations,
covenant or agreement of this Indenture, or of any Debenture, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statue or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Debentures.
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ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful sole successor of the
Company.
SECTION 13.03. The Company by instrument in writing executed
by authority of two-thirds of its Board of Directors and delivered to the
Trustee may surrender any of the powers reserved to the Company and thereupon
such power so surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein
any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
to or on the Company may be given or served by being deposited first class
postage prepaid in a post-office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows: Donaldson,
Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York 10172, Attention:
Secretary. Any notice, election, request or demand by the Company or any
Debentureholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.
SECTION 13.05. This Indenture and each Debenture shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State
(without regard to principles of conflicts of laws thereof).
SECTION 13.06. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been
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complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture (other than the certificate provided
pursuant to Section 5.03(d) of this Indenture) shall include (1) a statement
that the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and (4) a statement as to whether or not,
in the opinion of such person, such condition or covenant has been complied
with.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an Officers' Certificate,
or established in one or more indentures supplemental to the Indenture, in any
case where the date of maturity of interest or principal of any Debenture or
the date of redemption of any Debenture shall not be a business day then
payment of interest or principal (and premium, if any) may be made on the next
succeeding business day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 13.08. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 13.09. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Debentures of any series shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Debentures, but this Indenture and
such Debentures shall be construed as if such
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invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 13.11. The Company will have the right at all times
to assign any of its rights or obligations under this Indenture to a direct or
indirect wholly owned Subsidiary of the Company; provided that, in the event
of any such assignment, the Company will remain jointly and severally liable
for all such obligations. Subject to the foregoing, this Indenture is binding
upon and inures to the benefit of the parties thereto and their respective
successors and assigns. This Indenture may not otherwise be assigned by the
parties hereto.
SECTION 13.12. The Company hereby acknowledges that, to the
extent specifically set forth herein, prior to a Security Exchange with
respect to the Debentures of any series held as trust assets of a DLJ Capital
Trust, the holders of the Preferred Securities of such DLJ Capital Trust shall
expressly be third party beneficiaries of this Indenture. The Company further
acknowledges that, prior to a Security Exchange with respect to Debentures of
any series held as trust assets of a DLJ Capital Trust, if the Property
Trustee of such DLJ Capital Trust fails to enforce its rights under this
Indenture as the holder of the Debentures of a series held as trust assets of
such DLJ Capital Trust, any holder of the Preferred Securities of such DLJ
Capital Trust may institute legal proceedings directly against the Company to
enforce such Property Trustee's rights under this Indenture without first
instituting any legal proceedings against such Property Trustee or any other
person or entity.
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01. The Company, for itself, its successors and
assigns, covenants and agrees, and each holder of a Debenture, by its
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of, premium, if any, and interest on, each and all of the Debentures
is hereby expressly subordinated, to the extent and in the manner hereinafter
in this Article Fourteen set forth, in right of payment to the prior payment
in full of all Senior Indebtedness.
SECTION 14.02.
(a) In the event of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or
other similar proceedings in connection therewith, relative to
the Company or to
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its creditors, as such, or to its property, or in the event of
any proceedings for voluntary liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency
or bankruptcy, or in the event of any execution sale, then the
holders of Senior Indebtedness shall be entitled to receive
payment in full of principal thereof and interest due thereon
(including without limitation, except to the extent, if any,
prohibited by mandatory provisions of law, post-petition
interest in any such proceedings) in money of all Senior
Indebtedness before the holders of Debentures are entitled to
receive any payment on account of the principal of or interest
on the indebtedness evidenced by the Debentures, and to that end
the holders of Senior Indebtedness shall be entitled to receive
for application in payment thereof any payment or distribution
of any kind or character, whether in cash or property or
securities, which may be payable or deliverable in connection
with any such proceedings or sale in respect of the principal of
or interest on the Debentures other than securities of the
Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article
Fourteen with respect to the Debentures, to the payment of all
indebtedness of the nature of Senior Indebtedness, provided that
the rights of the holders of the Senior Indebtedness are not
altered by such reorganization or readjustment;
(b) In the event and during the continuation of any default
in payment of any Senior Indebtedness or if any event of
default, as therein defined, shall exist under any Senior
Indebtedness or any agreement pursuant to which any Senior
Indebtedness is issued, no payment of the principal of, premium
if any, or interest on the Debentures shall be made and the
Company covenants that it will, upon ascertaining any such
default or event of default, provide written notice to the
Trustee of such default or event of default;
(c) In the event that the Debentures of any series are
declared due and payable before their expressed maturity because
of the occurrence of an Event of Default (under circumstances
when the provisions of subsection (a) of this Section 14.02
shall not be applicable), the holders of all Senior Indebtedness
shall be entitled to receive payment in full in money of such
Senior Indebtedness before such
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holders of Debentures are entitled to receive any
payment on account of the principal of or interest
on the Debentures; and
(d) No holder of Senior Indebtedness shall be prejudiced in
his right to enforce subordination of the Debentures by any act
or failure to act on the part of the Company.
SECTION 14.03 In the event that, notwithstanding the
provisions of Section 14.02, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities
(other than securities of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in this Article Fourteen with respect to the
Debentures, to the payment of all indebtedness of the nature of Senior
Indebtedness, provided that the rights of the holders of the Senior
Indebtedness are not altered by such reorganization or readjustment) shall be
received by the holders or by the Trustee for their benefit in connection with
any proceedings or sale referred to in subsection (a) of Section 14.02 before
all Senior Indebtedness is paid in full in money, such payment or distribution
shall be paid over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in full in
money, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
From and after the payment in full in money of all Senior
Indebtedness, the holders of Debentures (together with the holders of any
other indebtedness of the Company which is subordinate in right of payment to
the payment in full of all Senior Indebtedness, which is not subordinate in
right of payment to the Debentures and which by its terms grants such right of
subrogation to the holder thereof) shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of assets
or securities of the Company applicable to the Senior Indebtedness until the
Debentures shall be paid in full, and, for the purposes of such subrogation,
no such payments or distributions to the holders of Senior Indebtedness of
assets or securities, which otherwise would have been payable or distributable
to holders of Debentures, shall, as
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between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders, be deemed to be a payment by the Company to or
on account of the Senior Indebtedness, it being understood that the provisions
of this Article Fourteen are and are intended solely for the purpose of
defining the relative rights of the holders, on the one hand, and the holders
of the Senior Indebtedness, on the other hand, and nothing contained in this
Article Fourteen or elsewhere in this Indenture or in the Debentures is
intended to or shall impair as between the Company, its creditors other than
the holders of Senior Indebtedness, and the holders, the obligation of the
Company, which is unconditional and absolute, to pay to the holders the
principal of and interest on the Debentures as and when the same shall become
due and payable in accordance with their terms, or to affect the relative
rights of the holders and creditors of the Company other than the holders of
the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the holder of any Debenture from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture subject to the
rights of the holders of Senior Indebtedness, under Section 14.02, to receive
cash, property or securities of the Company otherwise payable or deliverable
to the holders of the Debentures.
Upon any distribution or payment in connection with any
proceedings or sale referred to in subsection (a) of Section 14.02, the
Trustee, subject as between the Trustee and the holders to the provisions of
Sections 7.01 and 7.02 hereof, shall be entitled to rely upon a certificate of
the liquidating trustee or agent or other person making any distribution or
payment to the Trustee for the purpose of ascertaining the holders of Senior
Indebtedness entitled to participate in such payment or distribution, the
amount of such Senior Indebtedness or the amount payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article Fourteen. In the event that the Trustee determines, in good
faith, that further evidence is required with respect to the right of any
person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Section 14.03, the Trustee may request such
person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such person, as to the extent to
which such person is entitled to participate in such payment or distribution,
and as to other facts pertinent to the rights of such person under this
Section 14.03, and if such evidence is not furnished, the Trustee may defer
any payment to such person pending judicial determination as to the right of
such person to receive such payment.
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The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness, and shall not be liable
to any such holders if it shall in good faith pay over or distribute to
holders of Debentures or the Company or any other person moneys or assets to
which any holders of Senior Indebtedness shall be entitled by virtue of
Article Fourteen of this Indenture or otherwise.
SECTION 14.04 Nothing contained in this Article Fourteen or
elsewhere in this Indenture, or in any of the Debentures, shall prevent at any
time, (a) the Company from making payments at any time of principal of or
interest on the Debentures, except under the conditions described in Section
14.02 or during the pendency of any proceedings or sale therein referred to,
provided, however, that payments of principal of or interest on the Debentures
shall only be made by the Company within three business days of the due dates
for such payments or (b) the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the principal
of or interest on the Debentures, if at the time of such deposit the Trustee
did not have written notice in accordance with Section 14.06 of any event
prohibiting the making of such deposit by the Company or if in the event of
redemption, the Trustee did not have such written notice prior to the time
that the notice of redemption pursuant to Section 3.02 was given (which notice
of redemption shall in no event be given more than 60 days prior to the date
fixed for redemption).
SECTION 14.05 Each Debentureholder by his acceptance of a
Debenture authorizes and directs the Trustee on his behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination as provided in this Article Fourteen and appoints the Trustee as
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment
for the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the immediate filing of a claim for the
unpaid balance of such Debentureholder's Debentures in the form required in
said proceedings and cause said claim to be approved.
SECTION 14.06 Notwithstanding the provisions of this Article
Fourteen or any other provisions of this Indenture, the Trustee shall not be
charged with the knowledge of the existence of any facts which would prohibit
the making of any payment of moneys to the Trustee, unless and until the
Trustee shall have received written notice thereof from the Company or from
the holder or the representative of any class of Senior Indebtedness;
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provided, however, that if at least two business days prior to the date upon
which by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of either the cash amount payable
at maturity or interest on any Debenture) the Trustee shall not have received
with respect to such monies the notice provided for in this Section 14.06,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary, which may be received by it on or after such two
business days prior to such date.
SECTION 14.07 The Trustee or any Authenticating Agent shall
be entitled to all the rights set forth in this Article Fourteen with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness.
SECTION 14.08 In case at any time any paying agent other
than the Trustee shall be appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article Fourteen shall in such
case (unless the context shall otherwise require) be construed as extending to
and including such paying agent within its meaning as fully for all intents
and purposes as if such paying agent were named in this Article Fourteen in
place of the Trustee.
The Bank of New York, as Trustee, hereby accepts the trust
in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
DONALDSON, LUFKIN & JENRETTE, INC.
By ______________________________
Name:
Title:
Attest:
By ________________________
Name:
Title:
THE BANK OF NEW YORK, AS TRUSTEE
By ___________________________
Name:
Title:
Attest:
By ______________________
Name:
Title:
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On __________, 199__ before me, ____________________,
Notary Public, personally appeared ______________________ and
/ / personally known to me -OR -
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
- -----------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER
/ / INDIVIDUAL(S) _______ ______________
/ / CORPORATE OFFICER(S)
/ / PARTNER(S)
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
DONALDSON, LUFKIN & JENRETTE, INC.
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On _________, 199__ before me, __________________, Notary
Public, personally appeared ___________________ and
/ / personally known to me - OR -
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
- -----------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER
/ / INDIVIDUAL(S) _________________________
/ / CORPORATE OFFICER(S)
/ / TRUST OFFICER
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
THE BANK OF NEW YORK
EXHIBIT 4.14
------------
=============================================================================
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
OF
DLJ CAPITAL TRUST [ ]
---------------------------------------
DATED AS OF ___________, 19__
---------------------------------------
=============================================================================
<PAGE>
TABLE OF CONTENTS*
Page
----
PARTIES......................................................... 1
RECITALS:
Recitals........................................................ 1
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain terms defined; other terms defined
in the Trust Indenture Act of 1939, as amended,
or by reference therein in the Securities Act
of 1933, as amended, to have the meanings
assigned therein.................................. 2
Affiliate......................................... 2
Book Entry Interest............................... 2
Business Day...................................... 3
Business Trust Act................................ 3
Certificate....................................... 3
Certificate of Trust.............................. 3
Clearing Agency................................... 3
Clearing Agency Participant....................... 3
Closing Date...................................... 3
Code.............................................. 3
Commission........................................ 3
Common Security................................... 3
Common Security Certificate....................... 3
Covered Person.................................... 4
Debenture Trustee................................. 4
Debentures........................................ 4
Definitive Preferred Security
Certificates...................................... 4
Delaware Trustee.................................. 4
Depositary Agreement.............................. 4
- -----------------
* This Table of Contents does not constitute part of the Amended and
Restated Declaration of Trust and should not have any bearing upon the
interpretation of any of its terms or provisions.
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Distribution...................................... 4
DTC............................................... 4
Event of Default.................................. 4
Exchange Act...................................... 4
Fiscal Year....................................... 4
Global Certificate................................ 4
Holder............................................ 4
Indemnified Person................................ 5
Indenture......................................... 5
Indenture Event of Default........................ 5
Investment Company................................ 5
Investment Company Act............................ 5
Legal Action...................................... 5
Liquidation Distribution.......................... 5
Majority in liquidation amount
of the Securities............................... 5
Ministerial Action................................ 5
Option Closing Date............................... 6
Original Declaration.............................. 6
Paying Agent...................................... 6
Person............................................ 6
Preferred Guarantee............................... 6
Preferred Security................................ 6
Preferred Security Beneficial
Owner............................................. 6
Preferred Security
Certificate....................................... 6
Property Trustee.................................. 6
Property Account.................................. 6
Quorum............................................ 6
Regular Trustee................................... 6
Related Party..................................... 7
Resignation Request............................... 7
Responsible Officer............................... 7
Rule 3a-7......................................... 7
Securities........................................ 7
Securities Act.................................... 7
66-2/3% in liquidation amount
of the Securities................................. 7
Special Event..................................... 7
Sponsor or DLJ.................................... 8
Successor Delaware Trustee........................ 8
Successor Property Trustee........................ 8
10% in liquidation amount of
the Securities.................................... 8
Treasury Regulations.............................. 8
Trustee or Trustees............................... 8
Trust Indenture Act............................... 9
Underwriting Agreement............................ 9
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act;
Application............................................... 9
SECTION 2.2 List of Holders of Preferred
Securities................................................ 9
SECTION 2.3 Reports by the Property Trustee........................... 10
SECTION 2.4 Periodic Reports to the Property
Trustee................................................... 10
SECTION 2.5 Evidence of Compliance with
Conditions Precedent...................................... 10
SECTION 2.6 Events of Default; Waiver................................. 10
SECTION 2.7 Disclosure of Information................................. 13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name ................................................... 13
SECTION 3.2 Office.................................................... 13
SECTION 3.3 Insurance of the Trust
Securities................................................ 13
SECTION 3.4 Purchase of Debentures.................................... 14
SECTION 3.5 Purpose................................................... 15
SECTION 3.6 Authority................................................. 15
SECTION 3.7 Title to Property of the Trust............................ 16
SECTION 3.8 Powers and Duties of the
Regular Trustees.......................................... 16
SECTION 3.9 Prohibition of Actions by Trust
and Trustees.............................................. 19
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SECTION 3.10 Powers and Duties of the
Property Trustee.......................................... 20
SECTION 3.11 Delaware Trustee.......................................... 23
SECTION 3.12 Certain Rights and Duties of the
Property Trustee.......................................... 23
SECTION 3.13 Registration Statement and
Related Matters........................................... 26
SECTION 3.14 Filing of Amendments to
Certificate of Trust...................................... 27
SECTION 3.15 Execution of Documents by
Regular Trustees.......................................... 28
SECTION 3.16 Trustees Not Responsible for
Recitals or Issuance of
Securities................................................ 28
SECTION 3.17 Duration of Trust......................................... 28
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities
by Sponsor................................................ 28
SECTION 4.2 Expenses.................................................. 28
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees;
Qualifications............................................ 29
SECTION 5.2 Appointment, Removal and
Resignation of Trustees................................... 32
SECTION 5.3 Vacancies Among Trustees.................................. 34
SECTION 5.4 Effect of Vacancies....................................... 34
SECTION 5.5 Meetings.................................................. 34
SECTION 5.6 Delegation of Power....................................... 35
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ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions............................................. 35
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding
Securities................................................ 36
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust...................................... 38
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.................................... 38
SECTION 9.2 Transfer of Certificates.................................. 39
SECTION 9.3 Deemed Security Holders................................... 39
SECTION 9.4 Book Entry Interests...................................... 40
SECTION 9.5 Notices to Holders of
Certificates.............................................. 41
SECTION 9.6 Appointment of Successor
Clearing Agency........................................... 41
SECTION 9.7 Definitive Preferred Securities
Certificates.............................................. 41
SECTION 9.8 Mutilated, Destroyed, Lost or
Stolen Certificates....................................... 42
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ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.1 Exculpation............................................... 42
SECTION 10.2 Indemnification........................................... 43
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year............................................... 44
SECTION 11.2 Certain Accounting Matters................................ 44
SECTION 11.3 Banking................................................... 45
SECTION 11.4 Withholding............................................... 45
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments................................................ 46
SECTION 12.2 Meetings of the Holders of
Securities; Action by Written
Consent................................................... 47
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties
of Property Trustee....................................... 49
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices................................................... 50
SECTION 14.2 Undertaking for Costs..................................... 51
SECTION 14.3 Governing Law............................................. 52
SECTION 14.4 Headings.................................................. 52
SECTION 14.5 Partial Enforceability.................................... 52
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SECTION 14.6 Counterparts.............................................. 52
SECTION 14.7 Intention of the Parties.................................. 53
SECTION 14.8 Successors and Assigns.................................... 53
SIGNATURES AND SEALS.................................................... 54
EXHIBIT A: CERTIFICATE OF TRUST
EXHIBIT B: TERMS OF THE PREFERRED SECURITIES
EXHIBIT C: TERMS OF THE COMMON SECURITIES
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
DLJ CAPITAL TRUST [ ]
__________, 19__
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of __________, 199__ by the undersigned trustees (together with
all other Persons from time to time duly appointed and serving as trustees in
accordance with the provisions of this Declaration, the "Trustees"), Donaldson,
Lufkin & Jenrette, Inc., a Delaware corporation, as trust sponsor ("DLJ" or the
"Sponsor"), and by the holders, from time to time, of undivided beneficial
interests in the assets of the Trust to be issued pursuant to this Declaration.
WHEREAS, the Sponsor and the Trustees entered into a Declaration of
Trust dated as of June 14, 1996 (the "Original Declaration") in order to
establish a statutory business trust (the "Trust") under the Business Trust Act
(as hereinafter defined);
WHEREAS, the Certificate of Trust (the "Certificate of Trust") of the
Trust was filed with the office of the Secretary of State of the State of
Delaware on June 19, 1996;
WHEREAS, the Trustees and the Sponsor desire to continue the Trust
pursuant to the Business Trust Act for the purpose of, as described more fully
in Sections 3.3 and 3.4 hereof, (i) issuing and selling Preferred Securities
(as defined herein) representing preferred undivided beneficial interests in
the assets of the Trust for cash and investing the proceeds thereof in
Debentures (as hereinafter defined) of DLJ issued under the Indenture (as
hereinafter defined) to be held as assets of the Trust and (ii) issuing and
selling Common Securities (as defined herein) representing common undivided
beneficial interests in the assets of the Trust to DLJ in exchange for cash and
investing the proceeds thereof in additional Debentures issued under the
Indenture to be held as assets of the Trust; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act, that the
Original Declaration be amended and restated in its entirety as provided herein
and that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that
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all assets referred to in clauses (i) and (ii) of the previous Whereas clause
purchased by the Trust will be held in trust for the benefit of the Holders (as
defined herein) from time to time, of the Certificates (as defined herein)
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Amended and Restated Declaration of Trust (including Exhibits A, B and C
hereto (the "Exhibits")) as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Clearing Agency as described in Section 9.4.
2
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"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq., as it may be amended from time to time.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Certificate of Trust" has the meaning set forth in the second Whereas
clause above.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as
depository for the Preferred Securities and in whose name or in the name of a
nominee of that organization, shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of the
Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means the Closing Date as specified in the Underwriting
Agreement, which date is also the date of execution and delivery of this
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation. A reference to a specific section
((Sec.)) of the Code refers not only to such specific section but also to any
corresponding provision of any federal tax statute enacted after the date of
this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1(b).
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex I to Exhibit C.
3
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"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or its
Affiliates, (ii) any officer, director, shareholder, employees, representatives
or agents of DLJ or its Affiliates and (iii) the Holders from time to time of
the Securities.
"Debenture Trustee" means The Bank of New York, as trustee under the
Indenture until a successor is appointed thereunder and thereafter means such
successor trustee.
"Debentures" means the series of Junior Subordinated Debentures issued
by DLJ under the Indenture to the Property Trustee and entitled the "____%
Junior Subordinated Debentures due [ ]".
"Definitive Preferred Security Certificates" has the meaning set forth
in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.1(a)(3).
"Depositary Agreement" means the agreement among the Trust, the
Property Trustee and DTC dated as of the Closing Date, as the same may be
amended or supplemented from time to time.
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.1.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
4
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"Indemnified Person" means any Trustee, any Affiliate of any Trustee,
any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the Trust
or its Affiliates.
"Indenture" means the Indenture dated as of August __, 199__ between
DLJ and the Debenture Trustee as supplemented by the [ ] Supplemental Indenture
thereto dated as of ____________, 199__, pursuant to which the Debentures are
to be issued.
"Indenture Event of Default" means an event or condition defined as an
"Event of Default" with respect to the Debentures under Section 6.01(a) of the
Indenture has occurred and is continuing.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time or any successor legislation.
"Legal Action" has the meaning specified in Section 3.8(g).
"Liquidation Distribution" has the meaning set forth in Exhibits B and
C hereto establishing the terms of the Securities.
"Majority in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
represents more than 50% of the liquidation amount of all outstanding
Securities of such class.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Exhibits B and C hereto.
5
<PAGE>
"Option Closing Date" means the Option Closing Date as specified in
the Underwriting Agreement.
"Original Declaration" has the meaning set forth in the first WHEREAS
clause above.
"Paying Agent" has the meaning specified in Section 3.10(i).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Guarantee" means the Guarantee Agreement dated as of
__________, 199__ of DLJ in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1(b).
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive certificate in
fully registered form representing a Preferred Security substantially in the
form of Annex I to Exhibit B.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.1(c) and having the duties set forth for
the Property Trustee herein.
"Property Account" has the meaning specified in Section 3.10(c)(i).
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Property Trustee
and the Delaware Trustee.
6
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"Related Party" means any direct or indirect wholly owned subsidiary
of DLJ or any other Person which owns, directly or indirectly, 100% of the
outstanding voting securities of DLJ.
"Resignation Request" has the meaning specified in Section 5.2(d).
"Responsible Officer" means, with respect to the Property Trustee, the
chairman of the board of directors, the president, any vice-president, any
assistant vice-president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Property Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or any
successor rule thereunder.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time or any successor legislation.
"66-2/3% in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities,
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
represents 66-2/3% or more of the liquidation amount of all outstanding
Securities of such class.
"Special Event" has the meaning set forth in the terms of the
Securities as set forth in Exhibits B and C hereto.
7
<PAGE>
"Sponsor" or "DLJ" means Donaldson, Lufkin & Jenrette, Inc., a
Delaware corporation, or any successor entity in a merger, in its capacity as
sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section
5.2(b)(ii).
"Successor Property Trustee" means a successor Trustee possessing the
qualifications to act as Property Trustee under Section 5.1(c).
"10% in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities,
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
represents 10% or more of the liquidation amount of all outstanding Securities
of such class.
"Treasury Regulations" means the income tax regulations including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
8
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Underwriting Agreement" means the Underwriting Agreement dated as of
__________, 199__ among the Trust, the Sponsor and Donaldson, Lufkin & Jenrette
Securities Corporation, as representative of the several underwriters named
therein.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to
the extent applicable, be governed by such provisions;
(b) if and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by ss.ss.310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control;
(c) the Property Trustee, to the extent permitted by applicable law
and/or the rules and regulations of the Commission, shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture Act; and
(d) the application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Property Trustee with such information as is required
under ss. 312(a) of the Trust Indenture Act at the times and in the manner
provided in ss. 312(a); and
(b) the Property Trustee shall comply with its obligations under
ss.ss. 310(b), 311 and 312(b) of the Trust Indenture Act.
9
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SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Securities such reports as are required by ss.
313 of the Trust Indenture Act, if any, in the form, in the manner and at the
times provided by ss. 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of ss. 313(d) of the Trust Indenture
Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee, the Commission and the Holders of the
Securities, as applicable, such documents, reports and information as required
by ss. 314(a)(1)-(3) (if any) of the Trust Indenture Act and the compliance
certificates required by ss. 314(a)(4) and (c) of the Trust Indenture Act, any
such certificates to be provided in the form, in the manner and at the times
required by ss. 314(a)(4) and (c) of the Trust Indenture Act (provided that any
certificate to be provided pursuant to ss. 314(a)(4) of the Trust Indenture Act
shall be provided within 120 days of the end of each Fiscal Year).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration which relate to
any of the matters set forth in ss. 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given pursuant to ss. 314(c) shall comply
with ss. 314(e) of the Trust Indenture Act.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), Holders of Preferred Securities may, by
vote of at least a Majority in liquidation amount of the Preferred Securities
(A) in accordance with the terms of the Preferred Securities, direct the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee, or (B) on behalf of the Holders of all Preferred Securities, waive any
past Event of Default in respect of the Preferred Securities and its
consequences; provided that if the Event of Default arises out of an Indenture
Event of Default:
10
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(i) which is not waivable under the Indenture, the Event of Default
under this Declaration shall also be not waivable; or
(ii) which requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures, or (2) each holder of Debentures, the Event of
Default under this Declaration may only be waived by, in the case of clause
(1) above, the vote of Holders of Preferred Securities representing such
specified percentage of the aggregate liquidation amount of the Preferred
Securities or, in the case of clause (2) above, each Holder of Preferred
Securities.
Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Preferred Securities or impair any right consequent thereon.
(b) Subject to Section 2.6(c), Holders of Common Securities may by
vote of at least a Majority in liquidation amount of the Common Securities, (A)
in accordance with the terms of the Common Securities, direct the time, method
and place of conducting any proceeding for any remedy available to the Property
Trustee or exercising any trust or power conferred upon the Property Trustee or
(B) on behalf of the Holders of all of the Common Securities, waive any past
Event of Default with respect to the Common Securities and its consequences,
provided that, if the Event of Default arises out of an Indenture Event of
Default:
(i) which is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below, the Event of Default under
this Declaration shall also not be waivable; or
(ii) which requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures or (2) each holder of Debentures, except where the
holders of the Common Securities are deemed to have waived such Event of
Default under this Declaration as provided below, the Event of Default
under this Declaration may only be waived by, in the case of clause (1)
above, the vote of Holders of Common Securities representing such specified
percentage of the
11
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aggregate liquidation amount of the Common Securities or, in the case of
clause (2) above, each holder of Common Securities; and
provided, further, that each Holder of Common Securities will be deemed to have
waived any Event of Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the Preferred
Securities have been cured, waived by the Holders of Preferred Securities as
provided in this Declaration or otherwise eliminated and until all Events of
Default with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely
on behalf of the Holders of the Preferred Securities and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of this Declaration or the Securities. In the event
that any Event of Default with respect to the Preferred Securities is waived by
the Holders of Preferred Securities as provided in this Declaration, the
Holders of Common Securities agree that such waiver shall also constitute the
waiver of such Event of Default with respect to the Common Securities for all
purposes under this Declaration without any further act, vote or consent of the
Holders of the Common Securities. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to exist and any
Event of Default with respect to the Common Securities arising therefrom shall
be deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Common Securities or impair any right consequent thereon.
(c) The right of any Holder of Securities to receive payment of
Distributions on the Securities in accordance with this Declaration and the
terms of the Securities set forth in Exhibits B and C on or after the
respective payment dates therefor, or to institute suit for the enforcement of
any such payment on or after such payment dates, shall not be impaired without
the consent of such Holder.
(d) As provided in the terms of the Securities set forth in Exhibits B
and C hereto, a waiver of an Indenture Event of Default by the Property Trustee
at the written direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Event of Default under this Declaration in
respect of the Securities.
12
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SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of the
Holders of the Securities in accordance with ss. 312 of the Trust Indenture
Act, regardless of the source from which such information was derived, shall
not be deemed to be a violation of any existing law, or any law hereafter
enacted which does not specifically refer to ss. 312 of the Trust Indenture
Act, nor shall the Property Trustee be held accountable by reason of mailing
any material pursuant to a request made under ss. 312(b) of the Trust Indenture
Act.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "DLJ Capital Trust [
]" as such name may be modified from time to time by the Regular Trustees
following written notice to the Holders of Securities. The Trust's activities
may be conducted under the name of the Trust or any other name deemed advisable
by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Donaldson,
Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York 10172. Upon ten
days' written notice to the Holders, the Regular Trustees may change the
location of the Trust's principal office. The name of the registered agent and
office of the Trust in the State of Delaware is [The Corporation Trust Company,
1209 Orange Street, Wilmington, Delaware 19801]. At any time, the Regular
Trustees may designate another registered agent and/or registered office.
SECTION 3.3 Issuance of the Trust Securities.
On __________, 199_ the Sponsor, on behalf of the Trust and pursuant
to the Original Declaration, executed and delivered the Underwriting Agreement.
On the Closing Date and contemporaneously with the execution and delivery of
this Declaration, the Regular Trustees, on behalf of the Trust, shall execute
and deliver to (i) the underwriters named in the Underwriting Agreement, a
Global Certificate, registered in the name of the nominee of the initial
Clearing Agency as specified in Section 9.4, in an aggregate
13
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amount of ___________ Preferred Securities having an aggregate liquidation
amount of $__________, against receipt of the aggregate purchase price of such
Preferred Securities of $___________, and (ii) the Sponsor, Common Securities
Certificates, registered in the name of the Sponsor, in an aggregate amount of
________ Common Securities having an aggregate liquidation amount of
$____________, against receipt of the aggregate purchase price of such Common
Securities of $___________. In the event and to the extent the overallotment
option granted by the Trust pursuant to the Underwriting Agreement is exercised
by such underwriters, on the Option Closing Date the Regular Trustees, on
behalf of the Trust, shall execute and deliver to such underwriters a Global
Certificate, registered in the name of the nominee of the initial Clearing
Agency as specified in Section 9.4, in an aggregate amount of up to ___________
Preferred Securities having an aggregate liquidation amount of up to
$___________, against receipt of the aggregate purchase price of such Preferred
Securities of up to $____________.
SECTION 3.4 Purchase of Debentures.
On the Closing Date and contemporaneously with the execution and
delivery of this Declaration, the Regular Trustees, on behalf of the Trust,
shall purchase from the Sponsor with the proceeds received by the Trust from
the sale of the Securities on such date pursuant to Section 3.3, at a purchase
price of 100% of the principal amount thereof, Debentures, registered in the
name of the Property Trustee and having an aggregate principal amount equal to
$___________, and, in satisfaction of the purchase price for such Debentures,
the Regular Trustee, on behalf of the Trust, shall deliver or cause to be
delivered to the Sponsor the sum of $___________. In the event the
overallotment option granted by the Trust with respect to the Preferred
Securities pursuant to the Underwriting Agreement is exercised by the
underwriters named therein, on the Option Closing Date the Regular Trustees, on
behalf of the Trust, shall purchase from the Sponsor with the proceeds received
by the Trust from the sale of the Preferred Securities on such date pursuant to
Section 3.3, at a purchase price of 100% of the principal amount thereof,
additional Debentures, registered in the name of the Property Trustee and
having an aggregate principal amount of up to $__________, and, in satisfaction
of the purchase price for such Debentures, the Regular Trustees, on behalf of
the Trust, shall deliver or cause to be delivered to the Sponsor an amount
equal to the aggregate principal amount of the Debentures being purchased.
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SECTION 3.5 Purpose.
The exclusive purposes and functions of the Trust are: (a)(i) to issue
and sell Preferred Securities for cash and use the proceeds of such sales to
acquire from DLJ Debentures issued under the Indenture having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities so issued and sold; (ii) to enter into such agreements and
arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all action, and exercise such discretion, as may be
necessary or desirable in connection therewith and to file such registration
statements or make such other filings under the Securities Act, the Exchange
Act or state securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and the issuance of the Preferred Securities; and (iii) to
issue and sell Common Securities to DLJ for cash and use the proceeds of such
sale to purchase as trust assets an equal aggregate principal amount of
Debentures issued under the Indenture; and (b) except as otherwise limited
herein, to engage in only those other activities necessary, convenient or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets or at any time
while the Securities are outstanding, otherwise undertake (or permit to be
undertaken) any activity that would result in or cause the Trust to be treated
as anything other than a grantor trust for United States federal income tax
purposes.
SECTION 3.6 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
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SECTION 3.7 Title to Property of the Trust.
Except as provided in Section 3.10 with respect to the Debentures and
the Property Account or unless otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an individual undivided beneficial interest in the assets of the Trust.
SECTION 3.8 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, authority and
duty to cause the Trust, and shall cause the Trust, to engage in the following
activities:
(a) to issue Preferred Securities and Common Securities, in each case
in accordance with this Declaration; provided, however, that the Trust may
issue no more than one series of Preferred Securities and no more than one
series of Common Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities and the issuance of Securities
shall be limited to (x) a one-time, simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date and (y) any subsequent
issuance of Preferred Securities on the Option Closing Date pursuant to an
exercise of the over-allotment option granted to underwriters in the
Underwriting Agreement;
(b) in connection with the issuance of the Preferred Securities, at
the direction of the Sponsor, to effect or cause to be effected the filings,
and to execute or cause to be executed, the documents, set forth in Section
3.13 and to execute, deliver and perform on behalf of the Trust the Depositary
Agreement;
(c) to acquire as trust assets Debentures with the proceeds of the
sale of the Preferred Securities and Common Securities; provided, however, that
the Regular Trustees shall cause legal title to all of the Debentures to be
vested in, and the Debentures to be held of record in the name of, the Property
Trustee for the benefit of the Holders of the Preferred Securities and the
Common Securities;
(d) to cause the Trust to enter into the Underwriting Agreement and
such other agreements and arrangements as may be necessary or desirable in
connection with the sale of Preferred Securities to the initial purchasers
thereof and the consummation thereof, and to take
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all action, and exercise all discretion, as may be necessary or desirable in
connection with the consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Special Event; provided, that the Regular Trustees shall
consult with the Sponsor and the Property Trustee before taking or refraining
to take any Ministerial Action in relation to a Special Event;
(f) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including for the purposes
of Section 316(c) of the Trust Indenture Act and with respect to Distributions,
voting rights, redemptions, and exchanges, and to issue relevant notices to
Holders of the Preferred Securities and Common Securities as to such actions
and applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.10(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate to the Property Trustee required by ss.
314(a)(4) of the Trust Indenture Act, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses which are necessary or incidental to carrying
out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities, the Regular Trustees hereby initially
appointing the Property Trustee for such purposes;
(m) to take all actions and perform such duties as may be required of
the Regular Trustee pursuant to the terms of the Securities set forth in
Exhibits B and C hereto;
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(n) to execute all documents or instruments, perform all duties and
powers and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action which may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which the Trust has been
created;
(p) to take all action, not inconsistent with this Declaration or with
applicable law, which the Regular Trustees determine in their discretion to be
reasonable and necessary or desirable in carrying out the activities of the
Trust as set out in this Section 3.8, in order that:
(i) the Trust will not be deemed to be an Investment Company required
to be registered under the Investment Company Act;
(ii) the Trust will not be classified for United States federal income
tax purposes as an association taxable as a corporation or a partnership
and will be treated as a grantor trust for United States federal income tax
purposes; and
(iii) the Trust will comply with any requirements imposed by any
taxing authority on holders of instruments treated as indebtedness for
United States federal income tax purposes;
provided that such action does not adversely affect the interests of Holders;
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust; and
(r) subject to the requirements of Rule 3a-7 and ss. 317(b) of the
Trust Indenture Act, to appoint one or more Paying Agents in addition to the
Property Trustee.
The Regular Trustees must exercise the powers set forth in this
Section 3.8 in a manner which is consistent with the purposes and functions of
the Trust set out in
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Section 3.5 and the Regular Trustees shall not take any action which is
inconsistent with the purposes and functions of the Trust set forth in Section
3.5.
Subject to this Section 3.8, the Regular Trustees shall have none of
the powers nor any of the authority of the Property Trustee set forth in
Section 3.10.
SECTION 3.9 Prohibition of Actions by Trust and Trustees.
The Trust shall not, and the Trustees (including the Property Trustee)
shall cause the Trust not to, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall not:
(a) invest any proceeds received by the Trust from holding the
Debentures but shall promptly distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the Debentures;
(e) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial ownership
of, or beneficial interests in, the Trust other than the Securities;
(g) incur any indebtedness for borrowed money; or
(h) (i) direct the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect to the Debentures, (ii)
waive any past default that is waivable under Section 6.06 of the Indenture,
(iii) exercise any right to rescind or annul any declaration that the principal
of all of the Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, unless in the case of this clause (h) the
Property Trustee shall have received an unqualified opinion of nationally
recognized
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independent tax counsel recognized as expert in such matters to the effect that
such action will not cause the Trust to be classified for United States federal
income tax purposes as an association taxable as a corporation or partnership
and that the Trust will continue to be classified as a grantor trust for United
States federal income tax purposes.
SECTION 3.10 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Article V. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or, if the Property Trustee
does not also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing bank
account (the "Property Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the Holders of the Securities
and on the receipt of payments of funds made in respect of the Debentures
held by the Property Trustee, deposit such funds into the Property Account
and, without any further acts of the Property Trustee or the Regular
Trustees, promptly make payments to the Holders of the Preferred Securities
and Common Securities from the Property Account in accordance with Section
6.1. Funds in the Property Account shall be held uninvested, and without
liability for interest thereon, until disbursed in accordance with this
Declaration. The Property Account shall be an account which is maintained
with a banking institution whose long term unsecured indebtedness is rated
by a "nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act, at
least equal to (but in no event less than "A" or the equivalent) the rating
assigned to the Preferred Securities by a nationally recognized statistical
rating organization;
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(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the redemption of the Preferred Securities
and the Common Securities to the extent the Debentures are redeemed or
mature;
(iii) upon notice of distribution issued by the Regular Trustees in
accordance with the terms of the Preferred Securities and the Common
Securities, engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the distribution pursuant to terms of the
Securities of Debentures to Holders of Securities upon the occurrence of a
Special Event; and
(iv) have the legal power to exercise all of the rights, powers and
privileges of a holder of the Debentures under the Indenture and, if an
Event of Default occurs and is continuing, the Property Trustee, subject to
Section 2.6(b), shall for the benefit of the Holders of the Securities,
enforce its rights as holder of the Debentures under the Indenture, subject
to the rights of the Holders of the Preferred Securities pursuant to the
terms of this Declaration, the Business Trust Act and the Trust Indenture
Act.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities set forth in Exhibits B and C hereto.
(e) The Property Trustee shall take any Legal Action which arises out
of or in connection with an Event of Default or the Property Trustee's duties
and obligations under this Declaration, the Business Trust Act or the Trust
Indenture Act.
(f) All moneys deposited in the Property Account, and all Debentures
held by the Property Trustee for the benefit of the Holders of the Securities
will not be subject to any right, charge, security interest, lien or claim of
any kind in favor of, or for the benefit of the Property Trustee or its agents
or their creditors.
(g) The Property Trustee shall, within 90 days after the occurrence of
a default with respect to the Securities, transmit by mail, first class postage
prepaid, to the holders of the Securities, as their names and addresses appear
upon the register, notice of all defaults with respect to the Securities known
to the Property Trustee, unless such defaults shall have been cured before
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the giving of such notice (the term "defaults" for the purposes of this Section
3.10(g) being hereby defined to be an Indenture Event of Default, not including
any periods of grace provided for in the Indenture and irrespective of the
giving of any notice provided therein); provided, that, except in the case of
default in the payment of the principal of (or premium, if any) or interest on
any of the Debentures, the Property Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers, of the Property
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities. The Property Trustee shall not be
deemed to have knowledge of any default, except (i) a default in the payment of
principal, premium or interest on the Debentures or (ii) any default as to
which the Property Trustee shall have received written notice or a Responsible
Officer charged with the administration of this Declaration shall have obtained
written notice.
(h) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds thereof
distributed to the Holders of Securities pursuant to the terms of the
Securities; or
(ii) a Successor Property Trustee has been appointed and accepted that
appointment in accordance with Article V.
(i) The Property Trustee shall act as paying agent in respect of the
Common Securities and, if the Preferred Securities are not in book entry only
form, the Preferred Securities and, subject to Section 3.8(r), may authorize
one or more Persons (each, a "Paying Agent") to pay Distributions, redemption
payments or liquidation payments on behalf of the Trust with respect to the
Preferred Securities. Any such Paying Agent shall comply with ss. 317(b) of the
Trust Indenture Act. Any Paying Agent may be removed by the Property Trustee,
after consultation with the Regular Trustees, at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee, subject to Section 3.8(r).
(j) The Property Trustee shall give prompt written notice to the
Holders of the Securities of any notice received by it from DLJ of its election
to defer payments of interest on the Debentures by extending the interest
payment period with respect thereto.
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(k) Subject to this Section 3.10, the Property Trustee shall have none
of the powers or the authority of the Regular Trustees set forth in Section
3.8.
(l) The Property Trustee shall exercise the powers, duties and rights
set forth in this Section 3.10 and Section 3.12 in a manner which is consistent
with the purposes and functions of the Trust set out in Section 3.5, and the
Property Trustee shall not take any action which is inconsistent with the
purposes and functions of the Trust set forth in Section 3.5.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.1(a)(3), the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees and the Property Trustee described in
this Declaration. Except as set forth in Section 5.1(a)(3), the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of ss. 3807 of the Business Trust Act. No implied covenants or
obligations shall be read into this Declaration against the Delaware Trustee.
SECTION 3.12 Certain Rights and Duties of the Property Trustee.
(a) The Property Trustee, before the occurrence of an Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Declaration, and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.6), the Property Trustee
shall exercise such of the rights and powers vested in it by this Declaration,
and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
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(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Declaration,
and the Property Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Property Trustee;
and
(B) in the absence of bad faith on the part of the Property Trustee,
the Property Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Declaration;
but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders as provided herein relating to the time,
method and place of conducting any proceeding for any remedy available to
the Property Trustee hereunder or under the Indenture, or exercising any
trust or power conferred upon the Property Trustee under this Declaration;
and
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable ground
for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or adequate
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indemnity against such risk or liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.12(a) and (b):
(i) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part and, if the Trust is excluded from the
definition of Investment Company solely by means of Rule 3a-7, subject to
the requirements of Rule 3a-7, request and rely upon a certificate, which
shall comply with the provisions of ss. 314(e) of the Trust Indenture Act,
signed by any two of the Regular Trustees or by an authorized officer of
the Sponsor, as the case may be;
(ii) The Property Trustee (A) may consult with counsel (which may be
counsel to the Sponsor or any of its Affiliates and may include any of its
employees) selected by it in good faith and with due care and the written
advice or opinion of such counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice and opinion and (B) shall have
the right at any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(iii) The Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Property Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed
by it in good faith and with due care;
(iv) The Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or
direction of any Holders, unless such Holders shall have offered to the
Property Trustee reasonable security and indemnity against the costs,
expenses (including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction;
provided that nothing
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contained in this clause (iv) shall relieve the Property Trustee of the
obligation, upon the occurrence of an Event of Default (which has not been
cured or waived) to exercise such of the rights and powers vested in it by
this Declaration, and to use the same degree of care and skill in this
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs; and
(v) Any action taken by the Property Trustee or its agents hereunder
shall bind the Holders of the Securities and the signature of the Property
Trustee or its agents alone shall be sufficient and effective to perform
any such action; and no third party shall be required to inquire as to the
authority of the Property Trustee to so act, or as to its compliance with
any of the terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking such
action.
SECTION 3.13 Registration Statement and Related Matters.
In accordance with the Original Declaration, DLJ and the Trustees have
authorized and directed, and hereby confirm the authorization of, DLJ, as the
sponsor of the Trust, (i) to file with the Commission and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (File No.
333-07657) (the "1933 Act Registration Statement") including any amendments
thereto and any further pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act
of the Preferred Securities of the Trust and (b) a Registration Statement on
Form 8-A or other appropriate form (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12(b)
of the Exchange Act; (ii) to file with the New York Stock Exchange and execute
on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be listed on the
New York Stock Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as DLJ on behalf of the
Trust, may deem necessary or desirable and (iv) to execute on behalf of the
Trust the Underwriting Agreement. In the event that any filing referred to in
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clauses (i)-(iii) above is required by the rules and regulations of the
Commission, the New York Stock Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by the Trustees, the Regular Trustees, in
their capacities as Trustees of the Trust, are hereby authorized and directed
to join in any such filing and to execute on behalf of the Trust any and all of
the foregoing, it being understood that the Property Trustee and the Delaware
Trustee, in their capacities as Trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or state securities or blue sky laws. In connection with all of
the foregoing, DLJ and each Trustee, solely in its capacity as Trustee of the
Trust, have constituted and appointed, and hereby confirm the appointment of,
John S. Chalsty, Anthony F. Daddino, Michael A. Boyd and Thomas E. Siegler and
each of them, as his, her or its, as the case may be, true and lawful
attorneys-in-fact, and agents, with full power of substitution and
resubstitution, for DLJ or such Trustee or in DLJ's or such Trustee's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement
and the 1934 Act Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as DLJ or such
Trustee might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or his or her
substitute or substitutes, shall do or cause to be done by virtue hereof.
SECTION 3.14 Filing of Amendments to Certificate of Trust.
The Certificate of Trust as filed with the Secretary of State of the
State of Delaware on June 19, 1996 is attached hereto as Exhibit A. On or after
the date of execution of this Declaration, the Trustees shall cause the filing
with the Secretary of State of the State of Delaware of such amendments to the
Certificate of Trust as the Trustees shall deem necessary or desirable.
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SECTION 3.15 Execution of Documents by Regular Trustees.
Unless otherwise determined by the Regular Trustees and except as
otherwise required by the Business Trust Act with respect to the Certificate of
Trust or otherwise, a majority of, or if there are only two, both of, the
Regular Trustees are authorized to execute and deliver on behalf of the Trust
any documents which the Regular Trustees have the power and authority to
execute or deliver pursuant to this Declaration.
SECTION 3.16 Trustees Not Responsible for Recitals or
Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.17 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Article
VIII hereof, shall have existence until ___________, 204_.
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities by Sponsor.
On the Closing Date the Sponsor will purchase all of the Common
Securities issued by the Trust at the same time as the Preferred Securities to
be issued on such date are issued, such purchase to be in an amount equal to 3%
of the total capital of the Trust (including for this purpose the maximum
amount of Preferred Securities, if any, which may be issued on the Option
Closing Date pursuant to the exercise of the overallotment option set forth in
the Underwriting Agreement).
SECTION 4.2 Expenses.
(a) In connection with the purchase of the Debentures by the Trust,
the Sponsor, in its capacity as Sponsor and not as a Holder, shall be
responsible for and
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shall pay for all debts and obligations (other than with respect to the
Securities) and all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the issuance
of the Preferred Securities to initial purchasers thereof, the fees and
expenses (including reasonable counsel fees and expenses) of the Trustees
(including any amounts payable under Article X), the costs and expenses
relating to the operation of the Trust, including without limitation, costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the disposition of Trust assets).
(b) In connection with the purchase of the Debentures by the Trust,
the Sponsor, in its capacity as Sponsor and not as a Holder, will pay any and
all taxes (other than United States withholding taxes attributable to the Trust
or its assets) and all liabilities, costs and expenses with respect to such
taxes of the Trust.
(c) The Sponsor's obligations under this Section 4.2 shall be for the
benefit of, and shall be enforceable by, any Person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.2 directly against the Sponsor and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before
proceeding against the Sponsor. The Sponsor agrees to execute such additional
agreements as may be necessary or desirable in order to give full effect to the
provisions of this Section 4.2.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Qualifications.
(a) The number of Trustees initially shall be five (5). At any time
(i) before the issuance of the Securities, the Sponsor may, by written
instrument, increase or decrease the number of, and appoint, remove and replace
the, Trustees, and (ii) after the issuance of the Securities the number of
Trustees may be increased or decreased solely by, and Trustees may be
appointed, removed or replaced
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solely by, vote of Holders of Common Securities representing a Majority in
liquidation amount of the Common Securities voting as a class; provided that in
any case:
(1) the number of Trustees shall be at least five (5) unless the
Trustee that acts as the Property Trustee also acts as the Delaware
Trustee, in which cases the number of Trustees shall be at least three (3);
(2) at least a majority of the Trustees shall at all times be
officers, directors or employees of DLJ;
(3) if required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be either a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware and otherwise is permitted to
act as a Trustee hereunder under the laws of the State of Delaware, except
that if the Property Trustee has its principal place of business in the
State of Delaware and otherwise is permitted to act as a Trustee hereunder
under the laws of the State of Delaware, then the Property Trustee shall
also be the Delaware Trustee and Section 3.9 shall have no application; and
(4) there shall at all times be a Property Trustee hereunder which
shall satisfy the requirements of Section 5.1(c).
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed
representatives.
(b) The initial Regular Trustees shall be:
Anthony F. Daddino
Charles J. Hendrickson
Thomas E. Siegler
c/o Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
(c) There shall at all times be one Trustee which shall act as
Property Trustee. In order to act as Property Trustee hereunder, such Trustee
shall:
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(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising
or examining authority referred to above, then for the purposes of this
Section 5.1(c)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published; and
(iii) if the Trust is excluded from the definition of an Investment
Company solely by reason of Rule 3a-7 and to the extent Rule 3a-7 requires
a trustee having certain qualifications to hold title to the "eligible
assets" (as defined in Rule 3a-7) of the Trust, the Property Trustee shall
possess those qualifications.
If at any time the Property Trustee shall cease to satisfy the
requirements of clauses (i)-(iii) above, the Property Trustee shall immediately
resign in the manner and with the effect set out in Section 5.2(d). If the
Property Trustee has or shall acquire any "conflicting interest" within the
meaning of ss. 310(b) of the Trust Indenture Act, the Property Trustee and the
Holders of the Common Securities (as if such Holders were the obligor referred
to in ss. 310(b) of the Trust Indenture Act) shall in all respects comply with
the provisions of ss. 310(b) of the Trust Indenture Act. The Preferred
Guarantee shall be deemed to be specifically described in this Declaration for
the purposes of clause (i) of the first proviso contained in ss. 310(b) of the
Trust Indenture Act.
The initial Trustee which shall serve as the Property Trustee is The
Bank of New York, a New York banking corporation, whose address is as set forth
in Section 14.1(b).
(d) The initial Trustee which shall serve as the Delaware Trustee is
The Bank of New York (Delaware), a
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Delaware banking corporation, whose address is as set forth in Section 14.1(c).
(e) Any action taken by Holders of Common Securities pursuant to this
Article V shall be taken at a meeting of Holders of Common Securities convened
for such purpose or by written consent as provided in Section 12.2.
(f) No amendment may be made to this Section 5.1 which would change
any rights with respect to the number, existence or appointment and removal of
Trustees, except with the consent of each Holder of Common Securities.
SECTION 5.2 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.2(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of the Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of the Securities by vote of the Holders
of a Majority in liquidation amount of the Common Securities
voting as a class.
(b) (i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.2(a) until a Successor
Property Trustee possessing the qualifications to act as
Property Trustee under Section 5.1(c) has been appointed and
has accepted such appointment by written instrument executed
by such Successor Property Trustee and delivered to the
Regular Trustees, the Sponsor and the Property Trustee being
removed; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.2(a) until a successor
Trustee possessing the qualifications to act as Delaware
Trustee under Section 5.1(a)(3) (a "Successor Delaware
Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees, the
Sponsor and the Delaware Trustee being removed.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation.
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(d) Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the Trustee and delivered to the Sponsor and the
Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the Property
Trustee shall be effective until:
(A) a Successor Property Trustee possessing the qualifications
to act as Property Trustee under Section 5.1(c) has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee;
or
(B) if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7, until the
assets of the Trust have been completely liquidated and the
proceeds thereof distributed to the Holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has
been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall have
been appointed and accepted appointment as provided in this Section 5.2
within 60 days after delivery to the Sponsor and the Trust of a Resignation
Request, the resigning Property Trustee or Delaware Trustee may petition
any court of competent jurisdiction for appointment of a Successor Property
Trustee or Successor Delaware Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a Successor
Property
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Trustee or Successor Delaware Trustee, as the case may be.
SECTION 5.3 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1 or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy
shall be filled with a Trustee appointed in accordance with the requirements of
this Article V.
SECTION 5.4 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee, or
any one of them, shall not operate to annul the Trust. Whenever a vacancy in
the number of Regular Trustees shall occur until such vacancy is filled as
provided in this Article V, the Regular Trustees in office, regardless of their
number, shall have all the powers granted to the Regular Trustees and shall
discharge all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 5.5 Meetings.
Meetings of the Regular Trustees shall be held from time to time upon
the call of any Trustee. Regular meetings of the Regular Trustees may be held
at a time and place fixed by resolution of the Regular Trustees. Notice of any
in-person meeting of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any telephonic
meeting of the Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before such meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular
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Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter; provided that a Quorum is present, or without a meeting
by the unanimous written consent of the Regular Trustees.
SECTION 5.6 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any registration statement or amendment
thereto or other document or schedule filed with the Commission or making any
other governmental filing (including, without limitation to filings referred to
in Section 3.13).
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive periodic distributions, redemption payments and
liquidation distributions in accordance with the applicable terms of the
relevant Holder's Securities ("Distributions"). Distributions shall be made to
the Holders of Preferred Securities and Common Securities in accordance with
the terms of the Securities as set forth in Exhibits B and C hereto. If and to
the extent that DLJ makes a payment of interest (including Compounded Interest
(as defined in the Indenture)), premium and principal on the Debentures held by
the Property Trustee (the amount of any such payment being a "Payment Amount"),
the Property Trustee shall and is directed to promptly make a Distribution of
the Payment Amount to Holders in accordance with the terms of the Securities as
set forth in Exhibits B and C hereto.
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ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall issue on behalf of the Trust securities
in fully registered form representing undivided beneficial interests in the
assets of the Trust in accordance with Section 7.1(b) and for the consideration
specified in Section 3.3.
(b) The Regular Trustees shall issue on behalf of the Trust one class
of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Exhibit B (the
"Preferred Securities") which terms are incorporated by reference in, and made
a part of, this Declaration as if specifically set forth herein, and one class
of common securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Exhibit C (the "Common
Securities") which terms are incorporated by reference in, and made a part of,
this Declaration as if specifically set forth herein. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by the
Regular Trustees (or if there are more than two Regular Trustees by any two of
the Regular Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee. Typographical and
other minor errors or defects in any such reproduction of any such signature
shall not affect the validity of any Certificate. In case any Regular Trustee
of the Trust who shall have signed any of the Certificates shall cease to be
such Regular Trustee before the Certificate so signed shall be delivered by the
Trust, such Certificate nevertheless may be delivered as though the person who
signed such Certificate had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons as, at the
actual date of the execution of such Certificate, shall be the Regular Trustees
of the Trust, although at the date of the execution and delivery of the
Declaration any such person was not such a Regular Trustee. Certificates shall
be printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the Regular Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks of
identification or designation and such
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legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which
Securities may be listed, or to conform to usage. Pending the preparation of
definitive Certificates, the Regular Trustees on behalf of the Trust may
execute temporary Certificates (printed, lithographed or typewritten), in
substantially the form of the definitive Certificates in lieu of which they are
issued, but with such omissions, insertions and variations as may be
appropriate for temporary Certificates, all as may be determined by the Regular
Trustees. Each temporary Certificate shall be executed by the Regular Trustees
on behalf of the Trust upon the same conditions and in substantially the same
manner, and with like effect, as definitive Certificates. Without unnecessary
delay, the Regular Trustees on behalf of the Trust will execute and furnish
definitive Certificates and thereupon any or all temporary Certificates may be
surrendered to the transfer agent and registrar in exchange therefor (without
charge to the Holders). Each Certificate whether in temporary or definitive
form shall be countersigned by the manual or facsimile signature of an
authorized signatory of the Person acting as registrar and transfer agent for
the Securities, which shall initially be the Property Trustee.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by this Declaration.
(g) Upon issuance of the Securities as provided in this Declaration,
the Regular Trustees on behalf of the Trust shall return to DLJ the $10
constituting initial trust assets as set forth in the Original Declaration.
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ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
This Declaration and the Trust shall terminate and be of no further
force or effect when:
(i) all of the Securities shall have been called for redemption and
the amounts necessary for redemption thereof shall have been paid to the
Holders of Securities in accordance with the terms of the Securities; or
(ii) all of the Debentures shall have been distributed to the Holders
of Securities in exchange for all of the Securities in accordance with the
terms of the Securities; or
(iii) upon the expiration of the term of the Trust as set forth in
Section 3.17,
and a certificate of cancellation is filed by the Trustees with the Secretary
of State of the State of Delaware. The Trustees shall so file such a
certificate as soon as practicable after the occurrence of an event referred to
in this Section 8.1.
The provisions of Sections 3.12 and 4.2 and Article X shall survive
the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration. Any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, DLJ and any Related Party may only
transfer Common Securities to DLJ or a Related Party; provided that any such
transfer shall be subject to the condition that the transferor shall have
obtained (1) either a ruling from the Internal Revenue
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Service or an unqualified written opinion addressed to the Trust and delivered
to the Trustees of nationally recognized independent tax counsel experienced in
such matters to the effect that such transfer will not (i) cause the Trust to
be treated as issuing a class of interests in the Trust differing from the
class of interests represented by the Common Securities originally issued to
DLJ, (ii) result in the Trust acquiring or disposing of, or being deemed to
have acquired or disposed of, an asset, or (iii) result in or cause the Trust
to be treated as anything other than a grantor trust for United States federal
income tax purposes and (2) an unqualified written opinion addressed to the
Trust and delivered to the Trustees of a nationally recognized independent
counsel experienced in such matters that such transfer will not cause the Trust
to be an Investment Company or controlled by an Investment Company.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges which may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to
be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by this
Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
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Certificate on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Securities Certificates, on original issuance (including
Preferred Securities, if any, issued on the Option Closing Date pursuant to the
exercise of the overallotment option set forth in the Underwriting Agreement),
will be issued in the form of one or more, fully registered, global Preferred
Security Certificates (each a "Global Certificate"), to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the
Trust in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 9.7. Unless and until
definitive, fully registered Preferred Security Certificates (the "Definitive
Preferred Security Certificates") have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7:
(i) the provisions of this Section 9.4 shall be in full force and
effect;
(ii) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of the Preferred Securities and the
sole holder of the Global Certificates and, except as set forth herein or
in Rule 3a-7 with respect to the Property Trustee, shall have no obligation
to the Preferred Security Beneficial Owners;
(iii) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(iv) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants. DTC
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will make book entry transfers among the Clearing Agency Participants
and receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants.
SECTION 9.5 Notices to Holders of Certificates.
Whenever a notice or other communication to the Holders is required to
be given under this Declaration, unless and until Definitive Preferred Security
Certificates shall have been issued pursuant to Section 9.7, the relevant
Trustees shall give all such notices and communications, specified herein to be
given to Preferred Securities Holders, to the Clearing Agency and, with respect
to any Preferred Security Certificate registered in the name of a Clearing
Agency or the nominee of a Clearing Agency, the Trustees shall, except as set
forth herein or in Rule 3a-7 with respect to the Property Trustee, have no
notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to the Preferred Securities.
SECTION 9.7 Definitive Preferred Securities Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.6 or (ii) the Regular Trustees elect after consultation
with the Sponsor to terminate the book entry system through the Clearing Agency
with respect to the Preferred Securities, then (x) Definitive Preferred
Security Certificates shall be prepared by the Regular Trustees on behalf of
the Trust with respect to such Preferred Securities and (y) upon surrender of
the Global Certificates by the Clearing Agency, accompanied by registration
instructions, the Regular Trustees shall cause definitive Preferred Security
Certificates to be delivered to Preferred Security Beneficial Owners in
accordance with the instructions of the Clearing Agency. Neither the Trustees
nor the Trust shall be liable for any delay in delivery of such instructions
and each of them may conclusively rely on and shall be protected in relying on,
such instructions.
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SECTION 9.8 Mutilated, Destroyed, Lost
or Stolen Certificates.
If (a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b)
there shall be delivered to the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
any two Regular Trustees on behalf of the Trust shall execute and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 9.8, the Regular Trustees
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence (or, in the
case of the Property Trustee, negligence) or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence
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and who has been selected with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses or any other facts pertinent
to the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the Holders of
Securities, in their capacities as Holders, shall be entitled to the same
limitation of liability that is extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
SECTION 10.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by
this Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence (or, in the case of the
Property Trustee, negligence) or willful misconduct with respect to such acts
or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced
by the Sponsor prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Sponsor of an undertaking by or on
behalf of the Indemnified Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be indemnified as authorized in
Section 10.2(a).
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ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books and records
of the Trust, together with a copy of this Declaration and a certified copy of
the Certificate of Trust, or any amendment thereto, shall at all times be
maintained at the principal office of the Trust and shall be open for
inspection for any examination by any Holder or its duly authorized
representative for any purpose reasonably related to its interest in the Trust
during normal business hours.
(b) The Regular Trustees shall, as soon as available after the end of
each Fiscal Year of the Trust, cause to be prepared and mailed to each Holder
of Securities unaudited financial statements of the Trust for such Fiscal Year,
prepared in accordance with generally accepted accounting principles; provided
that if the Trust is required to comply with the periodic reporting
requirements of Sections 13(a) or 15(d) of the Exchange Act, such financial
statements for such Fiscal Year shall be examined and reported on by a firm of
independent certified public accountants selected by the Regular Trustees
(which firm may be the firm used by the Sponsor).
(c) The Regular Trustees shall cause to be prepared and mailed to each
Holder of Securities, an annual United States federal income tax information
statement, on such form as is required by the Code, containing such information
with regard to the Securities held by each Holder as is required by the Code
and the Treasury Regulations. Notwithstanding any right under the Code to
deliver any such statement at a later date, the Regular Trustees shall endeavor
to deliver all such statements
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within 30 days after the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be prepared and filed with the
appropriate taxing authority, an annual United States federal income tax
return, on such form as is required by the Code, and any other annual income
tax returns required to be filed by the Regular Trustees on behalf of the Trust
with any state or local taxing authority, such returns to be filed as soon as
practicable after the end of each Fiscal Year of the Trust.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly
to the Property Account and no other funds from the Trust shall be deposited in
the Property Account. The sole signatories for such accounts shall be
designated by the Regular Trustees; provided, however, that the Property
Trustee shall designate the sole signatories for the Property Account.
SECTION 11.4 Withholding.
The Trust and the Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to
each Holder, and any representations and forms as shall reasonably be requested
by the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Trust shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of
any claimed overwithholding, Holders shall be limited to an action against the
applicable jurisdiction.
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If the amount to be withheld was not withheld from a Distribution, the Trust
may reduce subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and
only by, a written instrument executed by a majority of the Regular Trustees;
provided, however, that (i) no amendment to this Declaration shall be made
unless the Regular Trustees shall have obtained (A) either a ruling from the
Internal Revenue Service or a written unqualified opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that such amendment will not cause the Trust to be classified for United States
federal income tax purposes as an association taxable as a corporation or a
partnership and to the effect that the Trust will continue to be treated as a
grantor trust for purposes of United States federal income taxation and (B) a
written unqualified opinion of nationally recognized independent counsel
experienced in such matters to the effect that such amendment will not cause
the Trust to be an Investment Company which is required to be registered under
the Investment Company Act, (ii) at such time after the Trust has issued any
Securities which remain outstanding, any amendment which would adversely affect
the rights, privileges or preferences of any Holder of Securities may be
effected only with such additional requirements as may be set forth in the
terms of such Securities, (iii) Section 4.2, Section 9.1(c) and this Section
12.1 shall not be amended without the consent of all of the Holders of the
Securities, (iv) no amendment which adversely affects the rights, powers and
privileges of the Property Trustee shall be made without the consent of the
Property Trustee, (v) Article IV shall not be amended without the consent of
the Sponsor, and (vi) the rights of Holders of Common Securities under Article
V to increase or decrease the number of, and to appoint, replace or remove,
Trustees shall not be amended without the consent of each Holder of Common
Securities.
(b) Notwithstanding Section 12.2(a)(ii), this Declaration may be
amended without the consent of the Holders of the Securities to (i) cure any
ambiguity, (ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of
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this Declaration, (iii) to add to the covenants, restrictions or obligations of
the Sponsor, and (iv) to conform to any changes in Rule 3a- 7 or any change in
interpretation or application of Rule 3a-7 by the Commission, which amendment
does not adversely affect the rights, preferences or privileges of the Holders.
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of Preferred Securities and/or Common
Securities may be called at any time by the Regular Trustees (or as provided in
the terms of the Securities) to consider and act on any matter on which Holders
of such class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of Holders of Preferred Securities or Common
Securities, if directed to do so by Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of Securities exercising the right to call a meeting and only those
specified Certificates shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provision shall apply to meetings of Holders of
Securities:
(i) Notice of any such meeting shall be given by mail to all the
Holders of Securities having a right to vote thereat not less than 7 days
nor more than 60 days prior to the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or required
under this Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such vote, consent
or approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting forth the action so
taken is signed by Holders of Securities owning not less than the minimum
aggregate
47
<PAGE>
liquidation amount of Securities that would be necessary to authorize or
take such action at a meeting at which all Holders of Securities having a
right to vote thereon were present and voting. Prompt notice of the taking
of action without a meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing. The Regular Trustees
may specify that any written ballot submitted to the Holders of Securities
for the purpose of taking any action without a meeting shall be returned to
the Trust within the time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of a Security is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of the
Security executing it. Except as otherwise provided herein or in the terms
of the Securities, all matters relating to the giving, voting or validity
of proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder, as
if the Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be conducted
by the Regular Trustees or by such other Person that the Regular Trustees
may designate.
(iv) Unless otherwise provided in the Business Trust Act, this
Declaration or the rules of any stock exchange on which the Preferred
Securities are then listed or admitted for trading, the Regular Trustees,
in their sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any Holders
of Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of any
such right to vote.
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ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
(a) The Trustee which acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(i) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
State of its incorporation, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of,
this Declaration.
(ii) The execution, delivery and performance by the Property Trustee
of this Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of this Declaration by
the Property Trustee does not conflict with or constitute a breach of the
Charter or By-laws of the Property Trustee.
(iv) No consent, approval or authorization of, or registration with or
notice to, any banking authority which supervises or regulates the Property
Trustee is required for the execution, delivery or performance by the
Property Trustee, of this Declaration.
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(v) The Property Trustee satisfies the qualifications set forth in
Section 5.1(c).
(b) The Trustee which acts as initial Delaware Trustee represents and
warrants to the Trust and the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment
as Delaware Trustee, that it satisfies the qualifications set forth in Section
5.1(a)(3).
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the
Regular Trustees on behalf of the Trust may give notice of to the Holders
of the Securities):
DLJ Capital Trust [ ]
c/o Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Attention: Anthony F. Daddino
Charles J. Hendrickson
Thomas E. Siegler,
Trustees
Facsimile No: (212) 892-7272
(b) if given to the Property Trustee, at the mailing address of the
Property Trustee set forth below (or such other address as the Property
Trustee may give notice of to the Holders of the Securities):
The Bank of New York
101 Barclay Street
Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee
Administration
Facsimile No: 212-815-5915
50
<PAGE>
(c) if given to the Delaware Trustee, at the mailing address of the
Delaware Trustee set forth below (or such other address as the Delaware
Trustee may give notice of to the Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center
Newark, DE 19711
Attention: Delaware Trustee,
Corporate Trust Administration
With a copy to:
The Bank of New York
101 Barclay Street, Floor 21W
New York, NY 10286
Attention: Corporate Trust Trustee
Administration
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder
of the Common Securities may give notice to the Trust):
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Attention: Corporate Secretary
Facsimile No: 212-892-8216
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
A copy of any notice to the Property Trustee or the Delaware Trustee
shall also be sent to the Trust. All notices shall be deemed to have been
given, when received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 14.2 Undertaking for Costs.
All parties to this Declaration agree, and each Holder of any
Securities by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Declaration, or in any suit
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<PAGE>
against the Property Trustee for any action taken or omitted by it as Property
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 14.2 shall not apply to any suit instituted by the Property Trustee, to
any suit instituted by any Holder of Preferred Securities, or group of Holders
of Preferred Securities, holding more than 10% in aggregate liquidation amount
of the outstanding Preferred Securities, or to any suit instituted by any
Holder of Preferred Securities for the enforcement of the payment of the
principal of (or premium, if any) or interest on the Debentures, on or after
the respective due dates expressed in such Debentures.
SECTION 14.3 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.6 Counterparts.
This Declaration may contain more than one counterpart of the
signature pages and this Declaration may be executed by the affixing of the
signature of the Sponsor and each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same
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force and effect as though all of the signers had signed a single signature
page.
SECTION 14.7 Intention of the Parties.
It is the intention of the parties hereto that the Trust not be
classified for United States federal income tax purposes as an association
taxable as a corporation or partnership but that the Trust be treated as a
grantor trust for United States federal income tax purposes. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
SECTION 14.8 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
53
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
Donaldson, Lufkin & Jenrette, Inc.,
as Sponsor
By:
-------------------------------
Name:
Title:
- ----------------------------------
Anthony F. Daddino
as Trustee
- ----------------------------------
Charles J. Hendrickson
as Trustee
- ----------------------------------
Thomas E. Siegler
as Trustee
The Bank of New York,
as Property Trustee
By:
-------------------------------
Name:
Title:
The Bank of New York (Delaware),
as Delaware Trustee
By:
-------------------------------
Name:
Title:
54
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of _____________,
199_, personally appeared [ ] (on behalf of Donaldson, Lufkin &
Jenrette, Inc.) and Anthony F. Daddino, Charles J. Hendrickson and Thomas E.
Siegler, each known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer, as the case may be, whose
name is subscribed to the foregoing instrument, and each acknowledged to me
that he executed the same as the act of such are for the purposes and
consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________,
199_.
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
---------------------
Commission Expires:
-------------
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of _____________,
199_, personally appeared [Nancy B. Gill] of The Bank of New York known to me
(or proved to me by introduction upon the oath of a person known to me) to be
the person and officer whose names are subscribed to the foregoing instrument,
and acknowledged to me that she executed the same as the act of such trust for
the purposes and consideration herein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________,
199_.
(SEAL)
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
---------------------
Commission Expires:
-------------
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of _____________,
199_, personally appeared [Catherine Marsh] of The Bank of New York (Delaware)
known to me (or proved to me by introduction upon the oath of a person known to
me) to be the person and officer whose names are subscribed to the foregoing
instrument, and acknowledged to me that she executed the same as the act of
such trust for the purposes and consideration herein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________,
199_.
(SEAL)
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
---------------------
Commission Expires:
-------------
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
DLJ CAPITAL TRUST [ ]
THIS Certificate of Trust of DLJ Capital Trust [ ] (the "Trust"),
dated June 14, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. Code ss. 3801 et seq.).
1. Name. The name of the business trust being formed hereby is DLJ
Capital Trust [ ].
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is The
Bank of New York (Delaware), a Delaware banking corporation, White Clay Center,
Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware),
as Delaware Trustee
By: /s/ Catherine Marsh
--------------------------------
Name: Catherine Marsh
Title: President and COO
<PAGE>
The Bank of New York,
as Property Trustee
By:/s/ Nancy B. Gill
--------------------------------
Name: Nancy B. Gill
Title: Assistant Treasurer
/s/ Anthony F. Daddino
-----------------------------------
Anthony F. Daddino,
as Trustee
/s/ Charles J. Hendrickson
-----------------------------------
Charles J. Hendrickson,
as Trustee
/s/ Thomas E. Siegler
-----------------------------------
Thomas E. Siegler,
as Trustee
<PAGE>
EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust of DLJ Capital Trust [ ] dated as of ____________, 199__ (as amended from
time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. DESIGNATION AND NUMBER. Preferred Securities of the Trust with an
aggregate liquidation amount in the assets of the Trust of
___________________________________________ Dollars ($___________) (including
up to _______________________________________________ Dollars ($___________)
issuable upon exercise of the overallotment option set forth in the
Underwriting Agreement) and a liquidation amount in the assets of the Trust of
$25 per Preferred Security, are hereby designated as "____% Preferred Trust
Securities". The Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form attached hereto as Annex I, with
such changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of any stock
exchange on which the Preferred Securities are listed. In connection with the
issuance and sale of the Preferred Securities and the Common Securities, the
Trust will purchase as trust assets Debentures of DLJ having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities and Common Securities so issued and bearing interest at an annual
rate equal to the annual Distribution rate on the Preferred Securities and
Common Securities and having payment and redemption provisions which correspond
to the payment and redemption provisions of the Preferred Securities and Common
Securities.
<PAGE>
2. DISTRIBUTIONS. (a) Distributions payable on each Preferred Security
will be fixed at a rate per annum of ____% (the "Coupon Rate") of the stated
liquidation amount of $25 per Preferred Security. Distributions in arrears for
more than one month will bear interest at the rate per annum of ____% thereof
(to the extent permitted by law), compounded monthly. The term "Distributions"
as used in these terms means such periodic cash distributions and any such
interest payable unless otherwise stated. A Distribution will be made by the
Property Trustee only to the extent that interest payments are made in respect
of the Debentures held by the Property Trustee. The amount of Distributions
payable for any period will be computed for any monthly Distribution period on
the basis of a 360-day year of twelve 30-day months, and for any Distribution
period shorter or longer than a 30-day month Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed.
(b) Distributions on the Preferred Securities will be cumulative, will
accrue from ___________, 199__ and will be payable monthly in arrears, on the
last day of each month commencing on ________________, 199__, except as
otherwise described below, but only if and to the extent that interest payments
are made in respect of the Debentures held by the Property Trustee. So long as
DLJ shall not be in default in the payment of interest on the Debentures, DLJ
has the right under the Indenture for the Debentures to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 60 consecutive monthly interest periods
(each, an "Extension Period") and, as a consequence, monthly Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at the rate of ____% per annum, compounded monthly during any such
Extension Period. Prior to the termination of any such Extension Period, DLJ
may further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
60 consecutive monthly interest periods. Upon the termination of any Extension
Period and the payment of all amounts then due, DLJ may commence a new
Extension Period, subject to the above requirements. Payments of accrued
Distributions will be payable to Holders of Preferred Securities as they appear
on the books and records of the Trust on the first record date after the end of
the Extension Period.
(c) Distributions on the Preferred Securities will be payable promptly
by the Property Trustee (or other
2
<PAGE>
Paying Agent) upon receipt of immediately available funds to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book-entry only form,
the relevant record dates shall be one business day prior to the relevant
Distribution date, and if the Preferred Securities are no longer in book-entry
only form, the relevant record dates will be the fifteenth (15th) day of the
month prior to the relevant Distribution date, which record and payment dates
correspond to the record and interest payment dates on the Debentures.
Distributions payable on any Preferred Securities that are not punctually paid
on any Distribution payment date as a result of DLJ having failed to make the
corresponding interest payment on the Debentures will forthwith cease to be
payable to the person in whose name such Preferred Security is registered on
the relevant record date, and such defaulted Distribution will instead be
payable to the person in whose name such Preferred Security is registered on
the special record date established by the Regular Trustees, which record date
shall correspond to the special record date or other specified date determined
in accordance with the Indenture; provided, however, that Distributions shall
not be considered payable on any Distribution payment date falling within an
Extension Period unless DLJ has elected to make a full or partial payment of
interest accrued on the Debentures on such Distribution payment date. Subject
to any applicable laws and regulations and the provisions of the Declaration,
each payment in respect of the Preferred Securities will be made as described
paragraph 9 hereof. If any date on which Distributions are payable on the
Preferred Securities is not a Business Day, then payment of the Distribution
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
(d) All Distributions paid with respect to the Preferred Securities
and the Common Securities will be paid Pro Rata to the Holders thereof entitled
thereto. If an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities with respect to
Distributions.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money or
property shall be distributed Pro Rata among the Holders of the Preferred
Securities and Common Securities.
3
<PAGE>
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Preferred Securities and Common Securities at the date of
the dissolution, winding-up or termination, as the case may be, will be
entitled to receive Pro Rata solely out of the assets of the Trust available
for distribution to Holders of Preferred Securities and Common Securities after
satisfaction of liabilities to creditors, an amount equal to the aggregate of
the stated liquidation amount of $25 per Preferred Security and Common Security
plus accrued and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"), unless, in connection with such
dissolution, winding-up or termination, and after satisfaction of liabilities
to creditors, Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of such Preferred Securities and Common
Securities and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, such Preferred Securities and Common
Securities, shall be distributed Pro Rata to the Holders of the Preferred
Securities and Common Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Preferred Securities and Common Securities shall be paid,
subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution Pro Rata with Holders of Preferred
Securities, except that if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
4. REDEMPTION AND DISTRIBUTION OF DEBENTURES. The Preferred Securities
and Common Securities may only be redeemed if Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities and Common Securities are repaid, redeemed or distributed as set
forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether
at maturity, upon redemption at any time or from time to time on or after
_________, 200_, the proceeds of such repayment will be promptly applied to
redeem Pro Rata Preferred Securities and Common Securities
4
<PAGE>
having an aggregate liquidation amount equal to the aggregate principal amount
of the Debentures so repaid or redeemed, upon not less than 30 nor more than 60
days' notice, at a redemption price of $25 per Preferred and Common Security
plus an amount equal to accrued and unpaid Distributions thereon to the date of
redemption, payable in cash (the "Redemption Price"). The date of any such
repayment or redemption of Preferred Securities and Common Securities shall be
established to coincide with the repayment or redemption date of the
Debentures.
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed Pro Rata and the Preferred Securities to be
redeemed as described in paragraph 4(f)(ii) below. If a partial redemption
would result in the delisting of the Preferred Securities by any national
securities exchange or other organization on which the Preferred Securities are
then listed, DLJ pursuant to the Indenture will only redeem Debentures in whole
and, as a result, the Trust may only redeem the Preferred Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each
as hereinafter defined, and each a "Special Event") shall occur and be
continuing, the Regular Trustees shall, unless the Debentures are redeemed in
the limited circumstances described below, dissolve the Trust and, after
satisfaction of creditors, cause Debentures held by the Property Trustee having
an aggregate principal amount equal to the aggregate stated liquidation amount
of and accrued and unpaid interest equal to accrued and unpaid Distributions
on, and having the same record date for payment as the Preferred Securities and
Common Securities, to be distributed to the Holders of the Preferred Securities
and Common Securities on a Pro Rata basis in liquidation of such Holders'
interests in the Trust, within 90 days following the occurrence of such Special
Event (the "90 Day Period"; provided, however, that in the case of the
occurrence of a Tax Event, as a condition of such dissolution and distribution,
the Regular Trustees shall have received an opinion of a nationally recognized
independent tax counsel experienced in such matters (a "No Recognition
Opinion"), which opinion may rely on any then applicable published revenue
ruling of the Internal Revenue Service, to the effect that the Holders of the
Preferred Securities will not recognize any gain or loss for United States
federal income tax purposes as a result of the dissolution of the Trust and
distribution of Debentures; and provided, further, that, if and as long as at
the time there is available to the Trust the opportunity to eliminate,
5
<PAGE>
within the 90 Day Period, the Special Event by taking some ministerial action,
such as filing a form or making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the Trust, DLJ or the Holders
of the Preferred Securities ("Ministerial Action"), the Trust will pursue such
measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the Regular
Trustees have received an opinion (a "Redemption Tax Opinion") of nationally
recognized independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial risk that DLJ would
be precluded from deducting the interest on the Debentures for United States
federal income tax purposes even if the Debentures were distributed to the
Holders of Preferred Securities and Common Securities in liquidation of such
Holder's interest in the Trust as described in this paragraph 4(c) or (ii) the
Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, DLJ shall have the right
at any time, upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures in whole or in part for cash at the Redemption Price within 90 days
following the occurrence of such Tax Event, and promptly following such
redemption Preferred Securities and Common Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed will be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if at the time there is available to DLJ or the
Regular Trustees on behalf of the Trust the opportunity to eliminate, within
such 90 day period, the Tax Event by taking some Ministerial Action, DLJ or the
Regular Trustees on behalf of the Trust will pursue such measure in lieu of
redemption and; provided, further, that DLJ shall have no right to redeem the
Debentures while the Regular Trustees on behalf of the Trust are pursuing such
Ministerial Action. The Common Securities will be redeemed Pro Rata with the
Preferred Securities, except that if an Event of Default under the Indenture
has occurred and is continuing, the Preferred Securities will have a priority
over the Common Securities with respect to payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that on or after
____________, 199_ as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority thereof
or
6
<PAGE>
therein, (b) any amendment to, or change in, an interpretation or application
of any such laws or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any legislation and
the publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after _________, 199_, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days of
the date thereof, subject to United States federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount of
taxes, duties or other governmental charges or (iii) interest payable by DLJ to
the Trust on the Debentures is not, or within 90 days of the date thereof will
not be, deductible by DLJ for United States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel experienced in
practice under the Investment Company Act that, as a result of the occurrence
of a change in law or regulation or a change in interpretation or application
of law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an Investment
Company which is required to be registered under the Investment Company Act,
which Change in 1940 Act Law becomes effective on or after _________, 199_.
On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Preferred Securities will no longer be deemed to be
outstanding and (ii) certificates representing Preferred Securities will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest equal to accrued and unpaid Distributions on, such
Preferred Securities until such certificates are presented to DLJ or its agent
for transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accrued and unpaid Distributions have been paid on all
Preferred
7
<PAGE>
Securities for all monthly Distribution periods terminating on or prior to the
date of redemption.
(e) If Debentures are distributed to Holders of the Preferred
Securities, DLJ, pursuant to the terms of the Indenture, will use its best
efforts to have the Debentures listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed immediately prior to the
distribution of the Debentures.
(f) (i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and Common Securities (a
"Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of the
calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph (f)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Preferred Securities and
Common Securities. Each Redemption/ Distribution Notice shall be addressed to
the Holders of Preferred Securities and Common Securities at the address of
each such Holder appearing in the books and records of the Trust. No defect in
the Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Preferred
Securities are to be redeemed, the Preferred Securities to be redeemed will be
redeemed Pro Rata from each Holder of Preferred Securities, it being understood
that, in respect of Preferred Securities registered in the name of and held of
record by DTC (or successor Clearing Agency) or any other nominee, the
Preferred Securities will be redeemed from, and the distribution of the
proceeds of such redemption will be made to, each Clearing Agency Participant
(or person on whose behalf such nominee holds such securities) in accordance
with the procedures applied by such agency or nominee.
(iii) Subject to paragraph 9 hereof, if the Trust gives a Redemption/
Distribution Notice in respect of a redemption of Preferred Securities as
provided in this paragraph 4 (which notice will be irrevocable) then (A) while
the Preferred Securities are in book-entry only form, with respect to the
Preferred Securities, by 12:00 noon, New
8
<PAGE>
York City time, on the redemption date, provided that DLJ has paid the Property
Trustee, in immediately available funds, a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures, the
Property Trustee will deposit irrevocably with DTC (or successor Clearing
Agency) funds sufficient to pay the applicable Redemption Price with respect to
the Preferred Securities and will give DTC (or successor Clearing Agency)
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities and (B) if the Preferred Securities are
issued in definitive form, with respect to the Preferred Securities and
provided that DLJ has paid the Property Trustee, in immediately available
funds, a sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Property Trustee will pay the relevant
Redemption Price to the Holders of such Preferred Securities by check mailed to
the address of the relevant Holder appearing on the books and records of the
Trust on the redemption date. If a Redemption/Distribution Notice shall have
been given and funds deposited as required, if applicable, then immediately
prior to the close of business on the redemption date, Distributions will cease
to accrue on the Preferred Securities called for redemption, such Preferred
Securities will no longer be deemed to be outstanding and all rights of Holders
of such Preferred Securities so called for redemption will cease, except the
right of the Holders of such Preferred Securities to receive the Redemption
Price, but without interest on such Redemption Price. Neither the Trustees nor
the Trust shall be required to register or cause to be registered the transfer
of any Preferred Securities which have been so called for redemption. If any
date fixed for redemption of Preferred Securities is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Redemption Price in
respect of Preferred Securities is improperly withheld or refused and not paid
either by the Property Trustee or by DLJ pursuant to the Preferred Securities
Guarantee, Distributions on such Preferred Securities will continue to accrue,
from the original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
9
<PAGE>
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to DTC or its nominee (or any successor
Clearing Agency or its nominee) if the Global Certificates have been issued or,
if Definitive Preferred Security Certificates have been issued, to the Holders
of the Preferred Securities.
(v) Upon the date of dissolution of the Trust and distribution of
Debentures as a result of the occurrence of a Special Event, Preferred Security
Certificates shall be deemed to represent beneficial interests in the
Debentures so distributed, and the Preferred Securities will no longer be
deemed outstanding and may be canceled by the Regular Trustees. The Debentures
so distributed shall have an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities so distributed.
(vi) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), DLJ or any of its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
5. VOTING RIGHTS. (a) Except as provided under paragraph 5(b) below
and as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
(b) If any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Preferred
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal
as a class and such amendment or proposal shall not be effective except with
the approval of the Holders of Securities representing 66-2/3% in liquidation
amount of such Securities; provided, however, that (A) if any amendment or
proposal referred to in clause (i) above would adversely affect only the
Preferred Securities or the Common Securities, then only the affected class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of 66-2/3% in
liquidation
10
<PAGE>
amount of such class of Securities and (B) amendments to the Declaration shall
be subject to such further requirements as are set forth in Sections 12.1 and
12.2 of the Declaration.
In the event the consent of the Property Trustee, as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority in liquidation amount of the Securities voting
together as a single class; provided that where such amendment, modification or
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Property Trustee may only vote with respect to that amendment, modification or
termination as directed by, in the case of clause (1) above, the vote of
Holders of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall be
under no obligation to take any action in accordance with the directions of the
Holders of Securities unless the Property Trustee shall have received, at the
expense of the Sponsor, an opinion of nationally recognized independent tax
counsel recognized as expert in such matters to the effect that the Trust will
not be classified for United States federal income tax purposes as an
association taxable as a corporation or a partnership on account of such action
and will be treated as a grantor trust for United States federal income tax
purposes following such action.
Subject to Section 2.6 of the Declaration, and the provisions of this
and the next succeeding paragraph, the Holders of a Majority in liquidation
amount of the Preferred Securities, voting separately as a class shall have the
right to (A) on behalf of all Holders of Preferred Securities, waive any past
default that is waivable under the Declaration (subject to, and in accordance
with the Declaration) and (B) direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under the Declaration,
including the right to direct the Property Trustee, as the holder of the
Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the
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Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default that is
waivable under Section 6.06 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall
be due and payable; provided that where the taking of any action under the
Indenture requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal amount
of the Debentures or (2) each holder of Debentures, the Property Trustee may
only take such action if directed by, in the case of clause (1) above, the vote
of Holders of Preferred Securities representing such specified percentage of
the aggregate liquidation amount of the Preferred Securities, or, in the case
of clause (2) above, each Holder of Preferred Securities. The Property Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Other than with respect to directing the
time, method and place of conducting any proceeding for any remedy available to
the Property Trustee or the Debenture Trustee as set forth above, the Property
Trustee shall be under no obligation to take any of the foregoing actions at
the direction of the Holders of Preferred Securities unless the Property
Trustee shall have received, at the expense of the Sponsor, an opinion of
nationally recognized independent tax counsel recognized as expert in such
matters to the effect that the Trust will not be classified for United States
federal income tax purposes as an association taxable as a corporation or a
partnership on account of such action and will be treated as a grantor trust
for United States federal income tax purposes following such action. If the
Property Trustee fails to enforce its rights under the Declaration (including,
without limitation, its rights, powers and privileges as a holder of the
Debentures under the Indenture), any Holder of Preferred Securities may, to the
extent permitted by law, after a period of 30 days has elapsed from such
Holder's written request to the Property Trustee to enforce such rights,
institute a legal proceeding directly against DLJ to enforce the Property
Trustee's rights under the Declaration, without first instituting a legal
proceeding against the Property Trustee or any other Person.
A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities will constitute a
waiver of the corresponding Event of Default under the Declaration in respect
of the Securities.
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Any required approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities of the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is to be taken,
to be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
No vote or consent of the Holders of Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities in accordance
with the Declaration.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities at such time that are owned by DLJ or by any entity
directly or indirectly controlling or controlled by or under direct or indirect
common control with DLJ shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if they were not outstanding.
Except as provided in this paragraph 5, Holders of the Preferred
Securities will have no rights to increase or decrease the number of Trustees
or to appoint, remove or replace a Trustee, which voting rights are vested
solely in the Holders of the Common Securities.
6. PRO RATA TREATMENT. A reference in these terms of the Preferred
Securities to any payment, distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities
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<PAGE>
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common Securities held by the
relevant Holder relative to the aggregate liquidation amount of all Common
Securities outstanding.
7. RANKING. The Preferred Securities rank pari passu and payment
thereon will be made Pro Rata with the Common Securities except that where an
Event of Default occurs and is continuing, the rights of Holders of Preferred
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise rank in priority to the rights of Holders
of the Common Securities.
8. MERGERS, CONSOLIDATIONS OR AMALGAMATIONS. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of Distributions
and payments on redemption of the Preferred Securities will be payable, the
transfer of the Preferred Securities will be registrable, and Preferred
Securities will be exchangeable for Preferred Securities of other denominations
of a like aggregate liquidation amount, at the principal corporate trust office
of the Property Trustee in The City of New York; provided that payment of
Distributions may be made at the option of the Regular Trustees on behalf of
the Trust by check mailed to the address of the persons entitled thereto and
that the payment on redemption of any Preferred Security will be made only upon
surrender of such Preferred Security to the Property Trustee.
10. ACCEPTANCE OF INDENTURE AND PREFERRED GUARANTEE. Each Holder of
Preferred Securities, by the acceptance thereof, agrees to the provisions of
(i) the Preferred Guarantee, including the subordination provisions therein and
(ii) the Indenture and the Debentures, including the subordination provisions
of the Indenture.
11. NO PREEMPTIVE RIGHTS. The Holders of Preferred Securities shall
have no preemptive rights to subscribe to any additional Preferred Securities
or Common Securities.
12. MISCELLANEOUS. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder without charge
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on written request to the Trust at its principal place of business.
15
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Annex I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - THIS
PREFERRED SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS PREFERRED SECURITY
IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE DECLARATION AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A
TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY
A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK) TO
THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Preferred Securities
Number --------------
-----------
CUSIP NO.
--------------
Certificate Evidencing Preferred Securities
of
DLJ Capital Trust [ ]
____% Preferred Trust Securities
(liquidation amount $25 per Preferred Security)
DLJ Capital Trust [ ], a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that _________
(the "Holder") is the registered owner of _____ (______) preferred securities
<PAGE>
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the ____% Preferred Trust Securities (liquidation amount $25
per Preferred Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities are set
forth in, and this certificate and the Preferred Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Declaration of Trust of the Trust dated as of
___________, 199_, as the same may be amended from time to time (the
"Declaration") including the designation of the terms of Preferred Securities
as set forth in Exhibit B thereto. The Preferred Securities and the Common
Securities issued by the Trust pursuant to the Declaration represent undivided
beneficial interests in the assets of the Trust, including the Debentures (as
defined in the Declaration) issued by Donaldson, Lufkin & Jenrette, Inc., a
Delaware corporation ("DLJ"), to the Trust pursuant to the Indenture referred
to in the Declaration. The Holder is entitled to the benefits of the Guarantee
Agreement of DLJ dated as of __________, 199_ (the "Guarantee") to the extent
provided therein. The Trust will furnish a copy of the Declaration, the
Guarantee and the Indenture to the Holder without charge upon written request
to the Trust at its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate, is
deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture and (ii) agreed to the terms of the Guarantee, including that the
Guarantee is subordinate and junior in right of payment to all other
liabilities of DLJ, including the Debentures, except those made pari passu or
subordinate by their terms, and senior to all capital stock now or hereafter
issued by DLJ and to any guarantee now or hereafter entered into by DLJ in
respect of any of its capital stock.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
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IN WITNESS WHEREOF, the Trustees of the Trust have executed this
certificate this ____ day of __________, 199_.
DLJ CAPITAL TRUST [ ]
By: , as Trustee
-------------------------
Name:
Title: Trustee
By: , as Trustee
-------------------------
Name:
Title: Trustee
Dated:
Countersigned and Registered:
The Bank of New York
- ----------------------------------
Transfer Agent and Registrar
By:
-------------------------------
Authorized Signature
3
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
-----------------------------
Signature:
------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
4
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EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust of DLJ Capital Trust [ ] dated as of ____________, 199__ (as amended from
time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. DESIGNATION AND NUMBER. Common Securities of the Trust with an
aggregate liquidation amount in the assets of the Trust of
__________________________________________ Dollars ($____________) and a
liquidation amount in the assets of the Trust of $25 per Common Security, are
hereby designated as "____% Common Trust Securities". The Common Security
Certificates evidencing the Common Securities shall be substantially in the
form attached hereto as Annex I, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.
The Common Securities are to be issued and sold to Donaldson, Lufkin &
Jenrette, Inc. ("DLJ") in consideration of $_____________ in cash. In
connection with the issuance and sale of the Preferred Securities and the
Common Securities, the Trust will purchase as trust assets Debentures of DLJ
having an aggregate principal amount equal to the aggregate liquidation amount
of the Preferred Securities and Common Securities so issued, and bearing
interest at an annual rate equal to the annual Distribution rate on the
Preferred Securities and Common Securities and having payment and redemption
provisions which correspond to the payment and redemption provisions of the
Preferred Securities and Common Securities.
2. DISTRIBUTIONS. (a) Distributions payable on each Common Security
will be fixed at a rate per annum of ____% (the "Coupon Rate") of the stated
liquidation amount of $25 per Common Security. Distributions in arrears for
more than one month will bear interest at the rate per annum of ____% thereof
(to the extent permitted by applicable law), compounded monthly. The term
"Distributions" as used in these terms means such periodic cash distributions
and any such interest payable unless otherwise stated. A
<PAGE>
Distribution will be made by the Property Trustee only to the extent that
interest payments are made in respect of the Debentures held by the Property
Trustee. The amount of Distributions payable for any period will be computed
for any monthly Distribution period on the basis of a 360-day year of twelve
30-day months, and for any Distribution period shorter than a 30-day month
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed.
(b) Distributions on the Common Securities will be cumulative, will
accrue from _________, 199__ and will be payable monthly in arrears, on the
last day of each month commencing on __________, 199__, except as otherwise
described below, but only if and to the extent that interest payments are made
in respect of the Debentures held by the Property Trustee. So long as DLJ shall
not be in default in the payment of interest on the Debentures, DLJ has the
right under the Indenture for the Debentures to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding 60 consecutive monthly interest periods (each, an
"Extension Period") and, as a consequence, monthly Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable law) at
the rate of ____% per annum, compounded monthly during any such Extension
Period. Prior to the termination of any such Extension Period, DLJ may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 60 consecutive
monthly interest periods. Upon the termination of any Extension Period and the
payment of all amounts then due, DLJ may commence a new Extension Period,
subject to the above requirements. Payments of accrued Distributions will be
payable to Holders of Common Securities as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
(c) Distributions on the Common Securities will be payable promptly by
the Property Trustee (or other Paying Agent) upon receipt of immediately
available funds to the Holders thereof as they appear on the books and records
of the Trust on the relevant record dates which will be one business day prior
to the relevant Distribution date unless the Preferred Securities are no longer
in book-entry only form in which event the relevant record dates will be the
fifteenth (15th) day of the month prior to the relevant Distribution date,
which record and payment dates correspond to the record and interest payment
dates on the Debentures. Distributions payable on any Common Securities that
are not punctually paid on any Distribution date as a result of DLJ
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<PAGE>
having failed to make the corresponding interest payment on the Debentures will
forthwith cease to be payable to the person in whose name such Common Security
is registered on the relevant record date, and such defaulted Distribution will
instead be payable to the person in whose name such Common Security is
registered on the special record date established by the Regular Trustees,
which record date shall correspond to the special record date or other
specified date determined in accordance with the Indenture; provided, however,
that Distributions shall not be considered payable on any Distribution payment
date falling within an Extension Period unless DLJ has elected to make a full
or partial payment of interest accrued on the Debentures on such Distribution
payment date. Subject to any applicable laws and regulations and the provisions
of the Declaration, each payment in respect of the Common Securities will be
made as described in paragraph 9 hereof. If any date on which Distributions are
payable on the Common Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
(d) All Distributions paid with respect to the Common Securities and
the Preferred Securities will be paid Pro Rata to the Holders thereof entitled
thereto. If an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities with respect to
Distributions.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money or
property shall be distributed Pro Rata among the Holders of the Preferred
Securities and Common Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Preferred Securities and Common Securities at the date of
the dissolution, winding-up or termination, as the case may be, will be
entitled to receive Pro Rata solely out of the assets of the Trust available
for distribution to Holders of Preferred Securities and Common Securities,
after satisfaction of liabilities to creditors, an amount equal to the
aggregate of the stated liquidation amount of $25 per Preferred Security and
Common Security plus accrued and unpaid Distributions thereon to the date of
payment (such
3
<PAGE>
amount being the "Liquidation Distribution"), unless, in connection with such
dissolution, winding-up or termination, and after satisfaction of liabilities
to creditors, Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of such Preferred Securities and Common
Securities bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, such Preferred Securities and Common
Securities, shall be distributed Pro Rata to the Holders of the Preferred
Securities and Common Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Preferred Securities and Common Securities shall be paid,
subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution Pro Rata with Holders of Preferred
Securities, except that if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
4. REDEMPTION AND DISTRIBUTION OF DEBENTURES. The Preferred Securities
and Common Securities may only be redeemed if Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities and Common Securities are repaid, redeemed or distributed as set
forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether
at maturity, upon redemption at any time or from time to time on or after
__________, 200_, the proceeds of such repayment will be promptly applied to
redeem Pro Rata Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
repaid or redeemed, upon not less than 30 nor more than 60 days' notice, at a
redemption price of $25 per Preferred and Common Security plus an amount equal
to accrued and unpaid Distributions thereon to the date of redemption, payable
in cash (the "Redemption Price"). The date of any such repayment or redemption
of Preferred Securities and Common Securities shall be established to coincide
with the repayment or redemption date of the Debentures.
4
<PAGE>
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed Pro Rata and the Common Securities to be redeemed
will be redeemed as described in paragraph 4(e)(ii) below. If a partial
redemption would result in the delisting of the Preferred Securities by any
national securities exchange or other organization on which the Preferred
Securities are then listed, DLJ pursuant to the Indenture will only redeem
Debentures in whole and, as a result, the Trust may only redeem the Common
Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each
as hereinafter defined, and each a "Special Event") shall occur and be
continuing, the Regular Trustees shall, unless the Debentures are redeemed in
the limited circumstances described below, dissolve the Trust and, after
satisfaction of creditors, cause Debentures held by the Property Trustee having
an aggregate principal amount equal to the aggregate stated liquidation amount
of and accrued and unpaid interest equal to accrued and unpaid Distributions
on, and having the same record date for payment as the Preferred Securities and
Common Securities, to be distributed to the Holders of the Preferred Securities
and Common Securities on a Pro Rata basis in liquidation of such Holders'
interests in the Trust, within 90 days following the occurrence of such Special
Event (the "90 Day Period"); provided, however, that in the case of the
occurrence of a Tax Event, as a condition of such dissolution and distribution,
the Regular Trustees shall have received an opinion of a nationally recognized
independent tax counsel experienced in such matters (a "No Recognition
Opinion"), which opinion may rely on any then applicable published revenue
rulings of the Internal Revenue Service, to the effect that the Holders of the
Preferred Securities will not recognize any gain or loss for United States
federal income tax purposes as a result of the dissolution of the Trust and
distribution of Debentures; and provided, further, that, if and as long as at
the time there is available to the Trust the opportunity to eliminate, within
such 90 Day Period, the Special Event by taking some ministerial action, such
as filing a form or making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the Trust, DLJ or the Holders
of the Preferred Securities ("Ministerial Action") the Trust will pursue such
measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the Regular
Trustees have received an opinion (a "Redemption Tax Opinion") of nationally
recognized independent tax counsel experienced in such matters that, as
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<PAGE>
a result of a Tax Event, there is more than an insubstantial risk that DLJ
would be precluded from deducting the interest on the Debentures for United
States federal income tax purposes even if the Debentures were distributed to
the Holders of Preferred Securities and Common Securities in liquidation of
such Holder's interest in the Trust as described in this paragraph 4(c) or (ii)
the Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, DLJ shall have the right
at any time, upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures in whole or in part for cash at the Redemption Price within 90 days
following the occurrence of such Tax Event, and promptly following such
redemption Preferred Securities and Common Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed will be redeemed by the Trust at the Redemption Price on a Pro Rata
basis: provided, however, that, if at the time there is available to DLJ or the
Regular Trustees on behalf of the Trust the opportunity to eliminate, within
such 90 day period, the Tax Event by taking some Ministerial Action, DLJ or the
Holders of the Preferred Securities, DLJ or the Regular Trustees on behalf of
the Trust will pursue such measure in lieu of redemption; and provided,
further, that DLJ shall have no right to redeem the Debentures while the
Regular Trustees on behalf of the Trust are pursuing such Ministerial Action.
The Common Securities will be redeemed Pro Rata with the Preferred Securities,
except that if an Event of Default under the Indenture has occurred and is
continuing, the Preferred Securities will have a priority over the Common
Securities with respect to payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that on or after
__________, 199_ as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change in, an interpretation or application
of any such laws or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any legislation and
the publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment
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<PAGE>
or change is enacted, promulgated, issued or announced or which interpretation
or pronouncement is issued or announced or which action is taken, in each case
on or after __________, 199_, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date thereof, subject to United
States federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties or other governmental
charges or (iii) interest payable by DLJ to the Trust on the Debentures is not,
or within 90 days of the date thereof will not be, deductible by DLJ for United
States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel experienced in
practice under the Investment Company Act that, as a result of the occurrence
of a change in law or regulation or a change in interpretation or application
of law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an Investment
Company which is required to be registered under the Investment Company Act,
which Change in 1940 Act Law becomes effective on or after __________, 199_.
On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Common Securities will no longer be deemed to be
outstanding and (ii) any certificates representing Common Securities will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest equal to accrued and unpaid Distributions on, such Common
Securities until such certificates are presented to DLJ or its agent for
transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Common
Securities unless all accrued and unpaid Distributions have been paid on all
Common Securities for all monthly Distribution periods terminating on or prior
to the date of redemption.
(e)(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and Common Securities (a
"Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for
7
<PAGE>
redemption or exchange thereof. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to
this paragraph (e)(i), a Redemption/Distribution Notice shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Preferred Securities and Common Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of Preferred
Securities and Common Securities at the address of each such Holder appearing
in the books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect to
any other Holder.
(ii) In the event that fewer than all the outstanding Common
Securities are to be redeemed, the Common Securities to be redeemed will be
redeemed Pro Rata from each Holder of Common Securities (subject to adjustment
to eliminate fractional Common Securities).
(iii) If the Trust gives a Redemption/ Distribution Notice in respect
of a redemption of Common Securities as provided in this paragraph 4 (which
notice will be irrevocable) then immediately prior to the close of business on
the redemption date, provided that DLJ has paid to the Property Trustee in
immediately available funds a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, Distributions will cease to
accrue on the Common Securities called for redemption, such Common Securities
will no longer be deemed to be outstanding and all rights of Holders of such
Common Securities so called for redemption will cease, except the right of the
Holders of such Common Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Trustees nor the Trust shall be
required to register or cause to be registered the transfer of any Common
Securities which have been so called for redemption. If any date fixed for
redemption of Common Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of Common Securities
is improperly withheld or refused and not paid by the Property Trustee,
Distributions on such Common Securities will continue to accrue, from the
original redemption date to the
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<PAGE>
date of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to the Holders of the Common Securities.
(v) Upon the date of dissolution of the Trust and distribution of
Debentures as a result of the occurrence of a Special Event, Common Security
Certificates shall be deemed to represent beneficial interests in the
Debentures so distributed, and the Common Securities will no longer be deemed
outstanding and may be canceled by the Regular Trustees. The Debentures so
distributed shall have an aggregate principal amount equal to the aggregate
liquidation amount of the Common Securities so distributed.
5. VOTING RIGHTS. (a) Except as provided under paragraph 5(b) below
and as otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Holders of Common Securities have the sole right under the
Declaration to increase or decrease the number of Trustees, and to appoint,
remove or replace a Trustee, any such increase, decrease, appointment, removal
or replacement to be approved by Holders of Common Securities representing a
Majority in liquidation amount of the Common Securities.
If any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Common
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal
as a class and such amendment or proposal shall not be effective except with
the approval of the Holders of Securities representing 66-2/3% in liquidation
amount of such Securities; provided, however, that (A) if any amendment or
proposal referred to in clause (i) above would adversely affect only the
Preferred Securities or the Common Securities, then only the affected class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be
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<PAGE>
effective except with the approval of 66-2/3% in liquidation amount of such
class of Securities, (B) the rights of Holders of Common Securities under
Article V of the Declaration to increase or decrease the number of, and to
appoint, replace or remove, Trustees shall not be amended without the consent
of each Holder of Common Securities, and (C) amendments to the Declaration
shall be subject to such further requirements as are set forth in Sections 12.1
and 12.2 of the Declaration.
In the event the consent of the Property Trustee as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority in liquidation amount of the Securities voting
together as a single class; provided that where such amendment, modification or
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Property Trustee may only vote with respect to that amendment, modification or
termination as directed by, in the case of clause (1) above, the vote of
Holders of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall be
under no obligation to take any action in accordance with the directions of the
Holders of the Securities unless the Property Trustee shall have received, at
the expense of the Sponsor, an opinion of nationally recognized independent tax
counsel recognized as an expert in such matters to the effect that the Trust
will not be classified for United States federal income tax purposes as an
association taxable as a corporation or a partnership on account of such action
and will be treated as a grantor trust for United States federal income tax
purposes following such action.
Subject to Section 2.6 of the Declaration, and the provisions of this
and the next succeeding paragraph, the Holders of a Majority in liquidation
amount of the Common Securities, voting separately as a class shall have the
right to (A) on behalf of all Holders of Common Securities, waive any past
default that is waivable under the Declaration (subject to, and in accordance
with the Declaration) and (B) direct the time, method, and place of
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<PAGE>
conducting any proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as holder of
the Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 6.06 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable; provided that where the taking of any action under the Indenture
requires the consent or vote of (1) holders of Debentures representing a
specified percentage greater than a majority in principal amount of the
Debentures or (e) each holder of Debentures, the Property Trustee may only take
such action if directed by, in the case of clause (1) above, the vote of
Holders of Common Securities representing such specified percentage of the
aggregate liquidation amount of the Common Securities, or, in the case of
clause (2) above, each Holder of Common Securities. Pursuant to this paragraph,
the Property Trustee shall not revoke, or take any action inconsistent with,
any action previously authorized or approved by a vote of the Holders of the
Preferred Securities, and shall not take any action in accordance with the
direction of the Holders of the Common Securities under this paragraph if the
action is prejudicial to the Holders of Preferred Securities. Other than with
respect to directing the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee or the Debenture Trustee as
set forth above, the Property Trustee shall be under no obligation to take any
of the foregoing actions at the direction of the Holders of Common Securities
unless the Properties Trustee shall have received, at the expense of the
Sponsor, an opinion of nationally recognized independent tax counsel recognized
as expert in such matters to the effect that the Trust will not be classified
for United States federal income tax purposes as an association taxable as a
corporation or a partnership on account of such action and will be treated as a
grantor trust for United States income tax purposes following such action.
Notwithstanding any other provision of these terms, each Holder of
Common Securities will be deemed to have waived any Event of Default with
respect to the Common Securities and its consequences until all
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Events of Default with respect to the Preferred Securities have been cured,
waived by the Holders of Preferred Securities as provided in the Declaration or
otherwise eliminated, and until all Events of Default with respect to the
Preferred Securities have been so cured, waived by the Holders of Preferred
Securities or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the Property
Trustee in accordance with the terms of the Declaration or of the Securities.
In the event that any Event of Default with respect to the Preferred Securities
is waived by the Holders of Preferred Securities as provided in the
Declaration, the Holders of Common Securities agree that such waiver shall also
constitute the waiver of such Event of Default with respect to the Common
Securities for all purposes under the Declaration without any further act, vote
or consent of the Holders of the Common Securities.
A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities will constitute a
waiver of the corresponding Event of Default under the Declaration in respect
of the Securities.
Any required approval of Holders of Common Securities may be given at
a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities of the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities in accordance
with the Declaration.
6. PRO RATA TREATMENT. A reference in these terms of the Common
Securities to any payment, distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which
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case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding,
and only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
7. RANKING. The Common Securities rank pari passu and payment thereon
will be made Pro Rata with the Preferred Securities except that where an Event
of Default occurs and is continuing, the rights of Holders of Common Securities
to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise are subordinate to the rights of Holders of the
Preferred Securities.
8. MERGERS, CONSOLIDATIONS OR AMALGAMATIONS. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. TRANSFERS, EXCHANGES, METHOD OF PAYMENTS. Payment of Distributions
and payments on redemption of the Common Securities will be payable, the
transfer of the Common Securities will be registrable, and Common Securities
will be exchangeable for Common Securities of other denominations of a like
aggregate liquidation amount, at the principal corporate trust office of the
Property Trustee in The City of New York; provided that payment of
Distributions may be made at the option of the Regular Trustees on behalf of
the Trust by check mailed to the address of the persons entitled thereto and
that the payment on redemption of any Common Security will be made only upon
surrender of such Common Security to the Property Trustee. Notwithstanding the
foregoing, transfers of Common Securities are subject to conditions set forth
in Section 9.1(c) of the Declaration.
10. ACCEPTANCE OF INDENTURE. Each Holder of Common Securities, by the
acceptance thereof, agrees to the provisions of the Indenture and the
Debentures, including the subordination provisions thereof.
11. NO PREEMPTIVE RIGHTS. The Holders of Common Securities shall have
no preemptive rights to subscribe to any additional Common Securities or
Preferred Securities.
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12. MISCELLANEOUS. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder without charge on written request to the Trust at its principal
place of business.
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Annex I
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities
------ ---------
Certificate Evidencing Common Securities
of
DLJ Capital Trust [ ]
____% Common Trust Securities
(liquidation amount $25 per Common Security)
DLJ Capital Trust [ ], a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Donaldson,
Lufkin & Jenrette, Inc. (the "Holder") is the registered owner of
____________________________ (_________) common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the "____% Common Trust Securities" (liquidation amount $25 per
Common Security) (the "Common Securities"). The Common Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer and satisfaction of the other conditions set forth in
the Declaration (as defined below) including, without limitation Section 9.1(c)
thereof. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of Trust of the Trust dated as of __________, 199__, as
the same may be amended from time to time (the "Declaration") including the
designation of the terms of Common Securities as set forth in Exhibit C
thereto. The Common Securities and the Preferred Securities issued by the Trust
pursuant to the Declaration represent
<PAGE>
undivided beneficial interests in the assets of the Trust, including the
Debentures (as defined in the Declaration) issued by Donaldson, Lufkin &
Jenrette, Inc., a Delaware corporation, to the Trust pursuant to the Indenture
referred to in the Declaration. The Trust will furnish a copy of the
Declaration and the Indenture to the Holder without charge upon written request
to the Trust at its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate, is
deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed this
certificate this ___ day of _____________, 199_.
DLJ CAPITAL TRUST [ ]
By , as Trustee
------------------------
Name:
Title: Trustee
By , as Trustee
------------------------
Name:
Title: Trustee
Dated:
Countersigned and Registered:
The Bank of New York
- ----------------------------------
Transfer Agent and Registrar
By:
-------------------------------
Authorized Signature
2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
agent to transfer this
- --------------------------------------------------------
Common Security Certificate on the books of the Trust. The agent may substitute
another to act for him or her.
Date:
-------------------------------
Signature:
-------------------------------------
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
3
Exhibit 4.16
DONALDSON, LUFKIN & JENRETTE, INC.
AND
THE BANK OF NEW YORK
as Trustee
------------------
[ ] SUPPLEMENTAL INDENTURE
Dated as of _____________, 199__
TO
INDENTURE
Dated as of ___________, 199__
-------------------
_____% Junior Subordinated Debentures
Due 20___
<PAGE>
[ ] Supplemental INDENTURE, dated as of the _____ day of
__________ 199___ (the "[ ] Supplemental Indenture"), between DONALDSON,
LUFKIN & JENRETTE, INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter sometimes referred to as the
"Company") and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (hereinafter sometimes referred to as the "Trustee") under the
Indenture dated as of August __, 1996 between the Company and the Trustee (the
"Indenture"); as set forth in Section 7.01 hereto and except as otherwise set
forth herein, all terms used and not defined herein are used as defined in the
Indenture),
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), said Debentures to be issued from time to time
in series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to
be known as its ____% Junior Subordinated Debentures due 20___ (said series
being hereinafter referred to as the "Series ____% Debentures"), the form and
substance of such Series ____% Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this [ ]
Supplemental Indenture; and
WHEREAS, the Company has caused to be formed DLJ Capital
Trust [ ] ("DLJ Capital [ ]") as a statutory business trust under the Business
Trust Act of the State of Delaware (12 Del. Code Sec. 801 et seq.) pursuant to
a declaration of trust dated June 16, 1996 (the "Original Declaration") and
the filing of a certificate of trust with the Secretary of State of the State
of Delaware on June 19, 1996; and
WHEREAS, the Original Declaration is to be amended and
restated in its entirety pursuant to an Amended and Restated Declaration of
Trust dated as of ___________, 199___ (such Amended and Restated Declaration
of Trust, as amended from time to time, the "Declaration of Trust"); and
WHEREAS, DLJ Capital [ ] desires to issue its ____%
Preferred Trust Securities (the "Preferred Securities") and sell such
Preferred Securities to initial purchasers; and
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WHEREAS, in connection with such purchases of Preferred
Securities and the related purchase by the Company of the Common Securities
(as defined in the Declaration of Trust) of DLJ Capital [ ], DLJ Capital [ ]
will purchase as trust assets Series ____% Debentures; and
WHEREAS, pursuant to the Declaration of Trust, the legal
title to the Series ____% Debentures shall be owned and held of record in the
name of The Bank of New York or its successor under the Declaration of Trust,
as Property Trustee (the "Property Trustee"), in trust for the benefit of
holders of the Preferred Securities and the Common Securities; and
WHEREAS, upon the occurrence of a Special Event (as defined
in the Declaration of Trust) the Regular Trustees (as defined in the
Declaration of Trust) of DLJ Capital [ ] shall, unless the Series ____%
Debentures are redeemed as described herein, dissolve DLJ Capital [ ] and
cause to be distributed to the holders of the Preferred Securities and Common
Securities, on a Pro Rata basis (determined as provided in the terms of the
Preferred Securities and Common Securities attached as Exhibits B and C to the
Declaration of Trust), Series ____% Debentures and in connection with a
Liquidation Distribution (as defined in the Declaration of Trust) the Regular
Trustees may cause to be distributed to holders of Preferred Securities and
Common Securities, on such a Pro Rata basis, Series ____% Debentures (each a
"Dissolution Event"); and
WHEREAS, the Company desires and has requested the Trustee
to join with it in the execution and delivery of this [ ] Supplemental
Indenture, and all requirements necessary to make this [ ] Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series ____% Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof have been in
all respects duly authorized;
NOW THEREFORE, in consideration of the purchase and
acceptance of the Series ____% Debentures by the holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form and substance
of the Series ____% Debentures and the terms, provisions and conditions
thereof, the Company covenants and agrees with the Trustee as follows:
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ARTICLE ONE
General Terms and Conditions of
the Series ____% Debentures
SECTION 1.01. There shall be and is hereby authorized a
series of Debentures designated the "____% Junior Subordinated Debentures Due
20___", limited in aggregate principal amount to $_____________ (except as
provided in this Section 1.01 and 6.01). Upon exercise of the overallotment
option set forth in the Underwriting Agreement (as defined in the Declaration
of Trust), additional Series ____% Debentures in the aggregate principal
amount of up to $__________ may be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Series ____% Debentures to or upon the written order of the
Company, which order shall be accompanied by evidence satisfactory to the
Trustee that the overallotment option has been exercised. The Series ____%
Debentures shall mature and the principal shall be due and payable together
with all accrued and unpaid interest thereon, including Compounded Interest
(as hereinafter defined) on _________ , 20___.
SECTION 1.02. (a) Except as provided in Section 1.02(b), the
Series ____% Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Series ____%
Debentures issued in certificated form will be payable, the transfer of such
Series ____% Debentures will be registrable and such Series ____% Debentures
will be exchangeable for Series ____% Debentures bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City and State of New York; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debenture register and that the
payment of principal with respect to the Series ____% Debentures will only be
made upon surrender of the Series ____% Debentures to the Trustee.
Notwithstanding the foregoing, so long as the Property Trustee is the legal
owner and record holder of the Series ____% Debentures, the payment of the
principal of and interest (including Compounded Interest, if any) on the
Series ____% Debentures held by the Property Trustee will be made by the
Company in immediately available funds on the payment date therefor at such
place and to the Property Account (as defined in the Declaration of Trust)
established and maintained by the Property Trustee pursuant to the Declaration
of Trust.
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(b) In connection with a Dissolution Event;
(i) Series ____% Debentures in certificated form
may be presented to the Trustee by the
Property Trustee in exchange for a Global
Debenture representing the Series ____%
Debentures in an aggregate principal amount
equal to all Outstanding Series ____%
Debentures, to be registered in the name of
the Depositary, or its nominee, and delivered
by the Trustee to the Depositary for
crediting to the accounts of its participants
pursuant to the instructions of the Regular
Trustees (as defined in the Declaration of
Trust). The Company upon any such
presentation shall execute a Global Debenture
representing the Series ____% Debentures in
such aggregate principal amount and deliver
the same to the Trustee for authentication
and delivery in accordance with the Indenture
and this [ ] Supplemental Indenture.
Payments on the Series ____% Debentures
issued as a Global Debenture will be made to
the Depositary; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, Series ____%
Debentures in certificated form may be
presented to the Trustee by the Property
Trustee and any Preferred Security
Certificate (as defined in the Declaration of
Trust) which represents Preferred Securities
other than Preferred Securities held by the
Clearing Agency (as defined in the
Declaration of Trust) or its nominee ("Non
Book-Entry Preferred Securities") will be
deemed to represent beneficial interests in
Series ____% Debentures presented to the
Trustee by the Property Trustee having an
aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-
Entry Preferred Securities until such
Preferred Security Certificate are presented
to the Debenture Registrar for transfer or
reissuance at which time such Preferred
Security Certificate will be cancelled and a
Series ____% Debenture, registered in the
name of the holder of the Preferred Security
Certificate or the transferee of the holder
of such Preferred Security Certificate, as
the case may be, with an aggregate principal
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amount equal to the aggregate liquidation amount of
the Preferred Security Certificate canceled will be
executed by the Company and delivered to the
Trustee for authentication and delivery in
accordance with the Indenture and this [ ]
Supplemental Indenture. On issue of such Series
____% Debentures, Series ____% Debentures with an
equivalent aggregate amount that were presented by
the Property Trustee to the Trustee will be deemed
to have been canceled.
SECTION 1.03. Each Series ____% Debenture will bear interest
at the rate of ____% per annum from _______________, 199___ until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum,
compounded monthly, payable (subject to the provisions of Article Three)
monthly in arrears on the last day of each month (each, an "Interest Payment
Date", commencing on __________ __, 199__), to the person in whose name such
Series ____% Debenture or any predecessor Series ____% Debenture is
registered, at the close of business on the regular record date for such
interest installment, which, except as set forth below, shall be, in respect
of any Series ____% Debentures of which the Property Trustee is the registered
holder of or a Global Debenture, the close of business on the business day
next preceding that Interest Payment Date. Notwithstanding the foregoing
sentence, if the Preferred Securities are no longer in book-entry only form or
if pursuant to the provisions of Section 2.11(c) of the Indenture the Series
____% Debentures are not represented by a Global Debenture, the regular record
dates for such interest installment shall be the close of business on the
[last day of the month next preceding that Interest Payment Date]. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered holders on such regular record date, and
may be paid to the person in whose name the Series ____% Debenture (or one or
more Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
the Series ____% Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series ____%
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
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The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months and for any
period shorter than a 30-day monthly interest period for which interest is
computed, the amount of interest payable will be computed on the basis of the
actual number of days elapsed. In the event that any date on which interest is
payable on the Series ____% Debentures is not a business day, then payment of
interest payable on such date will be made on the next succeeding day which is
a business day (and without any interest or other payment in respect of any
such delay), except that, if such business day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
business day, in each case with the same force and effect as if made on such
date.
ARTICLE TWO
Optional Redemption
of the Series ____% Debentures
SECTION 2.01. Except as provided in Section 2.02, Series
____% Debentures may not be redeemed by the Company prior to __________,
200__. Subject to the terms of Article Three of the Indenture, the Company
shall have the right to redeem the Series ____% Debentures, in whole or in
part, from time to time, on or after ___________, 200__, at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and
unpaid interest thereon, including Compounded Interest, if any, to the date of
such redemption (the "Optional Redemption Price"). Any redemption pursuant to
this paragraph will be made upon not less than 30 nor more than 60 days'
notice, at the Optional Redemption Price.
SECTION 2.02. If, at any time, a Tax Event (as defined
below) shall occur or be continuing and (i) the Regular Trustees and the
Company shall have received an opinion (a "Redemption Tax Opinion") of a
nationally recognized independent tax counsel experienced in such matters
that, as a result of a Tax Event, there is more than an insubstantial risk
that the Company would be precluded from deducting the interest on the Series
____% Debentures for United States federal income tax purposes even if the
Series ____% Debentures were distributed to the holders of Preferred
Securities and Common Securities in liquidation of such holder's interest in
DLJ Capital [ ] as set forth in the Declaration of Trust or (ii) the Regular
Trustees shall have been informed by such tax counsel that a No Recognition
Opinion (as defined below) cannot be delivered to DLJ
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Capital [ ], the Company shall have the right at any time, upon not less than
30 nor more than 60 days' notice, to redeem the Series ____% Debentures in
whole or in part for cash at the Optional Redemption Price within 90 days
following the occurrence of such Tax Event; provided, however, that, if at the
time there is available to the Company or the Regular Trustees on behalf of
DLJ Capital [ ] the opportunity to eliminate, within such 90 day period, the
Tax Event by taking some ministerial action ("Ministerial Action"), such as
filing a form or making an election, or pursuing some other similar reasonable
measure, which has no adverse effect on DLJ Capital [ ], the Company or the
holders of the Preferred Securities, the Company or the Regular Trustees on
behalf of DLJ Capital [ ] will pursue such measure in lieu of redemption and
provided further that the Company shall have no right to redeem the Series
____% Debentures while the Regular Trustees on behalf of DLJ Capital [ ] are
pursuing any such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after ____________, 199___ as a result of (a) any amendment
to, or change (including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or
(d) any action taken by any governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after ______________, 199___ there is more than an
insubstantial risk that (i) DLJ Capital [ ] is, or will be within 90 days of
the date thereof, subject to United States federal income tax with respect to
income accrued or received on the Series ____% Debentures, (ii) DLJ Capital
[ ] is, or will be within 90 days of the date thereof, subject to more than a
de minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to DLJ Capital [ ] on the Series ____%
Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company for United States federal income tax purposes.
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<PAGE>
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of a dissolution of DLJ Capital [ ] and distribution of
the Series ____% Debentures as provided in the Declaration of Trust.
SECTION 2.03. If the Series ____% Debentures are only
partially redeemed pursuant to this Article Two, the Series ____% Debentures
will be redeemed pro rata or by lot or by any other method utilized by the
Trustee, provided that if at the time of redemption, the Series ____%
Debentures are registered as a Global Debenture, the Depository shall
determine by lot the principal amount of such Series ____% Debentures held by
each Debenture Holder to be redeemed in accordance with its customary
procedures. Notwithstanding the foregoing, if a partial redemption of the
Series ____% Debentures would result in the delisting of the Preferred
Securities by any national securities exchange or other organization on which
the Preferred Securities are then listed, the Company shall not be permitted
to effect such partial redemption and will only redeem the Series ____%
Debentures in whole.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in
the payment of interest on the Series ____% Debentures, the Company shall have
the right, at any time during the term of the Series ____% Debentures, from
time to time to extend the interest payment period of such Series ____%
Debentures for up to 60 consecutive monthly interest periods (the "Extended
Interest Payment Period"), at the end of which period the Company shall pay
all interest accrued and unpaid thereon (together with interest thereon at the
rate of ____% per annum to the extent permitted by applicable law, compounded
monthly ("Compounded Interest")). During such Extended Interest Payment Period
the Company shall not declare or pay any dividend on, or redeem, purchase,
acquire or make a distribution or liquidation payment with respect to, any of
its common stock or preferred stock or make any guarantee payments with
respect thereto; provided that (i) the Company may pay accrued dividends (and
cash in lieu of fractional shares) upon the conversion of any preferred stock
of the Company as may be
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outstanding from time to time, in each case in accordance with the terms of
such stock and (ii) the foregoing will not apply to any stock dividends paid
by the Company. Prior to the termination of any such Extended Interest Payment
Period, the Company may pay all or any portion of the interest accrued on the
Series ____% Debentures on any Interest Payment Date to holders of record on
the regular record date for such Interest Payment Date or from time to time
further extend such Period; provided that such Period together with all such
further extensions thereof shall not exceed 60 consecutive monthly interest
periods. Upon the termination of any Extended Interest Payment Period and upon
the payment of all accrued and unpaid interest then due, together with
Compounded Interest, the Company may select a new Extended Interest Payment
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end thereof.
At the end of the Extended Interest Payment Period the Company shall pay all
interest accrued and unpaid on the Series ____% Debentures including any
Compounded Interest which shall be payable to the holders of the Series ____%
Debentures in whose names the Series ____% Debentures are registered in the
Debenture register on the first record date after the end of the Extended
Interest Payment Period.
SECTION 3.02. (a) So long as the Property Trustee is the
legal owner and holder of record of the Series ____% Debentures, at the time
the Company selects an Extended Interest Payment Period, the Company shall
give both the Property Trustee and the Trustee written notice of its selection
of such Extended Interest Payment Period one business day prior to the earlier
of (i) the next succeeding date on which distributions on the Preferred
Securities are payable or (ii) the date DLJ Capital [ ] is required to give
notice of the record date or the date such distributions are payable to the
New York Stock Exchange or other applicable self-regulatory organization or to
holders of the Preferred Securities, but in any event not less than one
business day prior to such record date. The Company shall cause DLJ Capital
[ ] to give notice of the Company's selection of such Extended Interest Payment
Period to the holders of the Preferred Securities.
(b) If as a result of a Dissolution Event Series ____%
Debentures have been distributed to holders of Preferred Securities and Common
Securities, at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Series ____% Debentures and
the Trustee written notice of its selection of such Extended Interest Payment
Period at least 10
10
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business days prior to the earlier of (i) the next succeeding Interest Payment
Date or (ii) the date the Company is required to give notice of the record or
payment date of such interest payment to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Series ____%
Debentures.
SECTION 3.03. The month in which any notice is given
pursuant to Section 3.02 shall be counted as one of the 60 months permitted in
the maximum Extended Interest Payment Period permitted under this Article
Three.
ARTICLE FOUR
Covenants Applicable to Series ____% Debentures
SECTION 4.01. So long as any Preferred Securities remain
outstanding, the Company will not declare or pay any dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect
to, any of its common stock or preferred stock or make any guarantee payments
with respect thereto if at such time (i) the Company shall be in default with
respect to its Guarantee Payments (as defined in the Guarantee Agreement) or
other payment obligations under the Guarantee Agreement, (ii) there shall have
occurred any Event of Default under the Indenture with respect to the Series
____% Debentures or (iii) the Company shall have given notice of its election
of an Extended Interest Payment Period and such Period, or any extension
thereof, is continuing; provided that (a) the Company will be permitted to pay
accrued dividends (and cash in lieu of fractional shares) upon the conversion
of any preferred stock of the Company as may be outstanding from time to time,
in each case in accordance with the terms of such stock and (b) the foregoing
will not apply to any stock dividends paid by the Company.
SECTION 4.02. In connection with the distribution of the
Series ____% Debentures to the holders of the Preferred Securities upon a
Dissolution Event, the Company will use its best efforts to list such Series
____% Debentures on the New York Stock Exchange or on such other exchange as
the Preferred Securities are then listed and traded.
SECTION 4.03. The Company covenants and agrees for the
benefit of the holders of the Preferred Securities to comply fully with all of
its obligations and agreements under the Declaration of Trust, including,
without limitation, its obligations under Article IV thereof.
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SECTION 4.04. Prior to the distribution of Series ____%
Debentures to the holders of Preferred Securities upon a Dissolution Event,
the Company covenants and agrees for the benefit of the holders of the
Preferred Securities (i) not to cause or permit the Common Securities to be
transferred except as permitted by the Declaration of Trust and (ii) that it
will use reasonable efforts to cause the Trust to continue to be treated as a
grantor trust for United States federal income tax purposes, except in
connection with a distribution of the Series ____% Debentures as provided in
the Declaration of Trust.
ARTICLE FIVE
Form of Series ____% Debentures
SECTION 5.01. The Series ____% Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially
in the following forms:
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(FORM OF FACE OF DEBENTURE)
[IF THE NOTE IS TO BE A GLOBAL DEBENTURE, INSERT This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except
in limited circumstances.
Unless this Debenture is presented by an authorized
representative to The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
No. $
CUSIP NO. ____________
DONALDSON, LUFKIN & JENRETTE, INC.
____% JUNIOR SUBORDINATED DEBENTURE
DUE 20___
Donaldson, Lufkin & Jenrette, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (herein
referred to as the "Company", which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
, or registered assigns, the principal sum of _________
Dollars on ___________, 20___, and to pay interest on said principal sum from
___________, 199___ or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, monthly (subject to deferral as set forth herein) in arrears on
the last day of each month
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commencing ___________, 199___ at the rate of ____% per annum plus Compounded
Interest, if any, until the principal hereof shall have become due and
payable, and on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at the same rate
per annum. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months and for any
period shorter than a 30-day monthly interest period for which interest is
computed, the amount of interest payable will be computed on the basis of the
actual number of days elapsed. In the event that any date on which interest is
payable on this Debenture is not a business day, then payment of interest
payable on such date will be made on the next succeeding day which is a
business day (and without any interest or other payment in respect of any such
delay), except that, if such business day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding business day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Debentures, as
defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, [which shall be the close
of business on the day next preceding such Interest Payment Date, provided if
the Preferred Securities of DLJ Capital Trust [ ] are no longer in book-entry
only form, the regular record dates shall be the close of business on the
fifteenth (15th) day of each month next preceding such Interest Payment Date]
[IF PURSUANT TO THE PROVISIONS OF SECTION 2.11(c) OF THE INDENTURE THE SERIES
____% DEBENTURES ARE NOT REPRESENTED BY A GLOBAL DEBENTURE -- which shall be
the close of business on the fifteenth (15th) day of each month next preceding
such Interest Payment Date.] Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the registered
holders on such regular record date, and may be paid to the person in whose
name this Debenture (or one or more Predecessor Debentures) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered holders of this series of Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Debentures may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal
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<PAGE>
of (and premium, if any) and the interest on this Debenture shall be payable
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City and State of New York, in any coin or currency
of the United States of America which at the time of payment is legal tender
for payment of public and private debts; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debenture register
and that the payment of principal will only be made upon the surrender of this
Debenture to the Trustee. Notwithstanding the foregoing, so long as the owner
and record holder of this Debenture is the Property Trustee (as defined in the
Indenture referred to on the reverse hereof), the payment of the principal of
(and premium, if any) and interest (including Compounded Interest, if any) on
this Debenture will be made at such place and to such account of the Property
Trustee as may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such Holder upon said provisions.
This Debenture shall not be entitled to any benefit under
the Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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The provisions of this Debenture are continued on the
reverse side hereof and such continued provisions shall for all purposes have
the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument
to be executed.
Dated ______________________
DONALDSON, LUFKIN & JENRETTE, INC.
By ______________________________
Attest:
By ________________________
Secretary
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
The Bank of New York
as Trustee
----------------------------------
or as Authentication Agent
By
--------------------- ----------------------------------
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of August __, 1996 duly executed
and delivered between the Company and The Bank of New York, a New York banking
corporation, as Trustee (herein referred to as the "Trustee"), as supplemented
by the [ ] Supplemental Indenture dated as of _____________, 199___ between
the Company and the Trustee (said Indenture as so supplemented being
hereinafter referred to as the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Debentures, and,
to the extent specifically set forth in the Indenture, the holders of Senior
Indebtedness and Preferred Securities. By the terms of the Indenture, the
Debentures are issuable in series which may vary as to amount, date of
maturity, rate of interest and in other respects as in the Indenture provided.
This series of Debentures is designated the ____% Junior Subordinated
Debentures due 20___ and is limited in aggregate principal amount as specified
in said [ ] Supplemental Indenture.
Except as provided in the next paragraph, the
Debentures may not be redeemed by the Company prior to
____________, 200____. The Company shall have the right to
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redeem this Debenture at the option of the Company, without premium or
penalty, in whole or in part at any time on or after __________ __, 200___ (an
"Optional Redemption"), at a redemption price equal to 100% of the principal
amount plus any accrued but unpaid interest, including any Compounded
Interest, if any, to the date of such redemption (the "Optional Redemption
Price"). Any redemption pursuant to this paragraph will be made upon not less
than 30 nor more than 60 days' notice, at the Optional Redemption Price. If
the Debentures are only partially redeemed by the Company pursuant to an
Optional Redemption, the Debentures will be redeemed pro rata or by lot or by
any other method utilized by the Trustee; provided if, at the time of
redemption, the Debentures are registered as a Global Debenture, the
Depository shall determine the principal amount of such Debentures held by
each holder of Debentures to be redeemed in accordance with its customary
procedures.
If, at any time, a Tax Event (as defined below) shall occur
or be continuing after receipt of a Dissolution Tax Opinion (as defined below)
and (i) the Regular Trustees and the Company shall have received an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent tax counsel
experienced in such matters that, as a result of a Tax Event, there is more
than an insubstantial risk that the Company would be precluded from deducting
the interest on the Series ____% Debentures for United States federal income
tax purposes even if the Series ____% Debentures were distributed to the
holders of Preferred Securities and Common Securities in liquidation of such
holder's interest in DLJ Capital [ ] as set forth in the Declaration of Trust
or (ii) the Regular Trustees shall have been informed by such tax counsel that
a No Recognition Opinion (as defined below) cannot be delivered to DLJ Capital
[ ], the Company shall have the right at any time, upon not less than 30 nor
more than 60 days' notice, to redeem the Series ____% Debentures in whole or
in part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees on behalf of DLJ Capital [ ]
the opportunity to eliminate, within such 90 day period, the Tax Event by
taking some ministerial action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure,
which has no adverse effect on DLJ Capital [ ], the Company or the holders of
the Preferred Securities, the Company or the Regular Trustees on behalf of DLJ
Capital [ ] will pursue such measure in lieu of redemption and provided
further that the Company shall have no right to redeem the Series ____%
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Debentures while the Regular Trustees on behalf of DLJ Capital [ ] are
pursuing any such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after _____________, 199___, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or
(d) any action taken by any governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after ______________, 199___, there is more than an
insubstantial risk that (i) DLJ Capital [ ] is, or will be within 90 days of
the date thereof, subject to United States federal income tax with respect to
income accrued or received on the Series ____% Debentures, (ii) DLJ Capital
[ ] is, or will be within 90 days of the date thereof, subject to more than a
de minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to DLJ Capital [ ] on the Series ____%
Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company for United States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of a dissolution of DLJ Capital [ ] and distribution of
the Series ____% Debentures as provided in the Declaration of Trust.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as described
above, the Debentures will be redeemed pro rata or by lot or in some other
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equitable manner determined by the Trustee. Notwithstanding the foregoing, if
a partial redemption of the Series ____% Debentures would result in the
delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, the
Company shall not be permitted to effect such partial redemption and will only
redeem the Series ____% Debentures in whole.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared, and upon such declaration shall become, due and payable, in
the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Debenture upon compliance by the Company
with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture (and, in the case of any series
of Debentures held as trust assets of a DLJ Capital Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of
holders of the Preferred Securities and the Common Securities of such DLJ
Capital Trust as may be required under the Declaration of Trust of such DLJ
Capital Trust), to execute supplemental indentures for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Holders of the Debentures; provided, however,
that no such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, without the consent of the holder
of each Debenture so affected or (ii) reduce the aforesaid percentage of
Debentures, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of each Debenture
(and, in the case
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of any series of Debentures held as trust assets of a DLJ Capital Trust and
with respect to which a Security Exchange has not theretofore occurred, such
consent of the holders of the Preferred Securities and the Common Securities
of such DLJ Capital Trust as may be required under the Declaration of Trust of
such DLJ Capital Trust) then outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Debentures of a series at the time outstanding
affected thereby (subject, in the case of any series of Debentures held as
trust assets of a DLJ Capital Trust and with respect to which a Securities
Exchange has not theretofore occurred, to such consent of holders of Preferred
Securities and Common Securities of such DLJ Capital Trust as may be required
under the Declaration of Trust of such DLJ Capital Trust), on behalf of the
Holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Debentures of such series. Any such consent or waiver
by the registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
Subject to Section 13.12 of the Indenture, no reference
herein to the Indenture (other than such Section) and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place at the
rate and in the money herein prescribed.
So long as the Company is not in default in the payment of
interest on the Debentures, the Company shall have the right, at any time
during the term of the Debentures, from time to time to extend the interest
payment period of such Debentures for up to 60 consecutive monthly interest
periods (the "Extended Interest Payment Period"), at the end of which period
the Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate of ____% per annum to the extent permitted by
applicable law, compounded monthly ("Compounded Interest")). During such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, or
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redeem, purchase, acquire or make a distribution or liquidation payment with
respect to, any of its common stock or preferred stock, or make any guarantee
payments with respect thereto, provided that (a) the Company may pay accrued
dividends (and cash in lieu of fractional shares) upon conversion of any
preferred stock of the Company as may be outstanding from time to time, in
each case in accordance with the terms of such stock and (b) the foregoing
will not apply to any stock dividends paid by the Company. Prior to the
termination of any such Extended Interest Payment Period, the Company may pay
all or any portion of the interest accrued on the Debentures on any Interest
Payment Date to holders of record on the regular record date for such Interest
Payment Date or from time to time further extend such Extended Interest
Payment Period, provided that such Period together with all such further
extensions thereof shall not exceed 60 consecutive monthly interest periods.
At the termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest then due, together with Compounded
Interest, the Company may select a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest on this Debenture shall be
due and payable during an Extended Interest Payment Period, except at the end
thereof. At the end of the Extended Interest Payment Period the Company shall
pay all interest accrued and unpaid on the Series ____% Debentures including
any Compounded Interest which shall be payable to the holders of the Series
____% Debentures in whose names the Series ____% Debentures are registered in
the Debenture register on the first record date after the end of the Extended
Interest Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the
registered holder hereof on the Debenture register of the Company, upon
surrender of this Debenture for registration of transfer at the office or
agency of the Company in the Borough of Manhattan, The City and State of New
York accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
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Prior to due presentment for registration of transfer of
this Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Debenture Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[If certificated Debentures -- The Debentures of this series
are issuable only in registered form without coupons in denominations of $25
and any integral multiple thereto.] [If Global Debenture -- This Global
Debenture is exchangeable for Debentures in definitive form under certain
limited circumstances set forth in the Indenture. Debentures of this series so
issued are issuable only in registered form without coupons in denominations
of $25 or any integral multiple thereof.] As provided in the Indenture and
subject to certain limitations [If Global Debenture -- herein and] therein set
forth, Debentures of this series [If Global Debenture -- so issued] are
exchangeable for a like aggregate principal amount of Debentures of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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ARTICLE SIX
Original Issue of Series ____% Debentures
SECTION 6.01. Except as provided in Section 1.01 and this
Section 6.01, Series ____% Debentures in the aggregate principal amount equal
to $____________ may, upon execution of this [ ] Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and
the trustee shall thereupon authenticate and make available for delivery said
Debentures to or upon the written order of the Company, signed by its
Chairman, its President, or any Vice President and its Treasurer or an
Assistant Treasurer, without any further action by the Company. Upon exercise
of the overallotment option set forth in the Underwriting Agreement,
additional Series ____% Debentures in the aggregate principal amount of up to
$______________ may be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and make
available for delivery said Series ____% Debentures executed as aforesaid by
the Company, to or upon the written order of the Company, which order shall be
accompanied by evidence satisfactory to the Trustee that the overallotment
option has been exercised.
ARTICLE SEVEN
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this
[ ] Supplemental Indenture or in the form of Series ____% Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in said form of Series ____% Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 7.02. The Indenture, as supplemented by this [ ]
Supplemental Indenture, is in all respects ratified and confirmed. This [ ]
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this [ ] Supplemental Indenture.
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SECTION 7.04. This [ ] Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this [ ]
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
DONALDSON, LUFKIN & JENRETTE, INC.
By _____________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By _______________________
Name:
Title:
Attest:
_____________________________
Name:
Title:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK ) __________, 199__
On the ______ day of ________, in the year one thousand nine
hundred ninety-______, before me personally came __________________ to me
known, who, being by me duly sworn, did depose and say that he resides at
________________________________; that he is ________________ of DONALDSON,
LUFKIN & JENRETTE, INC., one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporation
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
____________________________
NOTARY PUBLIC
My Commission Expires
27
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK ) ____________, 199__
On the ______ day of __________, in the year one thousand
nine hundred ninety-______ before me personally came ______________________ to
me known, who, being by me duly sworn, did depose and say that he resides at
________________________ that he is a ____________ of THE BANK OF NEW YORK,
one of the corporations described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation and that he signed his name thereto
by like authority.
________________________________
NOTARY PUBLIC
My Commission Expires
28
Exhibit 4.18
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DONALDSON, LUFKIN & JENRETTE, INC.
GUARANTEE AGREEMENT
Dated as of __________, 199_
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
SECTION 1.1 Definitions.................................................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ............................. 5
SECTION 2.2 Lists of Holders of Preferred
Securities............................................ 5
SECTION 2.3 Reports by the Guarantee Trustee.............................. 6
SECTION 2.4 Periodic Reports to Guarantee
Trustee............................................... 6
SECTION 2.5 Evidence of Compliance with
Conditions Precedent.................................. 6
SECTION 2.6 Events of Default; Waiver..................................... 6
SECTION 2.7 Disclosure of Information..................................... 7
SECTION 2.8 Conflicting Interest.......................................... 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the GUARANTEE
Trustee............................................... 7
SECTION 3.2 Certain Rights and Duties of the
GUARANTEE Trustee..................................... 8
SECTION 3.3 Not Responsible for Recitals or
Issuance of Guarantee................................. 11
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Qualifications................................................ 11
SECTION 4.2 Appointment, Removal and Resignation
of GUARANTEE Trustee.................................. 12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee..................................................... 13
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Page
SECTION 5.2 Waiver of Notice.............................................. 13
SECTION 5.3 Obligations Not Affected...................................... 14
SECTION 5.4 Enforcement of Guara.......................................... 15
SECTION 5.5 GUARANTEE of Payment.......................................... 15
SECTION 5.6 Subrogation................................................... 15
SECTION 5.7 Independent Obligations....................................... 16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.................................... 16
SECTION 6.2 Subordination................................................. 17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination................................................... 17
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Exculpation................................................... 17
SECTION 8.2 Indemnification............................................... 18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns........................................ 19
SECTION 9.2 Amendments.................................................... 19
SECTION 9.3 Notices....................................................... 19
SECTION 9.4 Genders....................................................... 20
SECTION 9.5 Benefit....................................................... 20
SECTION 9.6 Governing Law................................................. 20
SECTION 9.7 Counterparts.................................................. 20
SECTION 9.8 Exercise of Overallotment Option.............................. 21
ii
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of __________, 199_, is executed and
delivered by Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (the
"Guarantor"), and The Bank of New York, a New York banking corporation, as the
initial GUARANTEE Trustee (as defined herein) for the benefit of the Holders
(as defined herein) from time to time of the Preferred Securities (as defined
herein) of DLJ Capital Trust ___, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ______________, 199_ among the trustees of the
Issuer named therein, Donaldson, Lufkin & Jenrette, Inc., as Sponsor, and the
Holders from time to time of undivided beneficial interests in the assets of
the Issuer, the Issuer may issue up to _______________ aggregate liquidation
amount of its _____% Preferred Trust Securities (the "Preferred Securities")
representing undivided beneficial interests in the assets of the Issuer and
having the terms set forth in Exhibit B to the Declaration, of which
$_____________ liquidation amount of Preferred Securities are being issued as
of the date hereof. Up to the remaining $______________ liquidation amount of
Preferred Securities may be issued by the Issuer if and to the extent that the
over-allotment option granted by the Guarantor and the Issuer pursuant to the
Underwriting Agreement (as defined in the Declaration) is exercised by the
Underwriters named in the Underwriting Agreement.
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires to irrevocably and unconditionally agree, to the extent
set forth herein, to pay to the Holders of the Preferred Securities the
GUARANTEE Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by the initial
purchasers thereof of Preferred Securities, which purchase the Guarantor
hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers
this GUARANTEE Agreement for the benefit of the Holders from time to time of
the Preferred Securities.
<PAGE>
ARTICLE I
SECTION 1.1 Definitions.
(a) Capitalized terms used in this GUARANTEE Agreement but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this GUARANTEE Agreement has the same
meaning throughout;
(c) all references to "the GUARANTEE Agreement" or "this GUARANTEE
Agreement" are to this GUARANTEE Agreement as modified, supplemented or
amended from time to time;
(d) all references in this GUARANTEE Agreement to Articles and
Sections are to Articles and Sections of this GUARANTEE Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this GUARANTEE Agreement unless otherwise defined in this
GUARANTEE Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing undivided
beneficial interests in the assets of the Issuer, having the terms set forth
in Exhibit C to the Declaration.
"Covered Person" means any Holder of Preferred Securities.
"Debentures" means the series of Junior Subordinated Debentures
issued by the Guarantor under the Indenture to the Property Trustee and
entitled the "_____% Junior Subordinated Debentures due ____".
"Distributions" means the periodic distributions and other payments
payable to Holders of Preferred
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Securities in accordance with the terms of the Preferred Securities set forth
in Exhibit B to the Declaration.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this GUARANTEE Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions and the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to the Preferred Securities called for redemption by the Issuer but only if and
to the extent that in each case the Guarantor has made a payment to the Property
Trustee of interest or principal on the Debentures and (ii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer (other than
in connection with the distribution of Debentures to Holders or the redemption
of all the Preferred Securities upon the maturity or redemption of the
Debentures as provided in the Declaration), the lesser of (a) the aggregate of
the liquidation amount and all accrued and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the Issuer has
funds available therefor, or (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a Successor
GUARANTEE Trustee has been appointed and accepted such appointment pursuant to
the terms of this GUARANTEE Agreement and thereafter means each such Successor
GUARANTEE Trustee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any entity directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Guarantor.
"Indemnified Person" means the GUARANTEE Trustee, any Affiliate of
the GUARANTEE Trustee, and any officers, directors, shareholders, members,
partners, employees, representatives or agents of the GUARANTEE Trustee.
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"Indenture" means the Junior Subordinated Indenture dated as of
August __, 1996 between the Guarantor and The Bank of New York, as trustee, as
supplemented by the [ ] Supplemental Indenture thereto dated as of ___________
199___, pursuant to which the Debentures are to be issued.
"Majority in liquidation amount of the Preferred Securities" means,
except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class, who are
the record owners of Preferred Securities whose liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) represents more than 50% of the liquidation amount
of all outstanding Preferred Securities.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning set forth in the first
WHEREAS clause above.
"Property Trustee" means the Person acting as Property Trustee under
the Declaration.
"Redemption Price" means the amount payable on redemption of the
Preferred Securities in accordance with the terms of the Preferred Securities.
"Responsible Officer" means, with respect to the GUARANTEE Trustee,
the chairman of the board of directors, the president, any vice-president, any
assistant vice-president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the GUARANTEE Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"66-2/3% in liquidation amount of the Preferred Securities" means,
except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class who are the
record owners
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of Preferred Securities whose liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) represents 66-2/3% or more of the liquidation amount of all
Preferred Securities.
"Successor GUARANTEE Trustee" means a successor GUARANTEE Trustee
possessing the qualifications to act as a GUARANTEE Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This GUARANTEE Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this GUARANTEE Agreement
and shall, to the extent applicable, be governed by such provisions;
(b) if and to the extent that any provision of this GUARANTEE
Agreement limits, qualifies or conflicts with the duties imposed by ss.ss. 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control; and
(c) the application of the Trust Indenture Act to this GUARANTEE
Agreement shall not affect the nature of the Preferred Securities as equity
securities representing undivided beneficial interests in the assets of the
Issuer.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) The Guarantor shall provide the GUARANTEE Trustee with such
information as is required under ss. 312(a) of the Trust Indenture Act at the
times and in the manner provided in ss. 312(a); and
(b) the GUARANTEE Trustee shall comply with its obligations under
ss.ss. 310(b), 311 and 312(b) of the Trust Indenture Act.
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SECTION 2.3 Reports by the GUARANTEE Trustee.
Within 60 days after May 15 of each year, the GUARANTEE Trustee
shall provide to the Holders of the Preferred Securities such reports as are
required by ss. 313 of the Trust Indenture Act, if any, in the form, in the
manner and at the times provided by ss. 313 of the Trust Indenture Act. The
GUARANTEE Trustee shall also comply with the requirements of ss. 313(d) of the
Trust Indenture Act.
SECTION 2.4 Periodic Reports to GUARANTEE Trustee.
The Guarantor shall provide to the GUARANTEE Trustee, the Commission
and the Holders of the Preferred Securities, as applicable, such documents,
reports and information as required by ss. 314(a)(1)-(3) (if any) of the Trust
Indenture Act and the compliance certificates required by ss. 314(a)(4) and
(c) of the Trust Indenture Act, any such certificates to be provided in the
form, in the manner and at the times required by ss. 314(a)(4) and (c) of the
Trust Indenture Act (provided that any certificate to be provided pursuant to
ss. 314(a)(4) of the Trust Indenture Act shall be provided within 120 days of
the end of each fiscal year of the Issuer).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the GUARANTEE Trustee such evidence
of compliance with any conditions precedent, if any, provided for in this
GUARANTEE Agreement which relate to any of the matters set forth in ss. 314(c)
of the Trust Indenture Act. Any certificate or opinion required to be given
pursuant to ss. 314(c) shall comply with ss. 314(e) of the Trust Indenture
Act.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(b), Holders of Preferred Securities may
by vote of at least a Majority in liquidation amount of the Preferred
Securities, (A) direct the time, method and place of conducting any proceeding
for any remedy available to the GUARANTEE Trustee, or exercising any trust or
power conferred upon by the GUARANTEE Trustee or (B) on behalf of the Holders
of all Preferred Securities waive any past Event of Default and its
consequences. Upon such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this GUARANTEE Agreement, but no such waiver shall extend to
any subsequent or other
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default or Event of Default or impair any right consequent
thereon.
(b) The right of any Holder of Preferred Securities to receive
payment of the GUARANTEE Payments in accordance with this GUARANTEE Agreement,
or to institute suit for the enforcement of any such payment, shall not be
impaired without the consent of each such Holder.
SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of the
Holders of the Preferred Securities in accordance with ss. 312 of the Trust
Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted which does not specifically refer to ss. 312 of the Trust
Indenture Act, nor shall the GUARANTEE Trustee be held accountable by reason
of mailing any material pursuant to a request made under ss. 312(b) of the
Trust Indenture Act.
SECTION 2.8 Conflicting Interest.
The Declaration shall be deemed to be specifically described in this
GUARANTEE Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the GUARANTEE Trustee.
(a) This GUARANTEE Agreement shall be held by the GUARANTEE
Trustee in trust for the benefit of the Holders of the Preferred Securities.
The GUARANTEE Trustee shall not transfer its right, title and interest in the
GUARANTEE Agreement to any Person except a Successor GUARANTEE Trustee on
acceptance by such Successor GUARANTEE Trustee of its appointment to act as
GUARANTEE Trustee or to a Holder of Preferred Securities exercising his or her
rights pursuant to Section 5.4. The right, title and interest of the GUARANTEE
Trustee to the GUARANTEE Agreement shall vest automatically in each Person who
may hereafter be appointed as GUARANTEE Trustee in accordance with Article IV.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
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(b) If an Event of Default occurs and is continuing, the GUARANTEE
Trustee shall enforce this GUARANTEE Agreement for the benefit of the Holders
of the Preferred Securities.
(c) This GUARANTEE Agreement and all moneys received by the Property
Trustee hereunder in respect of the GUARANTEE Payments will not be subject to
any right, charge, security interest, lien or claim of any kind in favor of,
or for the benefit of that GUARANTEE Trustee or its agents or their creditors.
(d) The GUARANTEE Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
holders of the Preferred Securities, as their names and addresses appear upon
the register, notice of all Events of Default known to the GUARANTEE Trustee,
unless such defaults shall have been cured before the giving of such notice;
provided, that, the GUARANTEE Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers, of the GUARANTEE
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of the Preferred Securities. The GUARANTEE Trustee
shall not be deemed to have knowledge of any default except any default as to
which the GUARANTEE Trustee shall have received written notice or a
Responsible Officer charged with the administration of this GUARANTEE
Agreement shall have obtained written notice.
(e) The GUARANTEE Trustee shall not resign as a Trustee unless a
Successor GUARANTEE Trustee has been appointed and accepted that appointment
in accordance with Article IV.
SECTION 3.2 Certain Rights and Duties of the GUARANTEE Trustee.
(a) The GUARANTEE Trustee, before the occurrence of an Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this GUARANTEE Agreement, and no implied covenants shall be read into this
GUARANTEE Agreement against the GUARANTEE Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6(a)),
the GUARANTEE Trustee shall exercise such of the rights and powers vested in
it by this GUARANTEE Agreement, and use the same degree of care and skill in
their exercise, as a prudent person
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would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) No provision of this GUARANTEE Agreement shall be construed to
relieve the GUARANTEE Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the GUARANTEE Trustee shall be
determined solely by the express provisions of this GUARANTEE
Agreement, and the GUARANTEE Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this GUARANTEE Agreement, and no
implied covenants or obligations shall be read into this
GUARANTEE Agreement against the GUARANTEE Trustee; and
(B) in the absence of bad faith on the part of the GUARANTEE
Trustee, the GUARANTEE Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the GUARANTEE Trustee and conforming to the requirements of
this GUARANTEE Agreement; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the GUARANTEE Trustee,
the GUARANTEE Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of
this GUARANTEE Agreement;
(ii) the GUARANTEE Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the GUARANTEE
Trustee, unless it shall be proved that the GUARANTEE Trustee was
negligent in ascertaining the pertinent facts;
(iii) the GUARANTEE Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of Preferred Securities as provided
herein relating to the time, method and place of conducting any
proceeding for any remedy available to the
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GUARANTEE Trustee, or exercising any trust or power conferred upon the
GUARANTEE Trustee under this GUARANTEE Agreement; and
(iv) no provision of this GUARANTEE Agreement shall require the
GUARANTEE Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
GUARANTEE Agreement or adequate indemnity against such risk or liability
is not reasonably assured to it.
(c) Subject to the provisions of Section 3.2(a) and (b):
(i) whenever in the administration of this GUARANTEE Agreement, the
GUARANTEE Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
the GUARANTEE Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon a certificate, which shall comply with the provisions of ss.
314(e) of the Trust Indenture Act, signed by any authorized officer of
the Guarantor;
(ii) the GUARANTEE Trustee (A) may consult with counsel (which may
be counsel to the Guarantor or any of its Affiliates and may include any
of its employees) selected by it in good faith and with due care and the
written advice or opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice and opinion and (B)
shall have the right at any time to seek instructions concerning the
administration of this GUARANTEE Agreement from any court of competent
jurisdiction;
(iii) the GUARANTEE Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the GUARANTEE Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it in good faith and with due care;
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(iv) the GUARANTEE Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this GUARANTEE Agreement at
the request or direction of any Holders of Preferred Securities, unless
such Holders shall have offered to the GUARANTEE Trustee reasonable
security and indemnity against the costs, expenses (including its
attorneys' fees and expenses) and liabilities that might be incurred by
it in complying with such request or direction; provided that nothing
contained in this clause (iv) shall relieve the GUARANTEE Trustee of the
obligation, upon the occurrence of an Event of Default (which has not
been cured or waived) to exercise such of the rights and powers vested in
it by this GUARANTEE Agreement, and to use the same degree of care and
skill in this exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs; and
(v) any action taken by the GUARANTEE Trustee or its agents
hereunder shall bind the Holders of the Preferred Securities and the
signature of the GUARANTEE Trustee or its agents alone shall be
sufficient and effective to perform any such action; and no third party
shall be required to inquire as to the authority of the GUARANTEE Trustee
to so act, or as to its compliance with any of the terms and provisions
of this GUARANTEE Agreement, both of which shall be conclusively
evidenced by the GUARANTEE Trustee's or its agent's taking such action.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this GUARANTEE shall be taken as the
statements of the Guarantor and the GUARANTEE Trustee does not assume any
responsibility for their correctness. The GUARANTEE Trustee makes no
representations as to the validity or sufficiency of this GUARANTEE Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Qualifications.
(a) There shall at all times be a GUARANTEE Trustee which shall:
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(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
If at any time the GUARANTEE Trustee shall cease to satisfy the
requirements of clauses (i)-(ii) above, the GUARANTEE Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2.
If the GUARANTEE Trustee has or shall acquire any "conflicting interest"
within the meaning of ss. 310(b) of the Trust Indenture Act, the GUARANTEE
Trustee and the Guarantor shall in all respects comply with the provisions of
ss. 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation
of GUARANTEE Trustee.
(a) Subject to Section 4.2(b), the GUARANTEE Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The GUARANTEE Trustee shall not be removed in accordance with Section
4.2(a) until a Successor GUARANTEE Trustee possessing the qualifications
to act as GUARANTEE Trustee under Section 4.1(a) has been appointed and
has accepted such appointment by written instrument executed by such
Successor GUARANTEE Trustee and delivered to the Guarantor and the
GUARANTEE Trustee being removed.
(c) The GUARANTEE Trustee appointed to office shall hold office until his
successor shall have been appointed or until its removal or resignation.
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(d) The GUARANTEE Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the GUARANTEE Trustee and delivered to the Guarantor,
which resignation shall take effect upon such delivery or upon such later
date as is specified therein; provided, however, that no such resignation
of the GUARANTEE Trustee shall be effective until a Successor GUARANTEE
Trustee possessing the qualifications to act as GUARANTEE Trustee under
Section 4.1(a) has been appointed and has accepted such appointment by
instrument executed by such Successor GUARANTEE Trustee and delivered to
Guarantor and the resigning GUARANTEE Trustee.
(e) If no Successor GUARANTEE Trustee shall have been
appointed and accepted appointment as provided in this
Section 4.2 within 60 days after delivery to the
Guarantor of a Resignation Request, the resigning
GUARANTEE Trustee may petition any court of competent
jurisdiction for appointment of a Successor GUARANTEE
Trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, appoint a
Successor GUARANTEE Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the GUARANTEE Payments (without duplication of amounts
theretofore paid by the Issuer) regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation
to make a GUARANTEE Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 5.2 Waiver of Notice.
The Guarantor hereby waives notice of acceptance of this GUARANTEE
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice
of nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.
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SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this GUARANTEE Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Debentures), Redemption Price, Liquidation
Distribution (as defined in the Declaration) or any other sums payable
under the terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence
or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guarad hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the
Guarantor
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hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Enforcement of Guarantee.
The Guarantor and the GUARANTEE Trustee expressly acknowledge that
(i) this GUARANTEE Agreement will be deposited with the GUARANTEE Trustee to
be held for the benefit of the Holders; (ii) the GUARANTEE Trustee has the
right to enforce this GUARANTEE Agreement on behalf of the Holders; (iii)
Holders representing not less than a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available in respect of this
GUARANTEE Agreement including the giving of directions to the GUARANTEE
Trustee, or exercising any trust or other power conferred upon the GUARANTEE
Trustee under this GUARANTEE Agreement, and (iv) if the GUARANTEE Trustee
fails to enforce this GUARANTEE Agreement, any Holder of Preferred Securities
may institute a legal proceeding directly against the Guarantor to enforce its
rights under this GUARANTEE Agreement, without first instituting a legal
proceeding against the Issuer, the GUARANTEE Trustee, or any other Person.
SECTION 5.5 GUARANTEE of Payment.
This GUARANTEE Agreement creates a GUARANTEE of payment and not
merely of collection. This GUARANTEE Agreement will not be discharged except
by payment of the GUARANTEE Payments in full (without duplication of amounts
theretofore paid by the Issuer).
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by
the Guarantor under this GUARANTEE Agreement; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this GUARANTEE Agreement, if, at the time
of any such payment, any amounts are due and unpaid under this GUARANTEE
Agreement. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the
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Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make GUARANTEE Payments pursuant to the terms of this GUARANTEE
Agreement notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, the
Guarantor will not declare or pay dividends on, or redeem, purchase, acquire
or make a distribution or liquidation payment with respect to, any of its
common stock or preferred stock or make any GUARANTEE payment with respect
thereto if at such time (i) the Guarantor shall be in default with respect to
its GUARANTEE Payments or other payment obligations hereunder, (ii) there
shall have occurred any event of default under the Declaration or (iii) the
Guarantor shall have given notice of its selection of an Extension Period (as
defined in the Indenture) and such period, or any extension thereof, is
continuing; provided that (a) the Guarantor will be permitted to pay accrued
dividends (and cash in lieu of fractional shares) upon the conversion of any
preferred stock of the Guarantor as may be outstanding from time to time, in
each case in accordance with the terms of such stock and (b) the foregoing
will not apply to any stock dividends paid by the Guarantor. In addition, so
long as any Preferred Securities remain outstanding, the Guarantor (i) will
remain the sole direct or indirect owner of all of the outstanding Common
Securities and shall not cause or permit the Common Securities to be
transferred except to the extent such transfer is permitted under Section
9.1(c) of the Declaration; provided that any permitted successor of the
Guarantor under the Indenture may succeed to the Guarantor's ownership of the
Common Securities and (ii) will use reasonable efforts to cause the Issuer to
continue to be treated as a grantor trust for United States federal income
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tax purposes except in connection with a distribution of Debentures as
provided in the Declaration.
SECTION 6.2 Subordination.
This GUARANTEE Agreement will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, including the Debentures, except those
made pari passu or subordinate by their terms, and (ii) senior to all capital
stock now or hereafter issued by the Guarantor and to any GUARANTEE now or
hereafter entered into by the Guarantor in respect of any of its capital
stock. The Guarantor's obligations under this GUARANTEE Agreement will rank
pari passu with respect to obligations under other GUARANTEE agreements which
it may enter into from time to time to the extent that such agreements shall
be entered into in substantially the form hereof and provide for comparable
guarantees by the Guarantor of payment on preferred securities issued by other
DLJ Capital Trusts.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This GUARANTEE Agreement shall terminate and be of no further force
and effect upon full payment of the Redemption Price of all Preferred
Securities, or upon the distribution of Debentures to Holders of Preferred
Securities and Common Securities in exchange for all of the Preferred
Securities and Common Securities, or upon full payment of the amounts payable
in accordance with the Declaration upon liquidation of the Issuer.
Notwithstanding the foregoing, this GUARANTEE Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sums paid with respect to the Preferred Securities
or this GUARANTEE Agreement.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Exculpation.
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(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this GUARANTEE Agreement or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Preferred
Securities might properly be paid.
SECTION 8.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the Guarantor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith and
in a manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by this GUARANTEE Agreement,
except that no Indemnified Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such Indemnified Person by
reason of negligence or willful misconduct with respect to such acts or
omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Guarantor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Guarantor of an
undertaking by or on behalf of the Indemnified Person to repay such amount if
it shall be
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determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this GUARANTEE
Agreement shall bind the successors, assignees, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article Ten of the Indenture, the Guarantor shall not assign its obligations
hereunder.
SECTION 9.2 Amendments.
Except with respect to any changes which do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
GUARANTEE Agreement may only be amended with the prior approval of the Holders
of not less than 66-2/3% in liquidation amount of the Preferred Securities.
The provisions of Section 12.2 of the Declaration concerning meetings of
Holders shall apply to the giving of such approval.
SECTION 9.3 Notices.
Any notice, request or other communication required or permitted to
be given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or
such other address as the Guarantor may give notice of to the Holders:
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Facsimile No.: (212) 892-2608
Attention: General Counsel
19
<PAGE>
(b) if given to the GUARANTEE Trustee, to the address set forth
below or such other address as the GUARANTEE Trustee may give notice to the
Holders:
The Bank of New York
101 Barclay Street
Floor 21W
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Trustee Administration
(c) if given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 Genders.
The masculine, feminine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 9.5 Benefit.
This GUARANTEE Agreement is solely for the benefit of the Holders
and subject to Section 3.1(a) is not separately transferable from the
Preferred Securities.
SECTION 9.6 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 9.7 Counterparts.
This GUARANTEE Agreement may be executed in counterparts, each of
which shall be an original; but such counterparts shall together constitute
one and the same instrument.
20
<PAGE>
SECTION 9.8 Exercise of Overallotment Option.
If and to the extent that Preferred Securities are issued by the
Issuer upon exercise of the overallotment option referred to the second
WHEREAS clause, the Guarantor agrees to give prompt notice thereof to the
GUARANTEE Trustee but the failure to give such notice shall not relieve the
Guarantor of any of its obligations hereunder.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
DONALDSON, LUFKIN & JENRETTE, INC.
By:____________________________
Name:
Title:
THE BANK OF NEW YORK,
As GUARANTEE Trustee
By:________________________
Name:
Title:
21
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of ________, 199_,
personally appeared _______________ of Donaldson, Lufkin & Jenrette, Inc.,
known to me (or proved to me by introduction upon the oath of a person known
to me) to be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that he/she executed the same as the act of
such trust for the purposes and consideration herein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF __________, 199_.
[SEAL]
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
22
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of ________, 199_,
personally appeared _______________ of The Bank of New York, known to me (or
proved to me by introduction upon the oath of a person known to me) to be the
person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same as the act of such trust for
the purposes and consideration herein expressed and int he capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF __________,
199_.
[SEAL]
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
23
EXHIBIT 5.1
[Davis Polk & Wardwell Letterhead]
August 15, 1996
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
We have acted as counsel in connection with the Company's
Registration Statement on Form S-3 (the "REGISTRATION STATEMENT") filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, for the registration of the sale by Donaldson, Lufkin & Jenrette,
Inc. (the "Company") from time to time of up to $500,000,000 aggregate
principal amount of senior, subordinated and junior subordinated debt
securities (the "DEBT SECURITIES") and preferred stock, par value $0.01 per
share (the "PREFERRED STOCK") of the Company and preferred securities (the
"PREFERRED SECURITIES") of DLJ Capital Trust I, DLJ Capital Trust II, DLJ
Capital Trust III and DLJ Capital Trust IV, each a statutory business trust
created under the Business Trust Act of the State of Delaware (each a "TRUST"
and collectively, the "TRUSTS") and guarantees of the Preferred Securities by
the Company (the "GUARANTEES"). The senior Debt Securities are to be issued
pursuant to the Indenture dated as of October 25, 1995 (the "SENIOR
INDENTURE") between the Company and The Bank of New York, as Trustee. The
subordinated Debt Securities are to be issued pursuant to an Indenture (the
"SUBORDINATED INDENTURE") between the Company and The Bank of New York, as
Trustee. The junior subordinated Debt Securities are to be issued pursuant to
an Indenture (the "JUNIOR SUBORDINATED INDENTURE") between the Company and The
Bank of New York, as Trustee. The Bank of New York in its capacity as Trustee
under the Senior Indenture, the Subordinated Indenture and the Junior
Subordinated Indenture is referred to herein as the "TRUSTEE" and the Senior
Indenture, Subordinated Indenture and Junior Subordinated Indenture are
referred to herein collectively as the "INDENTURES".
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary for the purposes of rendering this opinion.
<PAGE>
Donaldson, Lufkin &
Jenrette, Inc. -2- August 15, 1996
On the basis of the foregoing, we are of the opinion that:
1. When the Indentures and any supplemental indenture to be
entered into in connection with the issuance of any Debt Security
have been duly authorized, executed and delivered by the Trustee and
the Company, the specific terms of a particular Debt Security have
been duly authorized and established in accordance with the
applicable Indenture and such Debt Security has been duly authorized,
executed, authenticated, issued and delivered in accordance with the
applicable Indenture and the applicable underwriting or other
agreement, such Debt Security will constitute a valid and binding
obligation of the Company, enforceable in accordance with its terms,
except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or similar laws now or hereinafter in effect relating to
or affecting the enforcement of creditors' rights generally and (b)
the availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether considered
in a proceeding at law or in equity).
2. Upon designation of the relative rights, preferences and
limitations of any series of Preferred Stock by the Board of
Directors of the Company and the proper filing with the Secretary of
State of the State of Delaware of a Certificate of Designation
relating to such series of Preferred Stock, all necessary corporate
action on the part of the Company will have been taken to authorize
the issuance and sale of such series of Preferred Stock proposed to
be sold by the Company, and when such shares of Preferred Stock are
issued and delivered in accordance with the applicable underwriting
or other agreement, such shares of Preferred Stock will be validly
issued, fully paid and non-assessable, enforceable in accordance with
their terms, except as (a) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or similar laws now or hereinafter in effect relating to
or affecting the enforcement of creditors' rights generally and (b)
the availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether considered
in a proceeding at law or in equity).
<PAGE>
Donaldson, Lufkin &
Jenrette, Inc. -3- August 15, 1996
3. When the Guarantees have been duly authorized by the
Company, the applicable Guarantee Agreement has been duly executed
and delivered and the Preferred Securities have been duly issued and
delivered by the applicable Trust as contemplated by the Registration
Statement and any prospectus supplement relating thereto, the
Guarantees will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or similar laws now
or hereinafter in effect relating to or affecting the enforcement of
creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at
law or in equity).
In connection with the opinions expressed above, we have
assumed that, at or prior to the time of the delivery of any such security,
(i) the Board of Directors shall have duly established the terms of such
security and duly authorized the issuance and sale of such security and such
authorization shall not have been modified or rescinded; (ii) the Registration
Statement shall have been declared effective and such effectiveness shall not
have been terminated or rescinded; and (iii) there shall not have occurred any
change in law affecting the validity or enforceability of such security. We
have also assumed that none of the terms of any security to be established
subsequent to the date hereof, nor the issuance and delivery of such security,
nor the compliance by the Company with the terms of such security will violate
any applicable law or will result in a violation of any provision of any
instrument or agreement then binding upon the Company, or any restriction
imposed by any court or governmental body having jurisdiction over the
Company.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the
State of Delaware.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. In addition, we consent to the
reference to us under the caption "Legal Matters" in the prospectus.
<PAGE>
Donaldson, Lufkin &
Jenrette, Inc. -4- August 15, 1996
This opinion is rendered solely to you in connection with
the above matter. This opinion may not be relied upon by you for any other
purpose or relied upon by or furnished to any other person without our prior
written consent.
Very truly yours,
/s/ Davis Polk & Wardwell
[Letterhead of Richards, Layton & Finger]
August 15, 1996
DLJ Capital Trust I
DLJ Capital Trust II
DLJ Capital Trust III
DLJ Capital Trust IV
c/o Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, NY 10172
Re: DLJ Capital Trust I, DLJ Capital Trust II, DLJ Capital Trust III
and DLJ Capital Trust IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for Donaldson, Lufkin
& Jenrette, Inc., a Delaware corporation ("DLJ"), DLJ Capital Trust I, a
Delaware business Trust ("Trust I"), DLJ Capital Trust II, a Delaware business
trust ("Trust II"), DLJ Capital Trust III, a Delaware business trust ("Trust
III"), and DLJ Capital Trust IV, a Delaware business trust ("Trust IV") (Trust
I, Trust II, Trust III and Trust IV are hereinafter collectively referred to as
the "Trusts" and sometimes hereinafter individually referred to as a "Trust"),
in connection with the matters set forth herein. At your request, this opinion
is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
DLJ Capital Trust I
DLJ Capital Trust II
DLJ Capital Trust III
DLJ Capital Trust IV
August 15, 1996
Page 2
(a) The Certificate of Trust of Trust I, dated as of June
14, 1996, as filed with the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on June 19, 1996;
(b) The Certificate of Trust of Trust II, dated as of June
14, 1996, as filed with the Secretary of State on June 19, 1996;
(c) The Certificate of Trust of Trust III, dated as of June
14, 1996, as filed with the Secretary of State on June 19, 1996;
(d) The Certificate of Trust of Trust IV, dated as of June
14, 1996, as filed with the Secretary of State on June 19, 1996 (the
Certificates of Trust described in items (a)-(d) are hereinafter collectively
referred to as the "Certificates of Trust");
(e) The Declaration of Trust of Trust I, dated as of June
14, 1996, between DLJ and the trustees of Trust I named therein;
(f) The Declaration of Trust of Trust II, dated as of June
14, 1996, between DLJ and the trustees of Trust II named therein;
(g) The Declaration of Trust of Trust III, dated as of June
14, 1996, between DLJ and the trustees of Trust III named therein;
(h) The Declaration of Trust of Trust IV, dated as of June
14, 1996, between DLJ and the trustees of Trust IV named therein;
(i) Amendment No. 1 to the Registration Statement (the
"Registration Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to the Preferred Securities of the Trusts representing
preferred undivided beneficial interests in the assets of the Trusts (each, a
"Preferred Security" and collectively, the "Preferred Securities"), to be filed
by DLJ and the Trusts with the Securities and Exchange Commission on August 15,
1996;
(j) A form of Amended and Restated Declaration of Trust for
each of the Trusts, to be entered into between DLJ, the trustees of the Trust
named therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of the Trust (including the exhibits thereto)
(collectively, the "Declarations" and individually, a "Declaration"), attached
as an exhibit to the Registration Statement; and
DLJ Capital Trust I
DLJ Capital Trust II
DLJ Capital Trust III
DLJ Capital Trust IV
August 15, 1996
Page 3
(k) A Certificate of Good Standing for each of the Trusts,
dated August 15, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declarations.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (k) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (k) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of
the Declarations constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the applicable Trust, and that the Declarations and
the Certificates of Trust are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation, (iii) the legal capacity
of natural persons who are parties to the documents examined by us, (iv) that
each of the parties to the documents examined by us has the power and authority
to execute and deliver, and to perform its obligation under, such documents, (v)
the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trusts (collectively, the "Preferred Security
Holders") of a Preferred Security Certificate for such Preferred Security and
the payment for such Preferred Security, in accordance with the Declarations and
the Registration Statement, and (vii) that the Preferred Securities are issued
and sold to the Preferred Security Holders in accordance with the Declarations
and the Registration
DLJ Capital Trust I
DLJ Capital Trust II
DLJ Capital Trust III
DLJ Capital Trust IV
August 15, 1996
Page 4
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly
existing in good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each Trust will represent
valid and, subject to the qualifications set forth in paragraph 3 below, fully
paid and nonassessable undivided beneficial interests in the assets of the
applicable Trust.
3. The Preferred Security Holders, as beneficial owners of
the applicable Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated pursuant to the applicable
Declaration, to (i) provide indemnity and security in connection with and pay
taxes or governmental charges arising from transfers of Preferred Security
Certificates and the issuance of replacement Preferred Security Certificates,
(ii) provide security and indemnity in connection with requests of or direction
to the Property Trustee to exercise its rights and remedies under the applicable
Declaration, and (iii) undertake as a party litigant to pay costs in any suit
for the enforcement of any right or remedy under the applicable Declaration or
against the Property Trustee, to the extent provided in the applicable
Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required
DLJ Capital Trust I
DLJ Capital Trust II
DLJ Capital Trust III
DLJ Capital Trust IV
August 15, 1996
Page 5
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other person for any purpose.
Very truly yours,
/s/ Richards,Layton & Finger
-----------------------------
EXHIBIT 8.1
[Letterhead of Davis Polk & Wardwell]
August 15, 1996
Donaldson, Lufkin & Jenrette, Inc.
DLJ Capital Trust I
c/o Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, NY 10172
Ladies and Gentlemen:
We have acted as special tax counsel to Donaldson, Lufkin &
Jenrette, Inc. ("DLJ") and DLJ Capital Trust I (the "Trust") in connection
with the Trust's issuance of its Preferred Trust Securities (the "Preferred
Securities").
You have requested our opinion whether the Trust, which has
been formed under the Delaware Business Trust Act, 12 Del. Code ss. 3801 et
seq (the "Delaware Business Trust Act"), will be treated as a grantor trust
for federal income tax purposes.
In rendering our opinion, we have examined the form of
Amended and Restated Declaration of Trust of DLJ Capital Trust II dated as of
October 11, 1995 (the "Declaration"), the Prospectus Supplement to the
Prospectus filed by DLJ and the Trust with the Securities and Exchange
Commission and such other materials as we have deemed necessary for the
purposes of this opinion. For the purposes of this opinion, we have assumed
that the Trustees will conduct the affairs of the Trust in accordance with the
terms of the Declaration. Except as otherwise noted, capitalized terms used
herein have the same meaning as in the Declaration.
Purposes of the Trust; Terms of the Securities
The Trust was formed under the Delaware Business Trust Act
in connection with the issuance of its Preferred and Common Securities.
Pursuant to the Declaration, the exclusive purposes and functions of the Trust
are:
(a) (i) to issue its Preferred Securities for cash in
consideration for the deposit by DLJ as trust
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
DLJ Capital Trust I August 15, 1996
assets of DLJ's Junior Subordinated Debentures due 2046 (the
"Debentures") in a principal amount equal to the aggregate
liquidation amount of the Preferred Securities, and
(ii) to issue its Common Securities to DLJ for cash and to
use the proceeds of such sale to purchase as trust assets an
equal principal amount of additional Debentures, and
(b) except as otherwise limited by the terms of the Declaration,
to engage in only those other activities necessary or
incidental thereto.
The Trust will not conduct any business other than holding
and conserving the Trust assets, will hold no assets other than the
Debentures, and may not borrow money, issue debt or reinvest proceeds derived
from the Debentures, or pledge any of its assets. The Trustees are required to
promptly distribute to the holders of Preferred Securities and Common
Securities all proceeds received by the Trust from holding the Debentures.
The Preferred Securities and the Common Securities
(together, the "Securities") evidence undivided beneficial interests in the
assets of the Trust. The terms of the Securities provide for cumulative cash
distributions with respect to each $25 liquidation amount of the Securities at
the same annual rate as stated interest is payable with respect to each $25
principal amount of the Debentures. The Preferred Securities and the Common
Securities will rank pari passu with each other and will have equivalent
terms, except that, if an Event of Default (as defined in the Indenture)
occurs and is continuing with respect to the Debentures, the holders of
Preferred Securities will have a payment preference over holders of the Common
Securities. The Common Securities will be held by DLJ. The Declaration
provides that DLJ may not transfer the Common Securities, with the exception
that DLJ may transfer the Common Securities to an affiliate if DLJ obtains an
opinion of counsel to the effect that doing so will not cause the Trust to be
treated as anything other than a grantor trust for federal income tax
purposes.
2
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
DLJ Capital Trust I August 15, 1996
Classification of the Trust for
Federal Income Tax Purposes
Treasury Reg. ss. 301.7701-4(c)(1) provides that an
"investment trust" with a single class of ownership interests, representing
undivided beneficial interests in the assets of the trust, will be classified
as a trust if there is no power under the trust agreement to vary the
investment of the certificate holders. An "investment trust" with multiple
classes of ownership interests will be classified as a trust if (1) there is
no power under the trust agreement to vary the investment and (2) the trust is
formed to facilitate direct investment in the assets of the trust and the
existence of multiple classes of ownership interests is incidental to that
purpose.
1. Investment Trust; Power to Vary the Investment
The purpose of the Trust is limited to issuing securities
evidencing an investment in the Debentures held by the Trust, and, as
discussed below, the Trust's and the Trustee's powers do not permit it to be
used as a medium to conduct business. The Delaware Business Trust Act
contemplates the creation of trusts for such limited purposes, although it
also applies to business trusts formed for the purpose of conducting an active
business.(1)
- --------
(1) Section 3801(a) of the Delaware Business Trust Act defines the term
"business trust" broadly to include, inter alia, an unincorporated business
association created by a trust instrument under which property is or will
be held and administered for the benefit of such person or persons who are
or may become entitled to a beneficial interest in the trust property. This
section of the Delaware Business Trust Act reflects a 1992 amendment,
which, according to Martin I. Lubaroff of Richards, Layton & Finger, was
specifically intended to make it clear that a trust limited to purposes
permitting it to qualify as a grantor trust for federal tax purposes could
be formed as a "business trust" under the Delaware Business Trust Act. See
letter dated July 29, 1992, from Martin I. Lubaroff to Kenneth W. Gideon,
Assistant Secretary of the Treasury (Tax Policy), as published in Tax Notes
Today, 92 TNT 165-58 (August 13, 1992). See also Rev. Rul. 79-116, 1979-1
C.B. 213, in which the Internal Revenue Service classified a trust formed
as a "business trust" under foreign law as a grantor trust.
3
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
DLJ Capital Trust I August 15, 1996
The Trust's and the Trustee's powers under the Declaration
will be limited to the ministerial duties of collecting payments on the
Trust's passive investments (i.e., the Debentures), remitting such payments to
the holders of the Securities and discharging the obligations of the Trust to
distribute the Debentures to the holders of the Securities in the event of the
occurrence of certain special events arising from a change in law or a change
in legal interpretation in accordance with the terms of the Securities.
The Trustees may not dispose of the Debentures (other than
in the event of their repayment or redemption or by way of distribution to the
holders of the Securities), may not reinvest amounts received by the Trust
with respect to the Debentures, and will not otherwise have any discretion or
power to make investment decisions. The Declaration may not be amended by the
Trustees unless the Trustees receive an opinion of tax counsel to the effect
that such amendment will not cause the Trust to be treated as anything other
than a grantor trust for federal income tax purposes. Accordingly, the Trust
is an investment trust the assets of which are fixed upon establishment of the
Trust, and there will be no power under the Declaration to vary the investment
of the Trust.
2. Multiple Classes of Ownership
Interests in the Trust will be represented by the Common
Securities to be issued to DLJ and the Preferred Securities to be issued to
purchasers for cash. Because DLJ is the issuer of the Debentures, the portion
of the Debentures considered to have been issued to the Trust in exchange for
the Common Securities may be treated as not outstanding and the Common
Securities may be disregarded for federal income tax purposes. If the Common
Securities were disregarded, the Trust would be treated as having a single
class of interests represented by the Preferred Securities.
If the Common Securities were not disregarded, the Trust
would be treated as having multiple classes of ownership because, in the event
of default on the Debentures, the payment rights of the holders of Preferred
Securities are senior to the payment rights of DLJ as the
4
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
DLJ Capital Trust I August 15, 1996
holder of Common Securities. The Preferred Securities and the Common
Securities are otherwise substantially equivalent in all material respects and
do not provide for a division of ownership interests in the Debentures,
through the use of the Trust, that could not have been accomplished by direct
investment in the Debentures.
A trust with multiple classes of ownership will generally be
classified as an association or partnership under Treas. Reg. ss. 301.7701-2.
However, Example 2 of Treas. Reg. ss. 301.7701-4(c)(2) makes it clear that
having two classes of ownership will be treated as "incidental to the trust's
purpose of facilitating direct investment in the assets of the trust", and
therefore as not causing a trust to be classified as an association or a
partnership, if the two classes are identical except that, in the event of
default on the underlying debt instruments that constitute the Trust's assets,
the payment rights of holders of one class (held by the sponsor of the trust)
are subordinated to the rights of the holders of the other class. See also
Rev. Rul. 92-32, 1992-1 C.B. 434 (analyzing facts similar to those presented
in Example 2, except that the sponsor also sold the subordinated interest).
The regulations analyze the arrangement described in Example 2 as
substantially equivalent to providing undivided interests in the underlying
debt instruments, coupled with a limited nonrecourse guarantee running from
the sponsor to the other holders. Likewise, in the case of the Trust, the
subordination of the payment rights of DLJ as the holder of Common Securities
to the payment rights of the holders of Preferred Securities is not undertaken
to divide ownership of assets through use of the Trust.
Accordingly, the Trust will be classified as a
trust, and not as an association or partnership, under
Treas. Reg. ss. 301.7701-4(c)(2).
3. Grantor Trust
Section 671 of the Internal Revenue Code of 1986, as amended
(the "Code") provides that when it is specified in subpart E of Part I of
subchapter J that the grantor shall be treated as the owner of any portion of
a trust, such grantor must include the trust's items of income, deduction and
credit in computing his taxable income. Treasury Reg. ss. 1.671-2(c) provides
that any item so
5
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
DLJ Capital Trust I August 15, 1996
included "is treated as if it had been received or paid
directly by the grantor . . ."
Section 677 of the Code treats the grantors of a trust as
its owners where the income of the trust is, or may be, distributed to the
grantors without the approval or consent of an adverse party.
The Internal Revenue Service has issued a number
of published rulings applying the investment trust
regulations, Treas. Reg. ss. 301.7701-4(c) as described above,
in determining the tax classification of mortgage pass-
through trusts. See, e.g., Rev. Rul. 70-544, 1970-2 C.B. 6;
Rev. Rul. 70-545, 1970-2 C.B. 7; Rev. Rul. 71-399, 1971-2
C.B. 433; Rev. Rul. 77-349, 1977-2 C.B. 20; Rev. Rul. 84-10,
1984-1 C.B. 155. Each of these rulings holds that the trust
in question qualifies as a trust, and not as an association
taxable as a corporation. Furthermore, these rulings
consistently treat the certificate holders as the "grantors"
of the trust, holding that, under the grantor trust rules
set out in section 671 through 679 of the Code, each
certificate holder is treated as owning an undivided
interest in each asset of the trust, and must include in
computing gross income that certificate holder's
proportionate share of the trust's income and deduction.
See also G.C.M. 34347 (September 14, 1970); G.C.M. 38311
(March 18, 1980). The Trust is substantially similar to the
mortgage pass-through trusts described in the above-cited
rulings.
On the basis of the foregoing, it is our opinion that the
Trust will be classified as a trust for federal income tax purposes, and not
as a partnership or an association taxable as a corporation. Furthermore,
because (i) the Trust's entire beneficial interest will be held by the holders
of the Securities, and (ii) all of the income of the Trust will be distributed
to the holders of the Securities, we believe that the Trust will be
characterized as a grantor trust for federal income tax purposes. Accordingly,
if the Common Securities are not disregarded, the Trust's income and
deductions will be included directly in computing the taxable income of the
holders of the Common Securities and the Preferred Securities; if the Common
Securities and the portion of the Debentures considered to have been issued to
the Trust in exchange for the Common Securities are disregarded, the Trust's
income and deductions (excluding income attributable to the disregarded
6
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
DLJ Capital Trust I August 15, 1996
portion of the Debentures) will be included directly in computing the taxable
income of the holders of the Preferred Securities.
Very truly yours,
/s/ Davis Polk & Wardwell
7
EXHIBIT 12.1
DONALDSON, LUFKIN & JENRETTE, INC.
STATEMENT RE COMPUTATION OF RATIO OF
EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT FOR RATIO)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
FISCAL YEAR ENDED DECEMBER 31, JUNE 30,
-------------------------------------------------------------------- ----------------
1991 1992 1993 1994 1995 1996
------------ ------------ ------------ ------------ ------------ ----------------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before provision
for income taxes ....... $ 89,000 $ 245,000 $ 302,000 $ 205,000 $ 298,500 $ 265,800
Add: Fixed Charges
Interest expense (gross) 1,244,332 1,130,709 1,465,303 2,116,655 2,699,769 1,343,793
Interest factor in rents 13,619 13,899 15,432 18,565 22,064 13,699
------------ ------------ ------------ ------------ ------------ ----------------
Total fixed charges .... 1,257,951 1,144,608 1,480,735 2,135,220 2,721,833 1,357,492
Earnings before fixed
charges, and provision
for income taxes ........ $1,346,951 $1,389,608 $1,782,735 $2,340,220 $3,020,333 $1,623,292
============ ============ ============ ============ ============ ================
Ratio of earnings to fixed
charges ................. 1.07 1.21 1.20 1.10 1.11 1.20
============ ============ ============ ============ ============ ================
</TABLE>
<PAGE>
EXHIBIT 12.1
DONALDSON, LUFKIN & JENRETTE, INC.
STATEMENT RE COMPUTATION OF RATIO OF
EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
(IN THOUSANDS, EXCEPT FOR RATIO)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
DECEMBER 31, JUNE 30,
-------------------------- ----------------
1994 1995 1996
------------ ------------ ----------------
<S> <C> <C> <C>
Earnings:
Income before provision for income taxes ........ $ 205,000 $ 298,500 $ 265,800
Add: Fixed Charges
Interest (gross) ................................. 2,116,655 2,699,769 1,343,793
Interest factor in rents ......................... 18,565 22,064 13,699
------------ ------------ ----------------
Total fixed charges ............................. 2,135,220 2,721,833 1,357,492
Add: Preferred dividends .......................... 20,970 19,868 9,934
------------ ------------ ----------------
Combined fixed charges and preferred dividends .. 2,156,190 2,741,701 1,367,426
Earnings before fixed charges, preferred dividends
and provision for income taxes ................... $2,340,220 $3,020,333 $1,623,292
============ ============ ================
Ratio of earnings to fixed charges and preferred
dividends ........................................ 1.09 1.10 1.19
============ ============ ================
</TABLE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
Donaldson, Lufkin & Jenrette, Inc.:
We consent to the use of our report incorporated by reference into this
Registration Statement and to the reference to our firm under the heading
"Experts" in the prospectuses.
/s/ KPMG Peat Marwick LLP
New York, New York
August 15, 1996
Exhibit 25.2
CONFORMED COPY
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-1898818
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
Subordinated Debentures
(Title of the indenture securities)
===============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/VIVIAN GEORGES
----------------------
Name: VIVIAN GEORGES
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
Exhibit 25.3
CONFORMED COPY
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-1898818
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
Junior Subordinated Debentures
(Title of the indenture securities)
===============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- -----------------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/VIVIAN GEORGES
-----------------
Name: VIVIAN GEORGES
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
Exhibit 25.4
CONFORMED COPY
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DLJ CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
Delaware 13-7093229
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
__% Preferred Trust Securities
(Title of the indenture securities)
==============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/VIVIAN GEORGES
----------------------
Name: VIVIAN GEORGES
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
Exhibit 25.5
CONFORMED COPY
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DLJ CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
Delaware 13-7093230
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
__% Preferred Trust Securities
(Title of the indenture securities)
==============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/PAUL J. SCHMALZEL
-------------------------
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
Exhibit 25.6
CONFORMED COPY
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DLJ CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
Delaware 13-7093231
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
__% Preferred Trust Securities
(Title of the indenture securities)
==============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/PAUL J. SCHMALZEL
-------------------------
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
EXHIBIT 25.7
CONFORMED COPY
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DLJ CAPITAL TRUST IV
(Exact name of obligor as specified in its charter)
Delaware 13-7093232
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
__% Preferred Trust Securities
(Title of the indenture securities)
=============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. List of Exhibits.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/PAUL J. SCHMALZEL
-------------------------
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
Exhibit 25.8
CONFORMED COPY
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-1898818
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Trust Securities of DLJ Capital Trust I
(Title of the indenture securities)
==============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- -----------------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321 (b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/PAUL J. SCHMALZEL
-------------------------
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
Exhibit 25.9
CONFORMED COPY
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-1898818
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Trust Securities of DLJ Capital Trust II
(Title of the indenture securities)
==============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- -----------------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
--------------------
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
Exhibit 25.10
CONFORMED COPY
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-1898818
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Trust Securities of DLJ Capital Trust III
(Title of the indenture securities)
==============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- -----------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
---------------------
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
Exhibit 25.11
CONFORMED COPY
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-1898818
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Trust Securities of DLJ Capital Trust IV
(Title of the indenture securities)
==============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 13th day of August, 1996.
THE BANK OF NEW YORK
By: /S/NANCY B. GILL
---------------------
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic
Subsidiaries, a member of the Federal Reserve System, at the close of business
March 31, 1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,820,159
LESS: Allowance for loan and
lease losses ..................... 509,817
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing ................ 7,102,645
Interest-bearing ................... 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ................ 37,855
<PAGE>
Interest-bearing ................... 10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. (5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
