<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 27, 1998.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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HSBC AMERICAS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 22-1093160
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</TABLE>
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ONE MARINE MIDLAND CENTER
BUFFALO, NEW YORK 14203
(716) 841-2424
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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<TABLE>
<S> <C>
PHILIP S. TOOHEY, ESQ. JAMES F. MUNSELL, ESQ.
GENERAL COUNSEL AND SECRETARY CLEARY, GOTTLIEB, STEEN & HAMILTON
HSBC AMERICAS, INC. ONE LIBERTY PLAZA
ONE MARINE MIDLAND CENTER NEW YORK, NEW YORK 10006
BUFFALO, NEW YORK 14203 (212) 225-2000
(716) 841-2473
</TABLE>
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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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, please check the following box and list
the Securities Act registration number of the 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. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
<CAPTION>
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(2) OFFERING PRICE(2) FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.......................... (1) (1) (1) (1)
Preferred Stock..........................
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TOTAL.................................... $750,000,000(3) 100% $750,000,000(3) $151,285(4)
===============================================================================================================================
</TABLE>
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3. In no event will the aggregate initial
offering price of the Debt Securities and Preferred Stock issued under this
registration statement exceed $750,000,000. Securities registered hereby may
be sold separately, together or in units with other securities registered
hereunder.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o). The proposed maximum offering price per unit will be
determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
(3) Subject to note (1) above, there is being registered an indeterminate amount
of all of the types of securities being registered hereunder that will be
offered and sold by affiliates of the Corporation, including HSBC
Securities, Inc., in market-making transactions at negotiated prices
relating to prevailing market prices at the time of sale.
(4) $200,000,000 of securities registered under the Registrant's Registration
Statement No. 333-5801 are being carried forward to this Registration
Statement. A filing fee of $172,414 for $500,000,000 of securities was
previously paid with the earlier Registration Statement. Two-fifths of such
amount, $69,965, is being offset against the registration fee payable
hereunder pursuant to Rule 429 of the Securities Act of 1933.
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Pursuant to Rule 429 under the Securities Act of 1933, as amended (the
"Securities Act"), the Prospectus included in this Registration Statement also
relates to the Debt Securities and Preferred Stock previously registered under
the Registrant's Registration Statement on Form S-3 (No. 333-5801). This
Registration Statement also constitutes Post-Effective Amendment No. 1 to HSBC
Americas, Inc.'s Registration Statement on Form S-3 (No. 333-5801).
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT 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> 2
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 JURISDICTION IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE SECURITIES LAWS OF ANY SUCH JURISDICTION.
SUBJECT TO COMPLETION -- DATED MAY 27, 1998
PROSPECTUS
[HSBC LOGO]
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DEBT SECURITIES
PREFERRED STOCK
HSBC Americas, Inc. (the "Corporation") intends to issue from time to time
in one or more series up to $750,000,000 in aggregate initial offering price of
(i) debt securities, which may be either senior (the "Senior Securities") or
subordinated (the "Subordinated Securities"; and collectively with the Senior
Securities, the "Debt Securities") and (ii) shares of preferred stock (the
"Preferred Stock"). The Debt Securities and Preferred Stock offered hereby
(collectively, the "Securities") may be offered, separately or as units with
other Securities, in separate series in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in an accompanying supplement
to this Prospectus (a "Prospectus Supplement").
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The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Corporation. The Subordinated Securities will be
subordinate to all existing and future Senior Indebtedness of the Corporation
(as defined herein). The maturity of the Subordinated Securities will be subject
to acceleration only in the event of certain events of bankruptcy or insolvency
of the Corporation or receivership of the Corporation's principal subsidiary,
Marine Midland Bank (the "Bank").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in a Prospectus Supplement, together with the
terms of the offering of the Securities and the initial price and net proceeds
to the Corporation from the sale thereof. The Prospectus Supplement will include
the following information with respect to the Securities, where applicable: (i)
in the case of Debt Securities, the specific designation, aggregate principal
amount, ranking, denomination, maturity, priority, rate of interest (which may
be variable or fixed), time of payment of interest, terms for optional
redemption or repayment by the Corporation or any holder, the initial public
offering price, any stock exchange listings, any special provisions related to
Debt Securities issued as medium-term notes, original issue discount securities
or other special terms and the designation of the Trustee, Security Registrar
and Paying Agent, (ii) in the case of Preferred Stock, the specific title and
stated value, number of shares or fractional interests therein, terms of any
dividend, liquidation, redemption, voting and other rights, any stock exchange
listings, and the initial public offering price and (iii) in the case of all
Securities, whether such Securities are being offered separately or as a unit
with other Securities. The Prospectus Supplement will also contain information,
where applicable, about certain United States federal income tax considerations
relating to the Securities covered by the 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 SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE CORPORATION AND WILL NOT BE
SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK
SUBSIDIARY OF THE CORPORATION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION (THE "FDIC"), BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
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The Securities may be sold by the Corporation directly to purchasers,
through agents designated from time to time, through underwriting syndicates led
by one or more managing underwriters or through one or more underwriters. The
Corporation expects that any such agents, managing underwriters or underwriters
in the United States may include HSBC Securities, Inc. or other affiliates of
the Corporation. If underwriters or agents are involved in any offering of the
Securities, the names of the underwriters or agents will be set forth in the
applicable Prospectus Supplement. If an underwriter, agent or dealer is involved
in any offering of the Securities, the underwriter's discount, agent's
commission or dealer's purchase price will be set forth in, or may be calculated
from the information set forth in, the applicable Prospectus Supplement, and the
net proceeds to the Corporation from such offering will be the public offering
price of such Securities less such discount in the case of an offering though an
underwriter or such commission in the case of an offering through an agent, and
less, in each case, the other expenses of the Corporation associated with the
issuance and distribution of such Securities.
The Corporation or one or more of its subsidiaries may from time to time
purchase or acquire a position in the Securities and may at its option, hold,
resell, cancel or exercise, if applicable, such Securities. HSBC Securities,
Inc. expects to offer and sell previously issued Securities in the course of its
business as a broker-dealer and may act as principal or agent in such
transactions. In addition, this Prospectus may be used by HSBC Securities, Inc.
or other affiliates of the Corporation in connection with offers and sales
related to market-making activities. HSBC Securities, Inc. or such affiliates
may act as principal or agent in any such transactions which will be made at
negotiated prices related to the prevailing market prices at the time of sale.
This Prospectus may not be used to consummate sales of the Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is May 27, 1998.
<PAGE> 3
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR THE PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR ANY UNDERWRITER OR
AGENT. THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AT ANY TIME
DOES NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE OF SUCH INFORMATION. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION.
UNLESS OTHERWISE INDICATED, CURRENCY AMOUNTS IN THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT ARE STATED IN U.S. DOLLARS ("$," "DOLLARS," "U.S.
DOLLARS," OR "U.S. $").
AVAILABLE INFORMATION
The Corporation is subject to the information reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports and other information filed
by the Corporation can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's regional offices at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and 7
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained upon written request to the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 at
prescribed rates. The Commission maintains a Web site at http://www.sec.gov
containing reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission, including
the Corporation. Certain securities of the Corporation are listed on the New
York Stock Exchange ("NYSE"), and such reports and other information concerning
the Corporation also may be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Corporation has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the Securities. This Prospectus does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement and to the exhibits thereto. Statements contained herein
concerning the provisions of certain documents are not necessarily complete, and
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents and information heretofore filed with the Commission pursuant to
Sections 12 or 13 of the Exchange Act:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1997 (the "1997 10-K").
2. The Corporation's Report on Form 10-Q for the quarter ended March
31, 1998.
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<PAGE> 4
3. The description of the Corporation's Preferred Stock contained in
the Corporation's registration statements filed under Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Corporation pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of the Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents.
Any statement contained herein or 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 the accompanying Prospectus Supplement, 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 statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
THE CORPORATION WILL PROVIDE UPON REQUEST AND WITHOUT CHARGE TO EACH PERSON
TO WHOM THIS PROSPECTUS IS DELIVERED A COPY OF ANY OR ALL OF THE FOREGOING
DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED THEREIN BY REFERENCE). WRITTEN
REQUESTS SHOULD BE DIRECTED TO MANAGER, TREASURY TRANSACTIONS, HSBC AMERICAS,
INC., ONE MARINE MIDLAND CENTER, 21ST FLOOR, BUFFALO, NEW YORK 14203. TELEPHONE
REQUESTS MAY BE DIRECTED TO MANAGER, TREASURY TRANSACTIONS AT (716) 841-4175.
THE CORPORATION
HSBC Americas, Inc. (the "Corporation"), formerly Marine Midland Banks,
Inc., is a New York state-based bank holding company registered under the Bank
Holding Company Act of 1956, as amended (the "BHCA"). At March 31,1998, the
Corporation, together with its subsidiaries, had assets of $32.2 billion,
deposits of $24.1 billion, shareholders' equity of $2.0 billion and employed
approximately 9,500 full and part time employees.
The Corporation is an indirect wholly-owned subsidiary of HSBC Holdings plc
("HSBC"). HSBC, with assets of approximately $472 billion at December 31, 1997
and net income of approximately $5.5 billion for the year ended December 31,
1997, is one of the world's largest banking groups. HSBC, the ultimate parent
company of The Hongkong and Shanghai Banking Corporation Limited and Midland
Bank plc, is an international banking and financial services organization with
major commercial and investment banking franchises operating under long
established names in Asia, Europe, the Americas and the Middle East. The
principal executive offices of HSBC are located in London.
The Corporation's principal subsidiary, the Bank, which had assets of $31.9
billion and deposits of $25.1 billion at March 31, 1998, is supervised and
routinely examined by the State of New York Banking Department and the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"). The Bank
is a regional bank with 382 branches creating a distinctive geographic franchise
which encompasses the entire state of New York. Selected banking products,
including credit cards and asset based lending, are offered on a national basis.
The Bank is engaged in a general commercial banking business, offering a full
range of banking products and services to individuals, corporations,
institutions and governments. Through its affiliation with HSBC, the Bank offers
its customers access to global markets and services. In turn, the Bank plays a
role in the delivery and processing of other HSBC products.
Effective March 1, 1997, the Corporation acquired CTUS Inc. ("CTUS"), a
unitary thrift holding company, for $676 million in cash. CTUS owned First
Federal Savings and Loan Association of Rochester ("First Federal"), a thrift
institution which had $7.0 billion in assets and deposits of $4.4 billion. On
the date of acquisition, the operations of First Federal were merged with those
of the Bank.
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<PAGE> 5
On December 31, 1996, the Corporation acquired the institutional U.S.
dollar clearing activity of Morgan Guaranty Trust Company of New York. The Bank
assumed $0.9 billion in deposit liabilities and acquired a like amount of
federal funds sold. In June 1996, the Bank acquired $1.1 billion in selected
assets and assumed $1.2 billion in deposits of East River Savings Bank.
A more complete description of these acquisitions, including pro forma and
other financial information relating thereto, is set out in the 1997 10-K.
COMPETITION AND INDUSTRY CONSOLIDATION
The Corporation and its subsidiaries face competition in all of the markets
they serve, competing with other major financial institutions, including
commercial banks, investment banks, savings and loan associations, credit
unions, consumer finance companies, money market funds and other non-banking
institutions, such as insurance companies, major retailers, brokerage firms, and
investment companies in New York, throughout the United States and
internationally. One of the principal methods of competing effectively in the
financial services industry is to improve customer service through the quality
and range of services available, easing access to facilities and pricing. One
outgrowth of this competitive environment has been a significant number of
consolidations in the banking industry both on a national and regional level,
partially in response to changes in the regulatory framework governing banks'
interstate activities. See "Supervision and Regulation." The Corporation engages
on an ongoing basis in reviewing and discussing possible acquisitions of
financial institutions, as well as banking and other assets in order to expand
its business. The Corporation intends to continue to explore acquisition
opportunities as they arise in order to take advantage of the continuing
consolidation in the banking industry.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The Corporation's ratios of earnings to fixed charges and earnings to
combined fixed charges and preferred stock dividend requirements are set forth
below for the periods indicated.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEARS ENDED DECEMBER 31,
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3/31/98 3/31/97 1997 1996 1995 1994 1993
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<S> <C> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits............ 3.32 3.83 3.05 4.03 3.35 1.48 0.00
Including Interest on Deposits............ 1.68 1.83 1.66 1.83 1.55 1.17 0.58
Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements:
Excluding Interest on Deposits............ 3.32 3.70 3.03 3.84 3.19 1.43 0.00
Including Interest on Deposits............ 1.68 1.81 1.66 1.80 1.53 1.16 0.57
</TABLE>
Fixed charges exceeded earnings by $212 million in 1993, while earnings
exceeded fixed charges in 1994, 1995, 1996 and 1997 by $85 million, $336
million, $549 million and $662 million, respectively. Fixed charges and
Preferred Stock dividends exceeded earnings by $218 million in 1993, while
earnings exceeded fixed charges and Preferred Stock dividends in 1994, 1995,
1996 and 1997 by $79 million, $329 million, $540 million and $660 million,
respectively.
For purposes of computing both the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividend requirements,
earnings represent net income (loss) before the cumulative effect of changes in
accounting principles plus applicable income taxes and fixed charges. Fixed
charges, excluding interest on deposits, include interest expense (other than on
deposits) and the proportion deemed representative of the interest factor of
rent expense, net of income from subleases. Fixed charges, including interest on
deposits, include all interest expense and the proportion deemed representative
of the interest factor of rent expense, net of income from subleases. Pretax
earnings required for preferred stock dividends were computed using tax rates
for the applicable year. No tax adjustments were made in loss years.
SUPERVISION AND REGULATION
GENERAL
The Corporation and the Bank are subject to extensive federal and state
supervision and regulation in the United States. Banking laws and regulations of
the Federal Reserve Board, the Federal Deposit Insurance Corporation (the
"FDIC") and the State of New York Banking Department govern most aspects of
their business, including deposit reserve requirements, investments, loans,
check clearing activities, issuance of securities, payment of dividends,
branching, nonbanking activities and numerous other matters. As a consequence of
the extensive regulation of commercial banking activities in the United States,
the business of the Corporation and the Bank is particularly susceptible to
changes in federal and state legislation and regulations, which changes may have
the effect of increasing the cost of doing business, limiting permissible
activities or increasing competition.
REGULATION OF THE CORPORATION
FEDERAL RESERVE BOARD REGULATION
The Corporation is a bank holding company within the meaning of the BHCA
and, as such, is subject to comprehensive supervision, regulation and
examination by the Federal Reserve Board. The Corporation is required to file
annual reports and other information with the Federal Reserve Board relating to
its activities and the activities of its direct and indirect subsidiaries.
The Federal Reserve Board has significant supervisory and regulatory
authority over the Corporation and its affiliates. The Federal Reserve Board
requires bank holding companies to maintain certain levels of capital,
5
<PAGE> 7
substantially similar to the risk-based capital and leverage ratio requirements
for commercial banks described in "--Regulation of the Bank -- Capital
Standards" below. The Federal Reserve Board also has the authority to take
enforcement action against any bank holding company that commits any unsafe or
unsound practice, or violates certain laws, regulations or conditions imposed in
writing by the Federal Reserve Board.
ACQUISITIONS
The BHCA, the federal Bank Merger Act and applicable state banking laws
generally regulate acquisitions of and investments involving bank holding
companies and commercial banks. Under the BHCA, a company generally must obtain
the prior approval of the Federal Reserve Board before it exercises a
controlling influence over, or acquires directly or indirectly, more than 5% of
the voting shares or substantially all of the assets of any bank or bank holding
company. The Corporation generally would be required to obtain the prior
approval of the Federal Reserve Board and possibly applicable state banking
regulators before it acquired, merged with or consolidated with any bank or bank
holding company. Similarly, any company that sought to acquire, merge or
consolidate with the Corporation would be required to obtain the approval of the
Federal Reserve Board and the State of New York Banking Department.
As a bank holding company, the Corporation is prohibited (with limited
exceptions) from acquiring ownership or control of more than 5% of the voting
shares of any company that is not a bank holding company and from engaging
directly or indirectly in activities other than banking, managing banks, or
providing services to affiliates of the holding company. However, under the BHCA
and Federal Reserve Board regulations, a bank holding company generally may
engage in, or acquire voting shares of companies engaged in, activities that the
Federal Reserve Board has determined to be so closely related to banking or
managing or controlling banks as to be a proper incident thereto. To be
permissible, the benefits to the public of such a proposed activity must
outweigh the possible adverse effects associated with such activity.
The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994
(the "Riegle-Neal Act") permits a bank holding company, with Federal Reserve
Board approval, to acquire banks located in states other than the bank holding
company's home state without regard to whether the transaction is permitted
under state law, but subject to any state law requirement that the banks to be
acquired have been organized and operating for a minimum period of time, not to
exceed five years, and the requirement that the bank holding company, prior to
or following the acquisition, control no more than 10% of the total amount of
deposits of insured depository institutions in the United States and (if the
acquiring bank holding company has an insured depository institution with any
branch in the same state as the bank to be acquired) no more than 30% of such
deposits in that state (or such lesser or greater amount set by state law). In
addition, the Riegle-Neal Act provides that national banks and state banks with
different home states are permitted to merge across state lines with the
approval of the appropriate federal banking agency, unless the home state of a
participating bank passed legislation between the date of enactment of the
Riegle-Neal Act and May 31, 1997 expressly prohibiting interstate mergers. A
bank also may establish and operate a de novo branch in a state in which the
bank does not maintain a branch if that state expressly permits de novo
branching. Once a bank has established branches in a state through an interstate
merger transaction, the bank may establish and acquire additional branches at
any location in the state where any bank involved in the interstate merger
transaction could have established or acquired branches under applicable federal
or state law. A bank that has established a branch in a state through de novo
branching may establish and acquire additional branches in such state in the
same manner and to the same extent as a bank having a branch in such state as a
result of an interstate merger.
The merger of the Bank with another bank would require the approval of the
Federal Reserve Board or other federal bank regulatory authority and, if the
surviving bank is a New York state-chartered bank, the New York Superintendent
of Banks.
In reviewing bank acquisition and merger applications, the bank regulatory
authorities consider, among other things, the competitive effect of the
transaction, financial and managerial issues including the capital position of
the combined organization, and convenience and needs factors, including the
applicant's record under the Community Reinvestment Act of 1977, as amended (the
"CRA").
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<PAGE> 8
DIVIDENDS AND TRANSACTIONS BETWEEN AFFILIATES
The Federal Reserve Board generally prohibits a bank holding company from
declaring or paying a cash dividend that would impose undue pressure on the
capital of subsidiary banks or would be funded only through borrowing or other
arrangements that might adversely affect the bank holding company's financial
position. The Federal Reserve Board's policy is that a bank holding company
should not pay cash dividends on its common stock unless its net income is
sufficient to fully fund each dividend and its prospective rate of earnings
retention appears consistent with its capital needs, asset quality and overall
financial condition.
Transactions between the Corporation and its subsidiaries are subject to a
number of other restrictions. Federal Reserve Board policies forbid the payment
by bank subsidiaries of management fees which are unreasonable in amount or
exceed the fair market value of the services rendered (or, if no market exists,
actual costs plus a reasonable profit). Additionally, a bank holding company and
its subsidiaries are prohibited from engaging in certain tie-in arrangements in
connection with the extension of credit, sale or lease of property, or
furnishing of services. Subject to certain exceptions, subsidiary banks of bank
holding companies may extend credit to, invest in the securities of, purchase
assets from, or issue a guarantee, acceptance or letter of credit on behalf of,
an affiliate only if the aggregate of such a bank's transactions with any one
affiliate do not exceed 10% of the bank's capital stock and surplus and all such
transactions in the aggregate do not exceed 20% of the bank's capital stock and
surplus. Such transactions must be on terms and conditions that are consistent
with safe and sound banking practices. In general, the Corporation may borrow
from a subsidiary bank only if the loan is secured by marketable obligations
with a value of a designated amount in excess of the loan. Further, the
Corporation may not sell a low-quality asset to a subsidiary bank.
SOURCE OF STRENGTH
The Federal Reserve Board has adopted a policy of requiring each bank
holding company to serve as a source of financial strength to its subsidiary
banks. If the Bank were to experience either significant loan losses or rapid
growth in loans or deposits, or some other event resulting in a depletion or
deterioration of capital accounts were to occur, the Corporation might be
compelled by the Federal Reserve Board to invest additional capital in an amount
sufficient to return the Bank's capital accounts to a satisfactory level. Such
additional investment may be required at times when, absent the policy of the
Federal Reserve Board, the Corporation would not be able or willing to provide
such investment.
FAIR LENDING AND OTHER REGULATIONS
Commercial banking organizations, other insured depository institutions and
mortgage bankers are subject to certain fair lending requirements and reporting
obligations involving home mortgage lending operations. In addition to
substantive penalties and corrective measures that may be required for violation
of such laws, the federal banking agencies may take compliance with such laws
into account when regulating and supervising other activities. The Federal
Reserve Board may not approve applications to acquire the voting shares of
another insured depository institution based on incorrect reporting of home
mortgage lending data, and the possibility that applicants may have engaged in
discriminatory treatment of minorities in mortgage lending in violation of the
Equal Credit Opportunity Act.
REGULATION OF THE BANK
REGULATION AND SUPERVISION
As a New York state-chartered bank, the Bank is regulated, supervised and
regularly examined by the State of New York Banking Department. The Bank is also
a member of the Federal Reserve System and, as such, is subject to regulations,
supervision and regular examinations by the Federal Reserve Board. Under New
York and federal banking law, the Bank is subject to various restrictions on and
requirements regarding its operations and administration, including the
establishment and maintenance of branch offices, capital and reserve
requirements, deposits and borrowings, investment and lending activities,
payment of dividends and numerous other matters. The deposits of the Bank are
insured by the FDIC and subject to relevant FDIC regulations.
7
<PAGE> 9
CAPITAL STANDARDS
The Federal Reserve Board and other federal banking agencies have
established risk-based capital adequacy guidelines for commercial banks and
(with certain differences) bank holding companies. These risk-based capital
guidelines are consistent with the Bank for International Settlements' so-called
"Basle Accord" on international bank capital standards. The guidelines are
intended to provide a measure of capital adequacy that reflects the degree of
risk associated with a banking organization's operations both for on-balance
sheet assets and for transactions that are recorded as off-balance sheet items,
such as letters of credit and recourse arrangements. Under the risk-based
capital guidelines, nominal amounts of assets and credit equivalent amounts of
off-balance sheet items are multiplied by one of several risk adjustment
percentages ranging from 0% for assets with low credit risk, such as certain
U.S. government securities, to 100% for assets with relatively higher credit
risk, such as business loans.
A banking organization's risk-based capital ratios are obtained by dividing
its qualifying capital by its total risk-adjusted assets and off-balance sheet
items. The regulators measure risk-adjusted assets and off-balance sheet items
against both Tier 1 capital and total qualifying capital (the sum of Tier 1
capital and limited amounts of Tier 2 capital). Tier 1 capital generally
consists of common stock, retained earnings, noncumulative perpetual preferred
stock (and, in the case of bank holding companies, limited amounts of cumulative
preferred stock) and minority interests in certain subsidiaries, less most other
intangible assets. Tier 2 capital may consist of cumulative preferred stock,
term preferred stock, certain other instruments with some characteristics of
equity, and limited amounts of term subordinated debt and allowance for loan
losses. The inclusion of various elements of Tier 2 capital are subject to
certain requirements and limitations. The Federal Reserve Board and the other
federal banking agencies require a minimum ratio of qualifying total capital to
risk-adjusted assets and off-balance sheet items (a "Total Capital Ratio") of
8%, and a minimum ratio of Tier 1 capital to risk-adjusted assets and
off-balance sheet items (a "Tier 1 Capital Ratio") of 4%.
In addition to risk-based capital requirements, the Federal Reserve Board
and other federal banking regulators require banking organizations to maintain a
minimum amount of Tier 1 capital to total (unweighted) balance sheet assets,
referred to as the "Leverage Ratio." For a banking organization rated in the
highest of the five categories used by regulators to rate banking organizations,
the Leverage Ratio must be at least 3%; all other banking organizations are
expected to maintain minimum ratios at least 100 to 200 basis points above this
(i.e., minimum Leverage Ratios in the range of 4% to 5%). In addition to these
uniform risk-based capital guidelines and leverage ratio requirements that apply
across the industry, the federal banking regulators have the discretion to set
individual minimum capital requirements for specific institutions at rates
significantly above the minimum guidelines and ratios. The Federal Reserve Board
has not imposed any individual capital requirements on the Corporation or the
Bank.
Under a supplement to the international Basle Accord and capital adequacy
guidelines of U.S. federal banking regulators, beginning December 31, 1997,
banks and bank holding companies with significant trading activities also are
required to measure and hold capital for exposure to general market risk arising
from fluctuations in interest rates, equity prices, foreign exchange rates and
commodity prices and exposure to specific risk associated with debt and equity
positions in the organization's trading portfolio. General market risk and
specific risk exposures are to be measured by internal risk models or a
standardized model agreed upon by the Bank for International Settlements.
The Corporation and the Bank are in compliance with current federal capital
adequacy requirements. The following tables present the capital ratios for the
Corporation and the Bank as of March 31, 1998, under Federal Reserve Board
guidelines.
<TABLE>
<CAPTION>
CAPITAL RATIO HSBC AMERICAS, INC. MARINE MIDLAND BANK
------------- ------------------- -------------------
<S> <C> <C>
Total Capital.................................. 13.12% 11.55%
Tier 1......................................... 9.18% 8.33%
Leverage....................................... 6.71% 6.06%
</TABLE>
8
<PAGE> 10
PROMPT CORRECTIVE ACTION AND OTHER ENFORCEMENT MECHANISMS
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), substantially revised the depository institution regulatory and
funding provisions of the Federal Deposit Insurance Act ("FDIA") and made
revisions to several other federal banking statutes.
Among other things, FDICIA requires the federal banking regulators to take
prompt corrective action in respect of FDIC-insured depository institutions that
do not meet minimum capital requirements. FDICIA establishes five tiers of
institutions: "well capitalized," "adequately capitalized," "undercapitalized,"
"significantly undercapitalized" and "critically undercapitalized." Under
applicable regulations, a bank is defined to be well capitalized if it maintains
a Total Capital Ratio of at least 10%, a Tier 1 Capital Ratio of at least 6% and
a Leverage Ratio of at least 5% and is not otherwise in a "troubled condition"
as specified by its appropriate federal regulatory agency. A bank is generally
considered to be adequately capitalized if it is not well capitalized but meets
all of its minimum capital requirements, i.e., if it has a Total Capital Ratio
of 8% or greater, a Tier 1 Capital Ratio of 4% or greater and a Leverage Ratio
of 4% or greater. A bank will be considered undercapitalized if it fails to meet
any minimum required measure, significantly undercapitalized if it is
significantly below any such measure, and critically undercapitalized if it
maintains a level of tangible equity capital equal to or less than 2% of total
assets. A bank may be deemed to be in a capitalization category that is lower
than is indicated by its actual capital position if the appropriate federal
banking agency determines that an unsound condition or an unsafe or unsound
banking practice warrants such treatment (although an institution may not be
treated as "critically undercapitalized" unless its capital ratio actually
warrants such treatment). At each successive lower capital category, a bank is
subject to more restrictions.
FDICIA generally prohibits an FDIC-insured depository institution from
making any capital distribution (including payment of dividends) or paying any
management fee to its holding company if the depository institution would
thereafter be undercapitalized. Undercapitalized depository institutions also
are subject to restrictions on borrowing from the Federal Reserve System.
Depository institutions that are not well capitalized are subject to
restrictions on receipt of brokered deposits. In addition, bank regulators can
be expected to restrain acquisitions and new activities by bank holding
companies and banks that are not well capitalized. Undercapitalized depository
institutions are subject to growth limitations and are required to submit
capital restoration plans. For an undercapitalized depository institution's
capital restoration plan to be acceptable, its holding company must guarantee
the capital plan up to an amount equal to the lesser of 5% of the depository
institution's assets at the time it becomes undercapitalized or the amount of
the capital deficiency when the institution fails to comply with the plan. In
the event of the parent holding company's bankruptcy, such guarantee would take
priority over the parent's general unsecured creditors. The federal banking
agencies may not accept a capital plan without determining, among other things,
that the plan is based on realistic assumptions and is likely to succeed in
restoring the depository institution's capital. If a depository institution
fails to submit an acceptable plan, it is treated as if it is significantly
undercapitalized.
Significantly undercapitalized depository institutions may be subject to a
number of requirements and restrictions, including orders to sell sufficient
voting stock to become adequately capitalized, requirements to reduce total
assets and cessation of receipt of deposits from correspondent banks. Critically
undercapitalized depository institutions are subject to appointment of a
receiver or conservator.
As of March 31, 1998, the Bank was categorized as "well capitalized" under
Federal Reserve Board regulations.
In addition to measures taken under the prompt corrective action
provisions, commercial banking organizations may be subject to potential
enforcement actions by the federal banking regulators for unsafe or unsound
practices in conducting their businesses or for violations of any law, rule,
regulation or any condition imposed in writing by a federal banking agency or
any written agreement with the agency. Enforcement actions may include the
imposition of a conservator or receiver, the issuance of a cease-and-desist
order that can be judicially enforced, the termination of insurance of deposits
(in the case of a depository institution), the imposition of civil money
penalties, the issuance of directives to increase capital, the issuance of
formal and informal agreements, the issuance of removal and prohibition orders
against institution-affiliated parties and the enforcement of such actions
through injunctions or restraining orders based upon a judicial determination
9
<PAGE> 11
that the agency would be harmed if such equitable relief was not granted.
Additionally, a bank holding company's inability to serve as a source of
strength to its subsidiary banks could serve as an additional basis for a
regulatory action against the bank holding company.
RESTRICTIONS ON DIVIDENDS
The Corporation's funds for cash distributions to shareholders and payments
to debt holders are derived from a variety of sources, including cash and
temporary investments. The primary source of such funds, however, is dividends
received from its banking subsidiaries. The Corporation's primary banking
subsidiary, the Bank, is subject to dividend limitations under the Federal
Reserve Act and New York state banking laws. Under these statutes, prior
regulatory approval is required for dividends in any year that would exceed the
Bank's net profits for such year combined with retained net profits for the
prior two years. The Bank is also prohibited from paying a dividend in an amount
greater than "undivided profits then on hand" less "bad debts" (generally loans
six months or more past due). As noted above, FDICIA also generally prohibits an
FDIC-insured depository institution from making any capital distribution
(including payment of dividends) if the depository institution would thereafter
be undercapitalized.
In addition to these statutory tests, the Bank's primary federal regulator,
the Federal Reserve Board, could prohibit a dividend if it determines that the
payment would constitute an unsafe or unsound banking practice. The Federal
Reserve Board has indicated that, generally, dividends should be paid by a bank
only to the extent of earnings from continuing operations.
DEPOSIT INSURANCE ASSESSMENTS
The Bank is subject to FDIC deposit insurance assessments. As required by
FDICIA, the FDIC adopted a risk-based premium schedule to determine the
assessment rates for most FDIC-insured depository institutions. Effective
January 1, 1997, under the schedule, the premiums range from zero to $0.27 for
every $100 of deposits. Each financial institution is assigned to one of nine
categories based on the institution's capital ratios and supervisory
evaluations, and the premium paid by the institution is based on the category.
Under the present schedule institutions in the highest of the three capital
categories and the highest of three supervisory categories pay no premium and
institutions in the lowest of these categories pay $0.27 per $100 of deposits.
Currently, the Bank pays no FDIC insurance premium under this schedule.
In addition, beginning January 1, 1997, insured depository institutions are
subject to an additional FDIC assessment to pay for the cost of funding for the
Financing Corporation (a governmental entity established to fund past financial
assistance provided to insured savings associations). The assessment is based on
deposit levels and, for insured commercial banks such as the Bank, is currently
approximately 1.26 basis points.
The FDIC is authorized to raise insurance premiums in certain
circumstances. Any increase in premiums would have an adverse effect on the
Bank's and the Corporation's earnings.
Under the FDIA, insurance of deposits may be terminated by the FDIC upon a
finding that the institution has engaged in unsafe and unsound practices, is in
an unsafe or unsound condition to continue operations or has violated any
applicable law, regulation, rule, order, or condition imposed by a bank's
federal regulatory agency.
CROSS GUARANTEES
Under the FDIA, a financial institution insured by the FDIC that is under
common control with a failed or failing FDIC-insured institution can be required
to indemnify the FDIC for losses resulting from the insolvency of the failed
institution, even if this causes the affiliated institution also to become
insolvent. Any obligation or liability owed by an insured subsidiary depository
institution to its parent company is subordinate to the subsidiary's
cross-guarantee liability with respect to commonly controlled insured depository
institutions and to the rights of depositors.
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<PAGE> 12
COMMUNITY REINVESTMENT ACT AND FAIR LENDING REQUIREMENTS
The Bank is subject to certain fair lending requirements and reporting
obligations involving home mortgage lending operations and CRA activities. The
CRA generally requires the federal banking agencies to evaluate the record of a
financial institution in meeting the credit needs of their local communities,
including low and moderate income neighborhoods. In addition to substantive
penalties and corrective measures that may be required for a violation of
certain fair lending laws, the federal banking agencies may take compliance with
such laws and CRA into account when regulating and supervising other activities.
REGULATION OF HSBC
The Corporation's parent company, HSBC, is an international banking and
financial services organization with major commercial and investment banking
franchises operating in Asia, Europe, the Americas and the Middle East. HSBC and
various of its subsidiaries are subject to extensive regulation, examination and
supervision by banking regulators, securities regulators and other authorities
in various countries.
In the United States, several of HSBC's overseas subsidiary banks operate
branches or representative offices, including in the states of New York,
Illinois, Texas, Oregon and Washington. These branch offices (and, in some
cases, representative offices) are licensed and examined by state banking
authorities in which they are located and are subject to extensive regulation
under state banking laws. In addition, the U.S. branches and representative
offices are subject to supervision and examination by the Federal Reserve Board
under the federal International Banking Act of 1978, as amended. Federal and
state regulations on U.S. branches cover a broad range of issues, including
loans, investments, deposits, reserve requirements, lending limits, asset pledge
and maintenance requirements, reporting requirements and numerous other matters.
11
<PAGE> 13
USE OF PROCEEDS
The Corporation intends to use the net proceeds from the sale of the
Securities for general corporate purposes, which may include one or more of the
following: investments in and advances to the Corporation's subsidiaries,
including the Bank; financing future acquisitions of financial institutions, as
well as banking and other assets; and the redemption of certain of the
Corporation's outstanding securities. The precise amounts and timing of the
application of proceeds used for such corporate purposes will depend upon
funding requirements and the availability of other funds to the Corporation and
its subsidiaries.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following sets forth certain general terms and provisions of the Debt
Securities to which any Prospectus Supplement may relate. The particular terms
of any Debt Securities and the extent, if any, to which such general provisions
may apply to such Debt Securities will be described in the Prospectus Supplement
relating to such Debt Securities.
The Senior Securities offered hereby are to be issued under an Indenture,
dated as of October 24, 1996 between the Corporation and Bankers Trust Company,
("Bankers Trust" or the "Trustee"), as Trustee (the "Senior Indenture") and the
Subordinated Securities offered hereby are to be issued under an Indenture,
dated as of October 24, 1996, as amended on December 12, 1996, between the
Corporation and Bankers Trust, as Trustee (the "Subordinated Indenture" and
collectively with the Senior Indenture, the "Indentures"). Copies of the
Indentures are filed as exhibits to the Registration Statement. The following
summaries of certain provisions of the Indentures do not purport to be complete
and such summaries are qualified in their entirety by reference to all of the
provisions of the Indentures, including the definitions therein of certain
terms. Whenever particular sections, articles or defined terms of the Indentures
are referred to, such provisions or definitions are incorporated herein by
reference.
Because the Corporation is a holding company, its rights and the rights of
its creditors, including the Holders of the Debt Securities, to participate in
the assets of any subsidiary, including the Bank, upon the subsidiary's
liquidation or reorganization or otherwise would be subject to the prior claims
of the subsidiary's creditors, except to the extent that the Corporation may
itself be a creditor with recognized claims against the subsidiary.
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder. Debt Securities may be issued
thereunder in series up to the aggregate principal amount which may be
authorized from time to time by the Corporation (Section 301). The Debt
Securities will be unsecured obligations of the Corporation (Section 113). The
Senior Securities will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Corporation. The Subordinated Securities will
be subordinate in right of payment as described below under "Subordination."
The Debt Securities may be issued in one or more separate series of Senior
Securities and/or one or more separate series of Subordinated Securities.
Reference is made to the Prospectus Supplement relating to the particular series
of Debt Securities offered thereby for the terms of such Debt Securities,
including, where applicable (Section 301):
(1) the title of such Debt Securities (which shall distinguish such
Debt Securities from all other series of Debt Securities), which may
include medium-term notes;
(2) the limit, if any, on the aggregate principal amount or aggregate
initial offering price of the Debt Securities;
(3) the dates on which or periods during which such Debt Securities
will be issued, and the dates on, or the range of dates within, which the
principal of (and premium, if any, on) such Debt Securities will be
payable;
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<PAGE> 14
(4) the rate or rates at which the Debt Securities will bear interest,
if any, which rate may be zero in the case of certain Debt Securities
issued at an issue price representing a discount from the principal amount
payable at maturity, or the method by which such rate or rates will be
determined, and the date or dates from which such interest, if any, will
accrue;
(5) the date or dates on which such interest, if any, on the Debt
Securities will be payable and the regular record date, if any, for such
Interest Payment Dates or the method by which such date or dates will be
determined;
(6) the place or places where (i) the principal of and premium, if
any, and any interest on the Debt Securities will be payable, (ii) Debt
Securities may be surrendered for registration of transfer, (iii) Debt
Securities may be surrendered for exchange, and (iv) notices to or upon the
Corporation in respect of the Debt Securities of the series and any
Indenture may be served;
(7) the period or periods within which, the price or prices at which,
the Debt Securities may, pursuant to any redemption provision, be redeemed,
in whole or in part, and the other detailed terms and provisions of any
such redemption provisions;
(8) if other than denominations of $1,000 and any integral multiples
thereof, the denominations in which any Debt Securities will be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount, the portion of the principal
amount (or the method by which such portion will be determined) of Debt
Securities that will be payable upon declaration of acceleration of the
Maturity thereof;
(11) any index, formula or other method (including a method based on
changes in the prices of particular securities, currencies, intangibles,
goods, articles or commodities) used to determine the amount of payments of
principal of and premium, if any, and interest, if any, on the Debt
Securities;
(12) whether such Debt Securities are Senior Securities or
Subordinated Securities, or include both;
(13) whether provisions relating to defeasance and covenant defeasance
will be applicable to such series of Debt Securities;
(14) any provisions granting special rights to Holders of Debt
Securities upon the occurrence of specified events;
(15) any modifications, deletions or additions to the Events of
Default or covenants of the Corporation with respect to the Debt
Securities;
(16) whether any Debt Securities are issuable initially in temporary
or permanent global form and, if so (i) whether (and the circumstances
under which) beneficial owners of interests in permanent global Debt
Securities may exchange their interests for Debt Securities of like tenor
of any authorized form and denomination, and (ii) the identity of any
initial depositary for such global Debt Securities;
(17) the date as of which any temporary global Debt Security will be
dated if other than the original issuance date of the first Debt Security
of that series to be issued;
(18) the Person to whom any interest on any registered Debt Securities
will be payable, if other than the Registered Holder, and the extent to
which and manner that any interest payable on a temporary global Debt
Security will be paid if other than as specified in the Indentures;
(19) the form and/or terms of certificates, documents or conditions,
if any, for Debt Securities to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Debt Security of such
Series); and
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<PAGE> 15
(20) any other terms, conditions, rights and preferences (or
limitations on such rights or preferences) relating to the Debt Securities
(which terms shall not be inconsistent with the provisions of the
applicable Indenture and the Trust Indenture Act).
If the amount of payments of principal of and premium, if any, or any
interest on Debt Securities is determined with reference to any type of index or
formula or changes in prices of particular securities, currencies, intangibles,
goods, articles or commodities, the Federal income tax consequences, specific
terms and other information with respect to such Debt Securities and such index
or formula, securities, currencies, intangibles, goods, articles or commodities
will be described in the Prospectus Supplement relating thereto.
Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate that at the time of
issuance is below market rates ("Discount Securities"). Federal income tax
consequences and other special considerations applicable to any such Debt
Securities will be described in the Prospectus Supplement relating thereto.
REGISTRATION AND TRANSFER
Unless otherwise provided in the Prospectus Supplement, each series of Debt
Securities will be issued only in registered form ("Registered Securities")
(Section 302). Unless provided for in the Prospectus Supplement, Marine Midland
Bank will serve as the initial Securities Registrar. Unless otherwise provided
in the Prospectus Supplement, Registered Securities may be presented for
transfer (duly endorsed or accompanied by a written instrument of transfer, if
so required by the Corporation or the Security Registrar) or exchanged for other
Debt Securities of the same series at the Corporate Trust Office of the Trustee
in New York City. Such transfer or exchange shall be made without service
charge, but the Corporation may require payment of any tax or other governmental
charge as described in the applicable Indenture (Sections 301, 305, 1202).
Unless otherwise indicated in the Prospectus Supplement, Registered
Securities, other than Registered Securities issued in global form which may be
of any denomination, will be issued without coupons and in denominations of
$1,000 or integral multiples thereof (Section 302).
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depositary or common depositary (the "Common
Depositary") identified in the applicable Prospectus Supplement. Global
Securities may only be issued in registered form and in either temporary or
permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security may not be
transferred except as a whole by the Common Depositary for such Global Security
to its nominee or another nominee or by a nominee to the Common Depositary or
another nominee or by the Common Depositary or any nominee to a successor Common
Depositary or any nominee of such successor (Sections 303, 305).
Principal and interest payments on the Global Securities registered in the
name of the Common Depositary or its nominee will be made to the Common
Depositary or its nominee, as the case may be, as the registered owner of such
Global Securities. Under the terms of the Indentures, the Corporation and the
Paying Agents will treat the persons in whose names the Global Securities are
registered as the owners of such Global Securities for the purpose of receiving
payment of principal and interest on such Global Securities and for all other
purposes whatsoever. Therefore, neither the Corporation nor the Paying Agents
has any direct responsibility or liability for the payment of principal of or
interest on the Global Securities to owners of beneficial interests in the
Global Securities.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the Prospectus Supplement, payment of
principal of and premium, if any, and interest, if any, on the Securities will
be made at the corporate trust office of the Trustee in New York
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<PAGE> 16
City or at the corporate offices of Marine Midland Bank in New York City, except
that, at the option of the Corporation, interest may be paid by mailing a check
to the address of the person entitled thereto as such address appears in the
Security Register. (Sections 301, 307, 1202).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under each Indenture, the Corporation, without the consent of the Holders
of any of the Debt Securities outstanding under the applicable Indenture, may
consolidate with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to any Person
provided that: (i) the successor is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the successor corporation expressly assumes, by an indenture supplemental
to the applicable Indenture, the Corporation's obligation for the due and
punctual payment of the principal of and premium, if any, and interest, if any,
on all of the Debt Securities under the applicable Indenture and the performance
of every covenant of the applicable Indenture; (iii) after giving effect to the
transaction, no Event of Default under the Senior Indenture and no Default under
the Subordinated Indenture, and no event which, after notice or lapse of time,
or both, would become an Event of Default or a Default, as the case may be,
shall have happened and be continuing; and (iv) certain other conditions are met
(Section 1001).
MODIFICATION AND WAIVER
Each Indenture provides that modification or amendments of the Indentures
may be made by the Corporation and the Trustee, with the consent of the Holders
of 66 2/3 percent in principal amount of the outstanding Debt Securities of each
series affected by such modification or amendment; provided, however, that no
such modification or amendment may, without the consent of the Holder of each
outstanding Debt Security affected thereby: (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest on, any Debt
Security; (b) reduce the principal amount of, or rate or amount of interest, if
any, on, or any premium payable upon the redemption of any Debt Security; (c)
reduce the amount of principal of any Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof or the amount
provable in bankruptcy; (e) adversely affect any right of repayment at the
option of any Holder of any Debt Security; (f) change the place or currency of
payment of principal of, or any premium or interest on, any Debt Security; (g)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Debt Security on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date); (h) reduce the percentage of principal
amount of outstanding Debt Securities of any series, the consent of whose
Holders is required for modification or amendment of the Indentures, or for
waiver of compliance with certain provisions of the Indentures or for waiver of
certain defaults and their consequences, or reduce the requirements for quorum
or voting by the Holders; or (i) modify certain provisions of the Indentures
except to increase the percentage of Holders required to consent thereon to
amendment or modification thereof or to provide that certain other Indenture
provisions cannot be modified or waived without the consent of the Holder of
each outstanding Debt Security affected thereby (Section 1102).
The Holders of 66 2/3 percent in principal amount of the outstanding Debt
Securities of each series may, on behalf of all Holders of Debt Securities of
that series, waive, insofar as that series is concerned, compliance by the
Corporation with certain terms, conditions, or provisions of the Indentures
(Section 1205). The Holders of not less than a majority in principal amount of
the outstanding Debt Securities of any series may, on behalf of all Holders of
Debt Securities of that series, waive any past default under the applicable
Indentures with respect to Debt Securities of that series and its consequences,
except a default in the payment of principal or premium, if any, or interest, if
any, or in respect of a covenant or provision which under Article XI of each
Indenture cannot be modified or amended without the consent of the Holder of
each outstanding Debt Security of such series affected (Section 513).
Each Indenture provides that, in determining whether the Holders of the
requisite principal amount of the outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or are present at a meeting of Holders for quorum purposes, and for making
calculations required under Section 313 of the Trust Indenture Act: (a) the
principal amount of a Discount Security that
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<PAGE> 17
may be counted in making such determination or calculation and that shall be
deemed to be outstanding shall be the amount of principal thereof that would be
due and payable as of the time of such determination upon acceleration of the
Maturity thereof; and (b) the principal amount of any indexed Debt Security that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such indexed Debt Security at original issuance, unless otherwise provided
with respect to such Debt Security (Section 101).
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that the Corporation may elect (a) to defease and be
discharged from its obligations with respect to any Debt Securities of or within
a series (except the obligations to register the transfer of or exchange such
Debt Securities; to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities; to maintain an office or agency in respect of such Debt
Securities; and to hold moneys for payment in trust) ("defeasance") or (b) with
respect to the Senior Indenture, to be released from its obligations with
respect to such Debt Securities under Section 1001 of the Senior Indenture or,
if provided pursuant to Section 301 of the Senior Indenture, its obligations
with respect to any other covenant, and any omission to comply with such
obligations shall not constitute a default or an Event of Default under the
Senior Indenture with respect to such Debt Securities ("covenant defeasance"),
in either case by (a) depositing irrevocably with the Trustee as trust funds in
trust (i) money in an amount, or (ii) U.S. Government Obligations (as defined
below) in an amount which through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later than one
business day before the due date of any payment, money in an amount, or (iii) a
combination of dollars in cash and U.S. Government Obligations sufficient to pay
the principal of and premium, if any, and interest, if any, on the Debt
Securities of such series on the dates such installments of interest or
principal and premium and any similar payments applicable to such Debt
Securities are due and (b) satisfying certain other conditions precedent
specified in the Indentures. Such deposit and termination is conditioned among
other things upon the Corporation's delivery of an Opinion of Counsel that the
Holders of the Debt Securities of such series will have no U.S. federal income
tax consequences as a result of such deposit and termination and an Officer's
Certificate that all conditions precedent to the defeasance have been met
(Article XIV).
Defeasance of the Corporation's obligations with respect to Subordinated
Securities is subject to the prior written approval of the Federal Reserve Board
and the Bank of England (Subordinated Indenture, Section 1402).
If the Corporation exercises its covenant defeasance option with respect to
any series of Senior Securities and such Senior Securities are declared due and
payable because of the occurrence of any Event of Default other than with
respect to a covenant as to which there has been covenant defeasance as
described above, the money and U.S. Government Obligations on deposit with the
Trustee will be sufficient to pay amounts due on such Senior Securities at their
Stated Maturity but may not be sufficient to pay amounts due on such Senior
Securities at the time of acceleration relating to such Event of Default.
However, the Corporation would remain liable to make payment of such amounts due
at the time of acceleration.
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within any particular series.
Unless otherwise specified in the Prospectus Supplement, "U.S. Government
Obligations" means securities that are (i) direct obligations of the United
States government or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States government, the
timely payment of which is unconditionally guaranteed by such government, which,
in either case, are full faith and credit obligations of such government payable
in dollars and are not callable or redeemable at the option of the issuer
thereof, and also includes a depositary 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 such custodian for the account of the holder of a depositary
receipt; provided that (except as required by law) such custodian is not
authorized to make any
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deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest or principal of the U.S.
Government Obligation evidenced by such depositary receipt (Section 1402).
REGARDING THE TRUSTEE
Bankers Trust, the Trustee under the Indentures, has its principal
corporate trust office at 4 Albany Street, 4th Floor, New York, New York 10006.
The Corporation and its banking subsidiaries maintain banking relationships with
the Trustee.
SENIOR SECURITIES
The Senior Securities will be direct unsecured obligations of the
Corporation and will constitute Senior Indebtedness (as defined below under
"-- Subordinated Securities -- Subordination") ranking on a parity with the
other Senior Indebtedness of the Corporation.
EVENTS OF DEFAULT
The following will be Events of Default under the Senior Indenture with
respect to Senior Securities of any series: (a) failure to pay principal or
premium, if any, on any Senior Security of that series at Maturity; (b) failure
to pay any interest on any Senior Security of that series when due and payable,
continued for 30 days; (c) failure to perform any covenant or warranty of the
Corporation in the Senior Indenture (other than a covenant or warranty included
in the Senior Indenture solely for the benefit of series of Senior Securities
other than that series), continued for 60 days after written notice as provided
in the Senior Indenture; (d) default under any bond, debenture, note, mortgage,
indenture, other instrument or other evidence of Indebtedness for Money Borrowed
in an aggregate principal amount exceeding $5 million by the Corporation or the
Bank or its successors (including a default with respect to Senior Securities of
another series) under the terms of the instrument or instruments by or under
which such indebtedness is evidenced, issued or secured, which default results
in the acceleration of such indebtedness, if such acceleration is not rescinded
or annulled, or such indebtedness is not discharged, within ten days after
written notice as provided in the Senior Indenture; (e) certain events in
bankruptcy, insolvency or reorganization of the Corporation or receivership of
the Bank and (f) any other Event of Default provided with respect to Senior
Securities of that series (Senior Indenture, Section 501).
If an Event of Default with respect to Senior Securities of any series at
the time outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25 percent in aggregate principal amount of the outstanding Senior
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities or Indexed Securities, such
portion of the principal amount of such Senior Securities as may be specified in
the terms thereof) of and all accrued but unpaid interest on all the Senior
Securities of that series to be due and payable immediately, by a written notice
to the Corporation (and to the Trustee, if given by Holders), and upon any such
declaration such principal amount (or specified amount) and interest shall
become immediately due and payable. At any time after a declaration of
acceleration with respect to Senior Securities of any series has been made, but
before a judgment or decree for payment of the money due has been obtained, the
Holders of a majority in principal amount of outstanding Senior Securities of
that series may, under certain circumstances, rescind and annul such declaration
and its consequences, if all Events of Default have been cured, or if permitted,
waived, and all payments due (other than those due as a result of acceleration)
have been made or provided for (Senior Indenture, Section 502).
The Senior Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Senior
Indenture at the request or direction of any of the Holders of Senior Securities
of any series, unless such Holders shall have offered to the Trustee reasonable
indemnity or security against the costs, expenses and liabilities which may be
incurred (Senior Indenture, Sections 601, 603). Subject to certain provisions,
the Holders of a majority in principal amount of the Outstanding Senior
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
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exercising any trust or power conferred on the Trustee, with respect to the
Senior Securities of that series (Senior Indenture, Section 512).
The Corporation is required to deliver to the Trustee annually an Officers'
Certificate as to its performance and observance of any of the terms, provisions
and conditions with respect to certain provisions in the Senior Indenture and as
to the absence of any default (Senior Indenture, Section 1206).
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Corporation. The obligations of the Corporation pursuant to the Subordinated
Securities will be subordinate in right of payment to all Senior Indebtedness as
defined below under "-- Subordination."
The maturity of the Subordinated Securities will be subject to acceleration
only in the event of certain events of bankruptcy or insolvency of the
Corporation or the receivership of the Bank. See "-- Events of Default;
Defaults" below.
SUBORDINATION
The obligation of the Corporation to make any payment on account of the
principal of or premium, if any, and interest, if any, on the Subordinated
Securities will be subordinate and junior in right of payment to the
Corporation's obligations to the holders of Senior Indebtedness of the
Corporation to the extent described in the next paragraph. (Subordinated
Indenture, Section 1501). "Senior Indebtedness" of the Corporation is defined in
the Subordinated Indenture to mean "Indebtedness for Money Borrowed" of the
Corporation, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, except "Indebtedness
Ranking on a Parity with the Debt Securities" or "Indebtedness Ranking Junior to
the Debt Securities" and any deferrals, renewals or extensions of such Senior
Indebtedness (Subordinated Indenture, Section 101). "Indebtedness for Money
Borrowed" of the Corporation is defined in the Subordinated Indenture as (a) any
obligation of, or any obligation guaranteed by, the Corporation for the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, (b) similar obligations arising from
off-balance sheet guarantees and direct credit substitutes, (c) obligations
associated with derivative products, such as interest-rate and
foreign-exchange-rate contracts, commodity contracts and similar arrangements,
and (d) any deferred obligations for the payment of the purchase price of
property or assets (Subordinated Indenture, Section 101). "Indebtedness Ranking
on a Parity with the Debt Securities" is defined in the Subordinated Indenture
to mean Indebtedness for Money Borrowed of the Corporation, whether outstanding
on the date of execution of the Subordinated Indenture or thereafter created,
assumed or incurred, which specifically by its terms ranks equally with and not
prior to the Subordinated Securities in the right of payment upon the happening
of any event of the kind specified in the next paragraph. Indebtedness Ranking
on a Parity with the Debt Securities includes the Corporation's:
(i) Floating Rate Subordinated Capital Notes due March 1999 issued
under an indenture dated as of April 1, 1987 between the Corporation and
The Chase Manhattan Bank (formerly known as Chemical Bank), as trustee;
(ii) Floating Rate Subordinated Notes due December 2000 issued under
an indenture dated December 12, 1985 between the Corporation and The Chase
Manhattan Bank (formerly known as The Chase Manhattan Bank, National
Association), as trustee;
(iii) Floating Rate Subordinated Notes due December 2009 issued under
an indenture dated December 15, 1984 between the Corporation and The Chase
Manhattan Bank (formerly known as The Chase Manhattan Bank, National
Association), as trustee; and
(iv) 7.00% Subordinated Notes due November 1, 2006 issued under an
indenture dated October 24, 1996, as amended on December 12, 1996, between
the Corporation and Bankers Trust, as trustee.
"Indebtedness Ranking Junior to the Debt Securities" is defined in the
Subordinated Indenture to mean any Indebtedness for Money Borrowed of the
Corporation, whether outstanding on the date of execution of the
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Subordinated Indenture or thereafter created, assumed or incurred, which
specifically by its terms ranks junior to and not equally with or prior to the
Subordinated Securities (and any other Indebtedness Ranking on a Parity with the
Subordinated Securities) in right of payment upon the happening of any event of
the kind specified in the first sentence of the next paragraph. Indebtedness
Ranking Junior to the Debt Securities includes in the Corporation's:
(i) 7.808% Junior Subordinated Deferrable Debentures due December 15,
2026 issued under an indenture dated December 15, 1996 between the
Corporation and Bankers Trust, as trustee, in connection with the issuance
of the 7.808% Capital Securities issued by HSBC Americas Capital Trust I
and guaranteed by the Corporation; and
(ii) 8.38% Junior Subordinated Deferrable Debentures due May 15, 2027
issued under an indenture dated May 15, 1997 between the Corporation and
Bankers Trust, as trustee, in connection with the issuance of the 8.38%
Capital Securities issued by HSBC Americas Capital Trust II and guaranteed
by the Corporation.
In the case of any bankruptcy, insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshaling of assets and liabilities or
similar proceedings or any liquidation or winding up of or relating to the
Corporation as a whole, whether voluntary or involuntary, all obligations of the
Corporation to Holders of Senior Indebtedness of the Corporation shall be
entitled to be paid in full before any payment shall be made on account of the
principal of, or premium, if any, or interest, if any, on the Subordinated
Securities of any series. In the event and during the continuation of any
default in the payment of principal of, or premium, if any, or interest, if any,
on, any Senior Indebtedness beyond any applicable grace period, or in the event
that any event of default with respect to any Senior Indebtedness shall have
occurred and be continuing, or would occur as a result of certain payments,
permitting the holders of such Senior Indebtedness (or a trustee on behalf of
the holders thereof) to accelerate the maturity thereof, then, unless and until
such default or event of default shall have been cured or waived or shall have
ceased to exist, no payment of principal of, or premium, if any, or interest, if
any, on the Subordinated Securities, or in respect of any redemption, exchange,
retirement, purchase or other acquisition of any of the Subordinated Securities,
shall be made by the Corporation (Subordinated Indenture, Sections 1501, 1503).
Any Prospectus Supplement relating to an issuance of Subordinated
Securities will set forth (as of the most recent practicable date) the aggregate
amount of outstanding Senior Indebtedness and any limitation on the issuance of
additional Senior Indebtedness.
Holders of Subordinated Securities, by their acceptance of such
Subordinated Securities, shall be deemed to have irrevocably waived any rights
such Holders may have to counterclaim or set off amounts owed by such Holders to
the Corporation against amounts owed to such Holders by the Corporation under
the Subordinated Indenture or to institute proceedings in respect of such
amounts (Subordinated Indenture, Section 1501).
By reason of such subordination in favor of the holders of Senior
Indebtedness of the Corporation, in the event of the insolvency of the
Corporation, holders of Senior Indebtedness of the Corporation may receive more,
ratably, and Holders of the Subordinated Securities having a claim pursuant to
the Subordinated Securities may receive less, ratably, than the other creditors
of the Corporation.
REDEMPTION
No redemption, defeasance or early repayment of amounts owed under the
Subordinated Securities, including purchases of capital notes by the Corporation
or its subsidiaries or at the option of Holders of Subordinated Securities, may
be made without the prior written consent of the Federal Reserve Board and the
Bank of England (Subordinated Indenture, Section 1302). Such consent by the Bank
of England and the Federal Reserve Board will depend on the Bank of England and
the Federal Reserve Board being satisfied that the Corporation's capital is
adequate and is likely to remain. Ordinarily, the Federal Reserve Board would
permit such a redemption if the Subordinated Securities were redeemed with the
proceeds of a sale of, or
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replaced with a like amount of, a similar or higher quality capital instrument
and the bank holding company's capital position is considered fully adequate.
EVENTS OF DEFAULT; DEFAULTS
The only Events of Default under the Subordinated Indenture with respect to
Subordinated Securities of any series will be certain events in bankruptcy or
insolvency of the Corporation or the receivership of the Bank (Subordinated
Indenture, Section 501).
If an Event of Default with respect to Subordinated Securities of any
series at the time Outstanding occurs and is continuing, the Trustee or the
Holders of at least 25 percent in principal amount of the Outstanding
Subordinated Securities of that series may declare the principal amount of (or,
if any of the Subordinated Securities of that series are Discount Securities or
Indexed Securities, such portion of the principal amount of such Subordinated
Securities as may be specified in the terms thereof) and all accrued but unpaid
interest on all the Subordinated Securities of that series to be due and payable
immediately, by a written notice to the Corporation (and to the Trustee, if
given by Holders), and upon any such declaration such principal amount (or
specified amount) and interest shall become immediately due and payable
(Subordinated Indenture, Section 502). The foregoing provision would, in the
event of the bankruptcy or insolvency of the Corporation, be subject as to
enforcement to the broad equity powers of a federal bankruptcy court and to the
determination by that court of the nature and status of the payment claims of
the Holders of the Subordinated Securities. At any time after a declaration of
acceleration with respect to the Subordinated Securities of any series has been
made, but before a judgment or decree for payment of the money due has been
obtained, the Holders of a majority in principal amount of Outstanding
Subordinated Securities of that series may, under certain circumstances, rescind
and annul such acceleration but only if all Defaults have been remedied, or if
permitted, waived and if certain other conditions have been satisfied
(Subordinated Indenture, Sections 502, 513).
The following events will be Defaults under the Subordinated Indenture with
respect to Subordinated Securities of any series: (a) an Event of Default with
respect to such series of Subordinated Securities; (b) failure to pay principal
or premium, if any, on any Subordinated Security of that series at Maturity,
continued for seven days; and (c) failure to pay any interest, if any, on any
Subordinated Security of that series when due and payable, continued for 30 days
(Subordinated Indenture, Section 503).
If the Corporation does not pay any installment of interest on the
Subordinated Securities of any series on the applicable Interest Payment Date or
all or any part of any installment of principal thereof at the Stated Maturity
with respect to such principal, the obligation to make such payment and such
Interest Payment Date or Stated Maturity, as the case may be, shall be deferred
until (i) in the case of a payment of interest, the date upon which a dividend
is paid on any class of share capital of the Corporation and (ii) in the case of
a payment of principal, the first Business Day after the date that falls six
months after the original Stated Maturity with respect to such principal.
Failure by the Corporation to make any such payment prior to such deferred
Interest Payment Date or Stated Maturity shall not constitute a default by the
Corporation or otherwise allow any holder to sue the Corporation for such
payment or to take any other action. Each payment so deferred will accrue
interest at the rate per annum shown on the front cover of the applicable
Prospectus Supplement. Any payment so deferred shall not be treated as due for
any purpose (including, without limitation, for the purposes of ascertaining
whether or not a Default has occurred until the deferred Interest Payment Date
or Stated Maturity, as the case may be). Any such deferral shall take place only
once with respect to any payment of interest or principal.
The maturity of the Subordinated Securities will be subject to acceleration
only in the event of certain events of bankruptcy or insolvency of the
Corporation or the receivership of the Bank. There will be no right of
acceleration of the payment of principal of the Subordinated Securities of any
series upon a default in the payment of principal of or premium, if any, or
interest, if any, or a default in the performance of any covenant or agreement
in the Subordinated Securities or the Subordinated Indenture or any Default
other than an Event of Default. If a Default with respect to the Subordinated
Securities of any series occurs and is continuing, the Trustee may, subject to
certain limitations and conditions, seek to enforce its rights and the
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rights of the Holders of Subordinated Securities of such series or the
performance of any covenant or agreement in the Subordinated Indenture
(Subordinated Indenture, Section 503).
The Subordinated Indenture provides that, subject to the duty of the
Trustee upon the occurrence of a Default to act with the required standard of
care, the Trustee will be under no obligation to exercise any of its rights or
powers under the Subordinated Indenture at the request or direction of any of
the Holders of Subordinated Securities of any series unless such Holders shall
have offered to the Trustee reasonable indemnity or security against the costs,
expenses and liabilities which may be incurred. (Subordinated Indenture,
Sections 601, 603). Subject to certain provisions, the Holders of a majority in
principal amount of the Outstanding Subordinated Securities of any series will
have the right to 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 Subordinated Securities of
that series (Subordinated Indenture, Section 507).
The Corporation is required to furnish to the Trustee annually an Officer's
Certificate as to the performance and observance by the Corporation of certain
of the terms, provisions and conditions under the Subordinated Indenture and as
to the absence of default (Subordinated Indenture, Section 1204).
REPLACEMENT DEBT SECURITIES
Unless otherwise provided for in the applicable Prospectus Supplement, if a
Debt Security of any series is mutilated, destroyed, lost or stolen, it may be
replaced at the corporate trust office of the Trustee in the City and State of
New York upon payment by the Holder of such expenses as may be incurred by the
Corporation and the Trustee in connection therewith and the furnishing of such
evidence and indemnity as the Corporation and such Trustee may require.
Mutilated Debt Securities must be surrendered before new Debt Securities will be
issued (Section 306).
NOTICES
Unless otherwise provided in the applicable Prospectus Supplement, any
notice required to be given to a Holder of a Debt Security of any series that is
a Registered Security will be mailed to the last address of such Holder set
forth in the applicable Security Register, and any notice so mailed shall be
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice (Section 105).
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of
the Preferred Stock to which any Prospectus Supplement may relate. Certain terms
of any series of the Preferred Stock offered by any Prospectus Supplement will
be described in the Prospectus Supplement relating thereto. If so indicated in
the Prospectus Supplement, the terms of any series may differ from the terms set
forth below. The description of certain provisions of the Preferred Stock does
not purport to be complete and is subject to and qualified in its entirety by
reference to the provisions of the Corporation's Restated Certificate of
Incorporation (the "Certificate of Incorporation"), and the Certificate of
Designation, Powers, Preferences and Relative, Participating, Optional or other
Rights and the Qualifications, Limitations or Restrictions (the "Certificate of
Designation") establishing each particular series of the Preferred Stock, a copy
of which will be filed with the Commission at or prior to the time of the sale
of such series of Preferred Stock.
GENERAL
Under the Certificate of Incorporation, the Board of Directors of the
Corporation is authorized, without further stockholder action, to provide for
the issuance of up to (i) 49,158 shares of cumulative preferred stock, without
par value and (ii) up to 10,000,000 shares of preferred stock, par value $1.00
per share, in each case in one or more series, having such designations or
titles; dividend rates; special or relative rights in the event of liquidation,
distribution or sale of assets or dissolution or winding up of the Corporation;
any redemption or purchase account provisions; any conversion provisions; and
any voting rights thereof, as shall be set forth in
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the Certificate of Designation for each such series. The shares of any series of
Preferred Stock will be, when issued, fully paid and non-assessable and holders
thereof shall have no preemptive rights in connection therewith.
In connection with its acquisition of CTUS described under the heading "The
Corporation," the Corporation issued a series of Preferred Stock consisting of
100 shares, par value of $1.00 per share, (the "Series X Preferred Stock") to CT
Financial Services Inc., the parent of CTUS. The Series X Preferred Stock
provides for, and only for, a contingent dividend or redemption equal to the
amount of recovery, net of taxes and costs, if any, by the Bank as successor to
First Federal resulting from the pending action originally brought by First
Federal against the United States government alleging breaches by the government
of contractual obligations to First Federal following passage of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989.
On March 31, 1997, the Corporation redeemed 1,916,950 outstanding shares of
Adjustable Rate Cumulative Preferred Stock and 22,154 outstanding shares of
$5.50 Cumulative Preferred Stock. The shares of Adjustable Rate Cumulative
Preferred Stock were redeemed at $50 per share plus accrued and unpaid dividends
of $0.75 per share. The shares of $5.50 Cumulative Preferred Stock were redeemed
at $100 per share plus accrued and unpaid dividends of $1.375 per share.
The liquidation preference of any series of the Preferred Stock is not
necessarily indicative of the price at which shares of such series of Preferred
Stock will actually trade at or after the time of their issuance. The market
price of any series of Preferred Stock can be expected to fluctuate with changes
in market and economic conditions, the financial condition and prospects of the
Corporation and other factors that generally influence the market prices of
securities.
RANK
Any series of the Preferred Stock will, with respect to dividend rights and
rights on liquidation, winding up and dissolution, rank (i) senior to all
classes of common stock of the Corporation and with all equity securities issued
by the Corporation, the terms of which specifically provide that such equity
securities will rank junior to the Preferred Stock (collectively referred to as
the "Junior Securities"); (ii) on a parity with all equity securities issued by
the Corporation, the terms of which specifically provide that such equity
securities will rank on a parity with the Preferred Stock, (collectively
referred to as the "Parity Securities"); and (iii) junior to all equity
securities issued by the Corporation, the terms of which specifically provide
that such equity securities will rank senior to the Preferred Stock
(collectively referred to as the "Senior Securities"). As used in any
Certificate of Designation for these purposes, the term "equity securities" will
not include debt securities convertible into or exchangeable for equity
securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of the Corporation, out of
funds legally available therefor, cash dividends at such rates and on such dates
as are set forth in the Prospectus Supplement relating to such series of the
Preferred Stock. Dividends will be payable to holders of record of the Preferred
Stock as they appear on the books of the Corporation on such record dates, as
shall be fixed by the Board of Directors. Dividends on any series of Preferred
Stock may be cumulative or non-cumulative.
No full dividends may be declared or paid or funds set apart for the
payment of dividends on any Parity Securities unless dividends shall have been
paid or set apart for such payment on the Preferred Stock. If full dividends are
not so paid, the Preferred Stock shall share dividends pro rata with the Parity
Securities. If dividends are cumulative, any accumulated unpaid dividends will
not bear interest.
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REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Corporation or the holder thereof upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of the
Corporation or by any other method determined to be equitable by the Board of
Directors.
On and after a redemption date, unless the Corporation defaults in the
payment of the redemption price, dividends will cease to accrue on shares of
Preferred Stock called for redemption and all rights of holders of such shares
will terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies may not redeem shares of
preferred stock which constitute Tier 1 capital for purposes of the Federal
Reserve Board's risk-based capital requirements without the prior approval of
the Federal Reserve Board. Ordinarily, the Federal Reserve Board would permit
such a redemption if (1) the shares are redeemed with the proceeds of a sale by
the bank holding company of, or replaced by a like amount of, common stock or
perpetual preferred stock and the bank holding company's capital position is
considered fully adequate or (2) the Federal Reserve Board determines that the
bank holding company's capital position after such redemption would clearly be
adequate and that its condition and circumstances warrant the reduction of a
source of permanent capital.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, holders of each series of Preferred Stock that ranks senior to
the Junior Securities will be entitled to receive out of assets of the
Corporation available for distribution to stockholders, before any distribution
is made on any Junior Securities, including common stock, distributions upon
liquidation in the amount set forth in the Prospectus Supplement relating to
such series of Preferred Stock, plus an amount equal to any accrued and unpaid
dividends. If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the amounts payable with respect to the Preferred
Stock of any series and any other Parity Securities are not paid in full, the
holders of the Preferred Stock of such series and the Parity Securities will
share ratably in any such distribution of assets of the Corporation in
proportion to the full liquidation preferences to which each is entitled. After
payment of the full amount of the liquidation preference to which they are
entitled, the holders of such series of Preferred Stock will not be entitled to
any further participation in any distribution of assets of the Corporation.
However, neither (i) the merger or consolidation of the Corporation with or into
one or more corporations pursuant to any statute which provides in effect that
the stockholders of the Corporation shall continue as stockholders of the
continuing or combined corporation nor (ii) the acquisition by the Corporation
of assets or stock of another corporation shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by
applicable law, the holders of the Preferred Stock will have no voting rights.
Under regulations adopted by the Federal Reserve Board, if the holders of
shares of any series of Preferred Stock of the Corporation became entitled to
vote for the election of directors, such series may then be deemed a "class of
voting securities" and a holder of 25% or more of such series (or a holder of 5%
if it otherwise exercises a "controlling influence" over the Corporation) may
then be subject to regulation as a bank holding company in accordance with the
BHCA, as amended. In addition, at such time as such series is deemed a class of
voting securities, (i) any other bank holding company may be required to obtain
the approval of the Federal Reserve Board to acquire or retain 5% or more of
such series, and (ii) any person other
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than a bank holding company may be required to obtain the approval of the
Federal Reserve Board under the Change in Bank Control Act to acquire or retain
10% or more of such series.
CAPITAL SECURITIES
The following summary relates to securities that have previously been
issued by trust subsidiaries of the Corporation and are not being issued under
this Registration Statement.
As of the date hereof, the Corporation has outstanding, issued through
trust subsidiaries, $200,000,000 of 7.808% guaranteed mandatorily redeemable
preferred securities ("Capital Securities") due 2026 and $200,000,000 of 8.38%
Capital Securities due 2027. These Capital Securities are guaranteed by the
Corporation and represent preferred beneficial ownership interests in the assets
of the trusts, all of whose outstanding common shares are held by the
Corporation. The sole asset of the trusts consist of Junior Subordinated
Deferrable Debentures of the Corporation.
The Capital Securities are redeemable at the option of the Corporation in
the case of a specified tax event or regulatory capital event at a prepayment
price equal to the greater of (i) 100% of the principal amount of the Capital
Securities or (ii) the sum of the present values of a stated percentage of the
principal amount of the Capital Securities plus the remaining scheduled payments
of interest thereon from the prepayment date. In the absence of a regulatory
capital event, the 7.808% Capital Securities are redeemable at the option of the
Corporation on December 15, 2006 and during the first 12 months thereafter at a
premium of 3.904%, at varying lesser amounts thereafter and without premium
after December 15, 2016. Similarly, the 8.38% Capital Securities are redeemable
at the option of the Corporation on May 15, 2007 and during the first 12 months
thereafter at a premium of 4.19%, at varying lesser amounts thereafter and
without premium after May 15, 2017.
PLAN OF DISTRIBUTION
The Corporation may sell Securities to one or more underwriters for public
offering and sale by them or may sell Securities to investors directly or
through agents which solicit to receive offers on behalf of the Corporation or
through dealers or through a combination of any such methods of sale. The
applicable Prospectus Supplement will set forth the terms of the offering of any
Securities, including the names of the underwriters, the purchase price of such
Securities and the proceeds to the Corporation from such sale, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price, any discounts or concessions allowed or reallowed or paid
to dealers, and any securities exchanges on which such Securities may be listed.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. Such Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Unless otherwise set forth in the applicable Prospectus
Supplement, the obligations of the underwriters to purchase such Securities will
be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all of such Securities if any of such Securities are
purchased.
The Corporation may, from time to time, authorize agents acting on a best
efforts basis as agents of the Corporation to solicit or receive offers to
purchase the Securities upon the terms and conditions as are set forth in the
applicable Prospectus Supplement. In connection with the sale of Securities,
underwriters or agents may be deemed to have received compensation from the
Corporation in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Securities for whom they may act as
agents. Underwriters may sell Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agent. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
24
<PAGE> 26
Underwriters, dealers and agents participating in a distribution of the
Securities (including agents only soliciting or receiving offers to purchase
Securities on behalf of the Corporation) may be deemed to be underwriters, and
any discounts and commissions received by them and any profit realized by them
on resale of the Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters, dealers and agents may be
entitled, under agreements entered into with the Corporation, to indemnification
against and contribution toward certain civil liabilities, including liabilities
under the Securities Act. The Corporation may agree to reimburse underwriters or
agents for certain expenses incurred in connection with the distribution of the
Securities.
If so indicated in the applicable Prospectus Supplement, the Corporation
will authorize agents or dealers acting as the Corporation's agents to solicit
offers by certain institutions to purchase Securities from the Corporation at
the public offering price set forth in such Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery on
the date or dates stated in such Prospectus Supplement. Each Contract will be
for an amount not less than, and the aggregate principal amount of Securities
sold pursuant to Contracts shall be not less nor more than, the respective
amounts stated in such Prospectus Supplement. Institutions with whom Contracts,
when authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions, and other institutions but will in all cases be subject to the
approval of the Corporation. Contracts will not be subject to any conditions
except (i) the purchase by an institution of the Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and (ii)
if the Securities are being sold to underwriters, the Corporation shall have
sold to such underwriters the total principal amount of the Securities less the
principal amount thereof covered by Contracts.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, by one or more firms
("remarketing firms") acting as principals for their own accounts or as agents
for the Corporation. Any remarketing firm will be identified and the terms of
its agreement, if any, with the Corporation and its compensation will be
described in the Prospectus Supplement. Remarketing firms may be deemed to be
underwriters in connection with the Securities remarketed thereby.
Certain of the underwriters, dealers or agents and their associates may be
customers of, engage in transactions with, and perform services for, the
Corporation in the ordinary course of business.
HSBC Securities, Inc., an affiliate of the Corporation, may be a managing
underwriter, underwriter, market-maker or agent in connection with any offer or
sale of the Securities. Each offering of the Securities will be conducted in
compliance with any applicable requirements of Rule 2720 of the Conduct Rules of
the National Association of Securities Dealers, Inc. regarding the underwriting
by HSBC Securities, Inc. of the securities of an affiliate. In addition, this
Prospectus may be used by HSBC Securities, Inc. in connection with offers and
sales related to market-making activities. HSBC Securities, Inc. may act as
principal or agent in any such transactions. Such sales will be made at
negotiated prices related to the prevailing market prices at the time of sale.
ERISA MATTERS
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
imposes certain restrictions on employee benefit plans ("Plans") that are
subject to ERISA and on persons who are fiduciaries with respect to such Plans.
In accordance with ERISA's general fiduciary requirements, a fiduciary with
respect to any such Plan who is considering the purchase of the Securities on
behalf of such Plan should determine whether such purchase is permitted under
the governing Plan documents and is prudent and appropriate for the Plan in view
of its overall investment policy and the composition and diversification of its
portfolio. Other provisions of ERISA and Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), prohibit certain transactions involving
the assets of a Plan and persons who have certain specified relationships to the
Plan ("parties in interest" within the meaning of ERISA or "disqualified
persons" within the meaning of Section 4975 of the Code). Thus, a Plan fiduciary
considering the purchase of
25
<PAGE> 27
the Securities should consider whether such a purchase might constitute or
result in a prohibited transaction under ERISA or Section 4975 of the Code.
The Corporation, directly or through its affiliates, may be considered a
"party in interest" or a "disqualified person" with respect to many Plans that
are subject to ERISA. The purchase of Securities by a Plan that is subject to
the fiduciary responsibility provisions of ERISA or the prohibited transaction
provisions of Section 4975 of the Code (including individual retirement accounts
and other plans described in Section 4975(e)(1) of the Code) and with respect to
which the Corporation is a party in interest or a disqualified person may
constitute or result in a prohibited transaction under ERISA or Section 4975 of
the Code, unless such Securities are acquired pursuant to and in accordance with
an applicable exemption, such as Prohibited Transaction Class Exemption ("PTCE")
84-14 (an exemption for certain transactions determined by an independent
qualified professional asset manager), PTCE 91-38 (an exemption for certain
transactions involving bank collective investment funds), PTCE 90-1 (an
exemption for certain transactions involving insurance company pooled separate
accounts), PTCE 95-60 (an exemption for certain transactions involving insurance
company general accounts), or PTCE 96-23 (an exemption for certain transactions
determined by an in-house asset manager). ANY PENSION OR OTHER EMPLOYEE BENEFIT
PLAN PROPOSING TO ACQUIRE ANY SECURITIES SHOULD CONSULT WITH ITS COUNSEL.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Corporation by Cleary, Gottlieb, Steen & Hamilton, special counsel to the
Corporation, and for the Underwriters by ________.
EXPERTS
The consolidated balance sheets of the Corporation as of December 31, 1996
and 1997, and the related consolidated statements of income, changes in
shareholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1997 and the consolidated balance sheets of the Bank
as of December 31, 1996 and 1997 contained in the Corporation's 1997 Form 10-K
have been incorporated herein by reference in reliance upon the report of KPMG
Peat Marwick LLP ("KPMG"), independent certified public accountants,
incorporated herein by reference, and upon the authority of such firm as experts
in accounting and auditing. To the extent that KPMG audits and reports on
consolidated financial statements of the Corporation and the Bank issued on
future dates and consents to the use of such reports in this registration
statement, such consolidated financial statements also will be incorporated by
reference in this registration statement in reliance upon KPMG's reports and
upon such authority.
26
<PAGE> 28
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
securities being registered other than underwriting compensation are as follows:
<TABLE>
<S> <C>
SEC registration fee........................................ $ 151,285
Rating agency fees.......................................... $ 500,000
Printing and engraving expenses............................. $ 50,000
----------
Accountants' fees and expenses.............................. $ 60,000
Trustees' fees and expenses................................. $ 30,000
Blue sky fees and expenses.................................. $ 10,000
NASD fee.................................................... $ 30,500
Legal fees and expenses..................................... $ 250,000
Miscellaneous............................................... $ 50,000
----------
Total....................................................... $1,131,785
==========
</TABLE>
- ---------------
All the above amounts except the SEC registration fee and the NASD fee are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended, provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. Section 145 further provides that a corporation
similarly may indemnify any such person serving in any such capacity who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnify for such
expenses which the Court of Chancery or such other court shall deem proper.
The registrant has entered into indemnification agreements with each of its
directors and officers indemnifying them against expenses, settlements,
judgments and fines incurred in connection with any threatened, pending or
completed action, suit, arbitration or proceeding, where the individual's
involvement is by reason of the fact that such person is or was a director or
officer or served at the Company's request as a director of another organization
(except that indemnification is not provided against judgments and fines in a
derivative suit unless permitted under Delaware law). An individual may not be
indemnified if such person is
II-1
<PAGE> 29
found not to have acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the registrant, except
to the extent Delaware law permits broader contractual indemnification. These
indemnification agreements provide procedures, presumptions and remedies which
substantially strengthen the indemnification rights beyond those provided by the
registrant's Certificate of Incorporation (the "Certificate") and by Delaware
law.
The Certificate provides that each person who was or is made a party to, or
is involved in, any action, suit, proceeding or claim by reason of the fact that
he or she is or was a director, officer or employee of the registrant (or is or
was serving at the request of the registrant as a director, officer, trustee,
employee or agent of any other enterprise including service with respect to
employee benefit plans) shall be indemnified and held harmless by the
registrant, to the full extent permitted by Delaware law, as in effect from time
to time, against all expenses (including attorneys' fees and expenses),
judgments, fines, penalties and amounts to be paid in settlement incurred by
such person in connection with the investigation, preparation to defend or
defense of such action, suit, proceeding or claim.
The rights to indemnification and the payment of expenses provided by the
Certificate do not apply to any action, suit, proceeding or claim initiated by
or on behalf of a person otherwise entitled to the benefit of such provisions.
Any person seeking indemnification under the Certificate shall be deemed to have
met the standard of conduct required for such indemnification unless the
contrary shall be established. Any repeal or modification of such
indemnification provisions shall not adversely affect any right or protection of
a director or officer with respect to any conduct of such director or officer
occurring prior to such repeal or modification.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of a director (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) under section 174 of the Delaware General Corporation Law (relating to
unlawful payment of dividend and unlawful stock purchase and redemption) or (iv)
for any transaction from which the director derived an improper personal
benefit. The registrant has provided in the Certificate that its directors shall
be exculpated from liability as provided under Delaware law.
The Corporation maintains insurance policies covering liabilities of
directors and officers to the extent not covered by indemnification from the
Corporation, subject to the conditions and exclusions of the policies,
deductible provisions, a maximum amount of coverage of L100 million and disputes
with insurers about availability of coverage.
For the undertaking with respect to indemnification, see Item 17 herein.
See the Form of proposed Underwriting Agreement filed as Exhibit 1(a) for
certain indemnification provisions.
II-2
<PAGE> 30
ITEM 16. EXHIBITS.
<TABLE>
<C> <S> <C> <C>
(1) (a) -- Form of Underwriting Agreement relating to the Debt
Securities.
(4) (a) -- Restated Certificate of Incorporation of the Corporation, as
amended through June 12, 1996, incorporated herein by
reference to Exhibit 3(a) to the Corporation's Annual Report
on Form 10-K for the year ended December 31, 1995 (File No.
1-2940).
(4) (b) -- By-Laws of the Corporation, as amended through June 12,
1996, incorporated herein by reference to Exhibit 3(b) to
the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 1-2940).
(4) (c) -- Senior Indenture, dated as of October 24, 1996, between the
Corporation and Bankers Trust Company ("Bankers Trust"), as
Trustee, incorporated herein by reference to the
Corporation's report on Form 8-K dated November 1, 1996.
(4) (d) -- Subordinated Indenture dated as of October 24, 1996, between
the Corporation and Bankers Trust, as Trustee (the
"Subordinated Indenture"), incorporated herein by reference
to the Corporation's report on Form 8-K dated November 1,
1996.
(4) (e) -- Supplemental Indenture dated as of December 12, 1996, to the
Subordinated Indenture, between the Corporation and Bankers
Trust, as Trustee, incorporated herein by reference to the
Corporation's report on Form 8-K dated December 20, 1996.
(5) -- Opinion of Cleary, Gottlieb, Steen & Hamilton.
(12) (a) -- Computation of the Corporation's Consolidated Ratio of
Earnings to Fixed Charges (excluding interest on deposits).
(12) (b) -- Computation of the Corporation's Consolidated Ratio of
Earnings to Fixed Charges (including interest on deposits).
(12) (c) -- Computation of the Corporation's Consolidated Ratio of
Earnings to Combined Fixed Charges and Preferred Stock
Dividend Requirements (excluding interest on deposits).
(12) (d) -- Computation of the Corporation's Consolidated Ratio of
Earnings to Combined Fixed Charges and Preferred Stock
Dividend Requirements (including interest on deposits).
(21) -- Subsidiaries of the Corporation. The Corporation's only
significant subsidiary, as defined, is Marine Midland Bank,
a state bank organized under the laws of New York State.
(23) (a) -- Consent of KPMG Peat Marwick LLP.
(23) (b) -- Consent of Cleary, Gottlieb, Steen & Hamilton (included in
the opinion filed herewith as Exhibit 5).
(24) -- Power of Attorney of certain officers and directors.
(25) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Bankers Trust, as Trustee.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, 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, as amended;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement; and
II-3
<PAGE> 31
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that the undertakings set forth in clauses (i) and (ii) above
do not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934, as amended, that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, as amended, each filing of the registrant's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934, as
amended, 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.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in such Act 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 hereby, 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 such Act and
will be governed by the final adjudication of such issue.
(6) For purposes of determining any liability under the Securities Act of
1933, as amended, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(7) For the purpose of determining any liability under the Securities Act
of 1933, as amended, each post-effective amendment that contains a form of
prospectus 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.
(8) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of any additional trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-4
<PAGE> 32
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the registrant
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 Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Buffalo, State of New York, on the
26th day of May, 1998.
HSBC AMERICAS, INC.,
By *
(I. Malcolm Burnett)
(President And Chief Executive
Officer)
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>
* President, Chief Executive Officer May 26, 1998
(I. Malcolm Burnett) and Director
* Executive Vice President May 26, 1998
(Robert M. Butcher) and Chief Financial Officer
(Principal Financial Officer)
* Executive Vice President May 26, 1998
(Gerald A. Ronning) and Controller
(Principal Accounting Officer)
* Director May 26, 1998
(James H. Cleave)
* Director May 26, 1998
(Youssef A. Nasr)
</TABLE>
- ---------------
* The undersigned, by signing his name hereto, does hereby sign this
registration statement or amendment on behalf of each of the above indicated
directors and officers of HSBC Americas, Inc. pursuant to powers of attorney
executed on behalf of each such officer.
<TABLE>
<S> <C> <C>
By /s/ PHILIP S. TOOHEY
(Philip S. Toohey, Attorney-In-Fact)
</TABLE>
II-5
<PAGE> 33
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
------- ------- ------------
<C> <C> <S> <C>
(1)(a) -- Form of Underwriting Agreement relating to the Debt
Securities.
(4)(a) -- Restated Certificate of Incorporation of the Corporation, as
amended through June 12, 1996, incorporated herein by
reference to Exhibit 3(a) to the Corporation's Annual Report
on Form 10-K for the year ended December 31, 1995 (File No.
1-2940).
(4)(b) -- By-Laws of the Corporation, as amended through June 12,
1996, incorporated herein by reference to Exhibit 3(b) to
the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 1-2940).
(4)(c) -- Senior Indenture, dated as of October 24, 1996, between the
Corporation and Bankers Trust Company ("Bankers Trust"), as
Trustee, incorporated herein by reference to the
Corporation's report on Form 8-K dated November 1, 1996.
(4)(d) -- Subordinated Indenture dated as of October 24, 1996, between
the Corporation and Bankers Trust, as Trustee (the
"Subordinated Indenture"), incorporated herein by reference
to the Corporation's report on Form 8-K dated November 1,
1996.
(4)(e) -- Supplemental Indenture dated as of December 12, 1996, to the
Subordinated Indenture, between the Corporation and Bankers
Trust, as Trustee, incorporated herein by reference to the
Corporation's report on Form 8-K dated December 20, 1996.
(5) -- Opinion of Cleary, Gottlieb, Steen & Hamilton.
(12)(a) -- Computation of the Corporation's Consolidated Ratio of
Earnings to Fixed Charges (excluding interest on deposits).
(12)(b) -- Computation of the Corporation's Consolidated Ratio of
Earnings to Fixed Charges (including interest on deposits).
(12)(c) -- Computation of the Corporation's Consolidated Ratio of
Earnings to Combined Fixed Charges and Preferred Stock
Dividend Requirements (excluding interest on deposits).
(12)(d) -- Computation of the Corporation's Consolidated Ratio of
Earnings to Combined Fixed Charges and Preferred Stock
Dividend Requirements including interest on deposits).
(21) -- Subsidiaries of the Corporation. The Corporation's only
significant subsidiary, as defined, is Marine Midland Bank,
a state bank organized under the laws of New York State.
(23)(a) -- Consent of KPMG Peat Marwick LLP.
(23)(b) -- Consent of Cleary, Gottlieb, Steen & Hamilton (included in
the opinion filed herewith as Exhibit 5).
(24) -- Power of Attorney of certain officers and directors.
(25) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Bankers Trust, as Trustee.
</TABLE>
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<PAGE> 1
Exhibit 1(a)
HSBC Americas, Inc.
[__ % [Senior] [Subordinated]
Notes due _______]
[[Shares] [$ Preferred Stock] [$ par value]]
Underwriting Agreement(1)
New York, New York
, 19
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
HSBC Americas, Inc., a Delaware corporation (the "Company"), proposes
to sell to the several underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, [the principal amount of its securities identified in Schedule
I hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of , 19 , between the Company and , as trustee (the "Trustee")] [__
shares of Preferred Stock, $__ par value, of the Company (the "Securities"). To
the extent there are no additional Underwriters listed on Schedule I other than
you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
- --------
(1) Note: This form of Underwriting Agreement may be used for Debt
Securities or Preferred Stock. Certain bracketed language is only
applicable to either Debt Securities or Preferred Stock.
<PAGE> 2
2
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one of the
following: (1) after the Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in accordance with Rules 430A
and 424(b), (2) prior to the Effective Date of such registration statement, an
amendment to such registration statement (including the form of final prospectus
supplement) or (3) a final prospectus in accordance with Rules 415 and 424(b).
In the case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be included in
such registration statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act[, ] [and] the Exchange Act [and the Trust
Indenture Act] and the respective rules thereunder; on the Effective Date and at
the Execution Time, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; [on the Effective Date and on the Closing Date the Indenture did or
will comply in all material respects with the requirements of the Trust
Indenture Act and the rules thereunder;] and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include 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; provided, however, that the Company makes no
representations or warranties as to [(i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii)] the information contained
in or omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance
<PAGE> 3
3
upon and in conformity with information furnished herein or in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final Prospectus
(or any supplement thereto).
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at [the purchase price set forth in
Schedule I hereto the principal] [a purchase price of $__ per share the] amount
of the Securities set forth opposite such Underwriter's name in Schedule II
hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities
shall be made [on the date and at the time specified in Schedule I hereto] [at
10:00 a.m. New York City time, on ________, 199_] or at such time on such later
date not more than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise instruct.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period
<PAGE> 4
4
prescribed and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule 424(b)
or when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional information, (5) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request. The Company
will pay the expenses of printing or other production of all documents relating
to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and will pay any fee of
the National Association of
<PAGE> 5
5
Securities Dealers, Inc., in connection with its review of the offering;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(f) [Until the Business Day set forth on Schedule I hereto, the] [The]
Company will not, [for a period of ___ days following the Execution Time]
without the prior written consent of [specify Underwriter], offer, sell or
contract to sell, or otherwise dispose of (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or any
person in privity with the Company or any affiliate of the Company) directly or
indirectly, or announce the offering of, [(i)] any debt securities issued or
guaranteed by the Company (other than the Securities) [or (ii) shares of any
class of capital stock of the Company (other than the Securities) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any liquidation or dissolution of the Company, over shares of any other
class of capital stock of the Company].
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have caused ________, counsel for the Company, to
have furnished to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives to the effect that:
<PAGE> 6
6
(i) each of the Company and Marine Midland Bank (the "Subsidiary") has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own or lease, as the
case may be, and to operate its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do business as
a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification and the Company is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended;
(ii) all the outstanding shares of capital stock of the Subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final Prospectus,
all outstanding shares of capital stock of the Subsidiary are owned by the
Company either directly or through wholly owned subsidiaries free and clear
of any perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set forth
in the Final Prospectus; the Securities conform in all material respects to
the description thereof contained in the Final Prospectus; [the Securities
are duly listed and admitted and authorized for trading subject to official
notice of issuance [and evidence of satisfactory distribution] on the Stock
Exchange], and, except as set forth in the Final Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company are
outstanding;
(iv) [the Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect); and 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 pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture;]
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no franchise,
<PAGE> 7
7
contract or other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the statements
included or incorporated by reference in the Final Prospectus describing
any legal proceedings relating to the Company fairly summarize such
matters;
(vi) the Registration Statement has become effective under the Act;
any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto, pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of the Act[,
] [and] the Exchange Act [and the Trust Indenture Act] and the respective
rules thereunder; and such counsel has no reason to believe that on the
Effective Date or at the Execution Time the Registration Statement
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus as of its
date and on the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (in each case, other than the financial
statements and other financial information contained therein, as to which
such counsel need express no opinion);
(vii) this Agreement has been duly authorized, executed and delivered
by the Company;
(viii) the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in this Agreement
and in the Final Prospectus and such other approvals (specified in such
opinion) as have been obtained;
(x) neither [the execution and delivery of the Indenture,] the issue
and sale of the Securities, nor the consummation of any other of the
<PAGE> 8
8
transactions herein contemplated nor the fulfillment of the terms hereof
will conflict with, result in a breach or violation of or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
its subsidiaries pursuant to, (i) the charter or by-laws of the Company or
its subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or its
subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties; and
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the States
of New York and Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion of
other counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Final Prospectus in
this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from , counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to
the Representatives, with respect to the issuance and sale of the Securities,
the Indenture, the Registration Statement, the Final Prospectus (together with
any supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
<PAGE> 9
9
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
or incorporated by reference in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) The Company shall have caused [name of accountants] to have
furnished to the Representatives, at the Execution Time and at the Closing Date,
letters (which may refer to letters previously delivered to one or more of the
Representatives), dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect, except as provided in Schedule I
hereto, that:
(i) in their opinion the audited financial statements and financial
statement schedules [and pro forma financial statements] included or
incorporated by reference in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; [their
limited review, in accordance with standards established under Statement on
Auditing Standards No. 71, of the unaudited interim financial information
for the - month period ended , 19 and as at , 19 [, as
indicated in their report dated , 19 incorporated by reference in the
Registration Statement and the Final Prospectus];] carrying out certain
specified procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and
[executive and audit] committees of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to , 19 [insert date of the most
recent audited financial statements included or incorporated by reference
in the Registration
<PAGE> 10
10
Statement and Final Prospectus], nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements included or incorporated
by reference in the Registration Statement and the Final Prospectus do
not comply as to form in all material respects with applicable
accounting requirements of the Act and with the published rules and
regulations of the Commission with respect to financial statements
included or incorporated by reference in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited financial statements
are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to , 19 [insert date
of the most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated by
reference in the Registration Statement and the Final Prospectus],
there were any changes, at a specified date not more than five days
prior to the date of the letter, in the [long-term debt of the Company
and its subsidiaries or capital stock of the Company] or decreases in
the [stockholders' equity of the Company] [insert any other
appropriate balance sheet items, e.g.: or decreases in working capital
of the Company and its subsidiaries] as compared with the amounts
shown on the _____, 19__ [insert same date as above] consolidated
balance sheet included or incorporated by reference in the
Registration Statement and the Final Prospectus, or for the period
from , 19 [insert date one day after the dates inserted above] to such
specified date there were any decreases, as compared with [insert the
appropriate comparative period; e.g.: the corresponding period in the
preceding year; or, the corresponding period in the preceding quarter;
or if no appropriate period exists, insert dollar amounts for each
item] in [net revenues or income before income taxes or in total or
per share amounts of net income of the Company and its subsidiaries]
[add to the list of items in brackets above any other appropriate
income statement items; e.g.: operating income; net interest income;
net interest income after provision for loan losses], except in all
instances for changes or decreases set forth in such letter, in which
case the letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is not deemed
necessary by the Representatives;
(3) the information included or incorporated by reference in the
Registration Statement and Final Prospectus in response to Regulation
S-K, Item 301 (Selected Financial Data), Item 302
<PAGE> 11
11
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is
not in conformity with the applicable disclosure requirements of
Regulation S-K; [or] [and]
(4) [If the interim financial statements included or incorporated
by reference in the Registration Statement and the Final Prospectus
are supplemented by later income statement information (so called
"capsule" information), add: the unaudited amounts of [describe the
capsule information and its location] do not agree with the amounts
set forth in the unaudited financial statements for the same periods
or were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited financial statements
included or incorporated by reference in the Registration Statement
and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information set forth under the captions " " and " "
in the Final Prospectus, the information included or incorporated by
reference in Items [1, 2, 6, 7 and 11] of the Company's Annual Report on
Form 10-K, incorporated by reference in the Registration Statement and the
Final Prospectus, [and] [the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q, incorporated by reference in the Registration Statement and the
Final Prospectus] [insert reference to any such information appearing in a
Current Report on Form 8-K incorporated by reference in the Registration
Statement and the Final Prospectus], agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of legal
interpretation[; and][.]
(iv) [To the extent a report on unaudited pro forma financial
statements is not included on annual or interim pro forma financial
statements, include the following, based on Example "D" of Statement on
Auditing Standards No. 72: on the basis of a reading of the unaudited pro
forma financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus (the "pro forma financial
statements"); carrying out certain specified procedures; inquiries of
certain officials of the Company [and ] [insert name of acquired
company, if appropriate] who have responsibility for financial and
accounting matters; and proving the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the pro forma
<PAGE> 12
12
financial statements, nothing came to their attention which caused them to
believe that the pro forma financial statements do not comply as to form in
all material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements.]
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries, except as set forth
in or contemplated in the Final Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above, is, in
the sole judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
[( ) The Securities shall have been listed and admitted and
authorized for trading on the Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representatives.]
( ) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
<PAGE> 13
13
The documents required to be delivered by this Section 6 shall be
delivered at the office of , counsel for the Underwriters, at [Underwriters'
counsel's address], on the Closing Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through [insert name of lead Underwriter] on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements
<PAGE> 14
14
set forth [in the last paragraph of the cover page regarding delivery of the
Securities, the legend in block capital letters on page [2] related to
stabilization, syndicate covering transactions and penalty bids] and, under the
heading "Underwriting" or "Plan of Distribution", (i) the sentences related to
concessions and reallowances and (ii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses
<PAGE> 15
15
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; PROVIDED, HOWEVER, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal
<PAGE> 16
16
amount of Securities set forth in Schedule II hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the General Counsel, [insert name of lead
Underwriter], at , New York, New York , Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to
[facsimile number] and confirmed to it at , attention of the
Legal Department.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
<PAGE> 17
17
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City [or________________].
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include
<PAGE> 18
18
any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
" Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration statement.
["Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended and the rules and regulations of the Commission
promulgated thereunder.]
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
HSBC AMERICAS, INC.
By: ........................
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first written above.
[Insert name of Underwriters]
By: [insert name of Underwriter]
By: ......................
Name:
Title:
<PAGE> 19
19
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE> 20
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: , 19 at 10:00 a.m. at
[name and address of Underwriters' counsel]
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of items to be covered by the letter from
[name of accountants] delivered pursuant to
Section 6(e) at the Execution Time:
<PAGE> 21
SCHEDULE II
Underwriters Principal Amount
- ------------ of Securities to
be Purchase
------------
................................. $
--------------
Total ............................. $
=========
<PAGE> 1
Exhibit 5
CLEARY, GOTTLIEB, STEEN & HAMILTON
ONE LIBERTY PLAZA
NEW YORK, NEW YORK 10006
(212) 225-2000
May 27, 1998
HSBC Americas, Inc.
One Marine Midland Center
Buffalo, New York 14203
Re: HSBC Americas, Inc. (FILE NO. 333-____)
---------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to HSBC Americas, Inc., a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), for the registration of (i) debt securities of the
Company, which may be senior (the "Senior Securities") or subordinated (the
"Subordinated Securities", and collectively with the Senior Securities, the
"Debt Securities"); and (ii) shares of preferred stock of the Company (the
"Preferred Stock", and collectively with the Debt Securities, the "Offered
Securities"). The Offered Securities being registered under the Registration
Statement will have an aggregate initial offering price of up to $750,000,000,
will be offered in one or more series and may be offered on a continuing or
delayed basis pursuant to the provisions of Rule 415 under the Securities Act of
1933, as amended (the "Act").
Unless otherwise provided in any prospectus supplement forming
a part of the Registration Statement relating to a particular series of Debt
Securities, the Senior Securities will be issued under an Indenture dated as of
October 24, 1996, as amended or supplemented from time to time (the "Senior
Indenture), between the Company and Bankers Trust Company, as Senior Trustee
(the "Senior Trustee"), and the Subordinated Securities will be issued under an
Indenture dated as of October 24, 1996, as supplemented by a Supplemental
Indenture dated December 12, 1996 and as may be further amended or supplemented
from time to time (the "Subordinated Indenture"), between the Company and
Bankers Trust Company, as Subordinated Trustee (the "Subordinated Trustee"). The
Preferred Stock will be created by a Certificate of Designations (the
"Certificate of Designations") relating to a particular series of Preferred
Stock.
We have participated in the preparation of the Registration
Statement and have reviewed originals or copies certified or otherwise
identified to our satisfaction of all such documents and corporate records of
the Company and such other instruments and other certificates of public
officials, officers and representatives of the Company and such other
<PAGE> 2
persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed.
Based on the foregoing, and subject to the further assumptions
and qualifications set forth below, including the assumptions that (i) the
Registration Statement and any amendments thereto (including post-effective
amendments) will have become effective and comply with all applicable laws; (ii)
the Registration Statement will be effective and will comply with all applicable
laws at the time the Offered Securities are offered or issued as contemplated by
the Registration Statement; (iii) a Prospectus Supplement or term sheet will
have been prepared and filed with the Commission describing the Offered
Securities offered thereby and will comply with all applicable laws; (iv) all
Offered Securities will be issued and sold in compliance with applicable federal
and state securities laws and in the manner stated in the Registration Statement
and the appropriate Prospectus Supplement or term sheet; and (v) a definitive
purchase, underwriting or similar agreement and any other necessary agreement
with respect to any Offered Securities offered or issued will have been duly
authorized and validly executed and delivered by the Company and the other
parties thereto; it is our opinion that:
1. With respect to Debt Securities to be issued under either
the Senior Indenture or Subordinated Indenture, when (A) the Senior Trustee or
Subordinate Trustee, as applicable, is qualified to act as Senior Trustee or
Subordinated Trustee, as applicable, under the Senior Indenture or Subordinated
Indenture, as applicable, (B) the Senior Trustee or Subordinated Trustee, as
applicable, has duly executed and delivered the Subordinated Indenture or Senior
Indenture, as applicable, (C) the Senior Indenture or Subordinated Indenture, as
applicable, has been duly authorized and validly executed and delivered by the
Company to the Senior Trustee or Subordinated Trustee, as applicable, (D) the
Senior Indenture or Subordinate Indenture, as applicable, has been duly
qualified under the Trust Indenture Act of 1939, as amended, (E) the Board of
Directors of the Company or a duly constituted and acting committee thereof
(such Board of Directors or committee being hereinafter referred to as the
"Board") has taken all necessary corporate action to approve the issuance and
terms of such Debt Securities, the terms of the offering thereof and related
matters, and (F) such Debt Securities have been duly executed, authenticated,
issued and delivered in accordance with the provisions of the Senior Indenture
or Subordinated Indenture, as applicable, and the applicable definitive
purchase, underwriting or similar agreement approved by the Board upon payment
of the consideration therefor provided therein, such Debt Securities will
constitute the legal, valid, binding and enforceable obligations of the Company,
entitled to the benefits of the Senior Indenture or the Subordinated Indenture,
as applicable; and
2. With respect to shares of Preferred Stock, when both (A)
the Board has taken all necessary corporate action to approve the issuance and
terms of the shares of Preferred Stock, the terms of the offering thereof, and
related matters, including the adoption of a Certificate of
2
<PAGE> 3
Designation relating to such Preferred Stock and the filing of the Certificate
of Designation with the Secretary of State of the State of Delaware and (B)
certificates representing the shares of Preferred Stock have been duly executed,
countersigned, registered and delivered either (i) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Board upon payment of the consideration therefor (not less than the par
value of the Preferred Stock) provided for therein or (ii) upon conversion or
exercise of any other Offered Security, in accordance with the terms of such
Offered Security or the instrument governing such Offered Security providing for
such conversion or exercise as approved by the Board, for the consideration
approved by the Board (not less than the par value of the Preferred Stock), then
the Shares of Preferred Stock will be validly issued by the Company and fully
paid and nonassessable.
Insofar as the foregoing opinions relate to the legality,
validity, binding effect or enforceability of any agreement or obligation of the
Company, we have assumed (a) that each party to such agreement or obligation
(other than the Company) has satisfied those legal requirements that are
applicable to it to the extent necessary to make such agreement or obligation
enforceable against it, and (b) such opinions are subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general principles of equity.
The foregoing opinions are limited to the law of the State of
New York 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 and to the reference to this firm under the
heading "Legal Opinions" in the Prospectus included in the Registration
Statement. In giving such consent, we do not thereby admit that we are "experts"
within the meaning of the Act or the rules and regulations of the Securities and
Exchange Commission issued thereunder with respect to any part of the
Registration Statement, including this exhibit.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By /s/ James F. Munsell
-----------------------------------
James F. Munsell, a Partner
3
<PAGE> 1
Exhibit 12(a)
HSBC AMERICAS, INC. AND SUBSIDIARIES
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(Excluding Interest on Deposits)
(In Millions, Except Ratios)
<TABLE>
<CAPTION>
Three Months
Ended March 31,(a) Years Ended December 31,
--------------- ----------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income (Loss) Before Cumulative Effect of Change
in Accounting Principle $ 123 $ 115 $ 471 $ 380 $ 284 ($ 37) ($230)
Applicable Income Tax Expense 66 49 193 171 52 126 22
Undistributed Equity Earnings(b) 1 0(c) 2 2 0(c) 4 4
Fixed Charges:
Interest On:
Borrowed Funds 51 32 197 121 81 81 83
Long-Term Debt 27 22 112 48 50 86 116
One Third of Rents, Net of Income from Subleases (d) 3 4 14 12 12 11 14
----- ----- ----- ----- ----- ----- -----
Total Fixed Charges 81 58 323 181 143 178 213
Earnings Before Taxes Based on Income
and Fixed Charges $ 269 $ 222 $ 985 $ 730 $ 479 $ 263 $ 1
===== ===== ===== ===== ===== ===== =====
Consolidated Ratio of Earnings to
Combined Fixed Charges 3.32 3.83 3.05 4.03 3.35 1.48 0.00
===== ===== ===== ===== ===== ===== =====
</TABLE>
<PAGE> 1
Exhibit 12(b)
HSBC AMERICAS, INC. AND SUBSIDIARIES
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(Including Interest on Deposits)
(In Millions, Except Ratios)
<TABLE>
<CAPTION>
Three Months
Ended March 31,(a) Years Ended December 31,
----------------- --------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Total Fixed Charges (as above) $ 81 $ 58 $ 323 $ 181 $ 143 $ 178 $ 213
Add: Interest on Deposits 197 140 679 481 465 308 290
------ ------ ------ ------ ------ ------ ------
Total Fixed Charges and Interest on Deposits $ 278 $ 198 $1,002 $ 662 $ 608 $ 486 $ 503
Earnings Before Taxes Based on Income and
Fixed Charges (as above) $ 269 $ 222 $ 985 $ 730 $ 479 $ 263 $ 1
Add: Interest on Deposits 197 140 679 481 465 308 290
------ ------ ------ ------ ------ ------ ------
Total $ 466 $ 362 $1,664 $1,211 $ 944 $ 571 $ 291
Consolidated Ratio of Earnings to
Combined Fixed Charges 1.68 1.83 1.66 1.83 1.55 1.17 0.58
====== ====== ====== ====== ====== ====== ======
<FN>
(a) Unaudited
(b) Undistributed equity earnings of less than fifty percent owned companies.
(c) Less than $500,000.
(d) The portion deemed representative of the interest factor.
* The amount by which earnings for the year ended December 31, 1993 were
insufficient to cover combined fixed charges were $212 million (excluding
and including interest on deposits).
</TABLE>
<PAGE> 1
Exhibit 12(c)
HSBC AMERICAS, INC. AND SUBSIDIARIES
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
(Excluding Interest on Deposits)
(In Millions, Except Ratios)
<TABLE>
<CAPTION>
Three Months
Ended March 31,(a) Years Ended December 31,
--------------- ---------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income (Loss) Before Cumulative Effect of Change
in Accounting Principle $ 123 $ 115 $ 471 $ 380 $ 284 ($ 37) ($230)
Applicable Income Tax Expense 66 49 193 171 52 126 22
Undistributed Equity Earnings(b) 1 0(c) 2 2 0(c) 4 4
Fixed Charges:
Interest On:
Borrowed Funds 51 32 197 121 81 81 83
Long-Term Debt 27 22 112 48 50 86 116
One Third of Rents, Net of Income from Subleases(d) 3 4 14 12 12 11 14
----- ----- ----- ----- ----- ----- -----
Total Fixed Charges 81 58 323 181 143 178 213
Earnings Before Taxes Based on Income
and Fixed Charges $ 269 $ 222 $ 985 $ 730 $ 479 $ 263 $ 1
===== ===== ===== ===== ===== ===== =====
Total Fixed Charges $ 81 $ 58 $ 323 $ 181 $ 143 $ 178 $ 213
Preferred Stock Dividends 0 1 1 6 6 6 6
Ratio of Pretax Income (Loss) to Income (Loss)
After Applicable Income Tax Expense 1.54 1.43 1.41 1.45 1.18 (e) (e)
----- ----- ----- ----- ----- ----- -----
Total Preferred Stock Dividend Factor 0 2 2 9 7 6 6
Fixed Charges, Including Preferred Stock Dividend Factor $ 81 $ 60 $ 325 $ 190 $ 150 $ 184 $ 219
===== ===== ===== ===== ===== ===== =====
Consolidated Ratio of Earnings to Combined Fixed
Charges and Dividends on Preferred Stock 3.32 3.70 3.03 3.84 3.19 1.43 0.00
===== ===== ===== ===== ===== ===== =====
</TABLE>
<PAGE> 1
Exhibit 12(d)
HSBC AMERICAS, INC. AND SUBSIDIARIES
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
(Including Interest on Deposits)
(In Millions, Except Ratios)
<TABLE>
<CAPTION>
Three Months
Ended March 31,(a) Years Ended December 31,
----------------- --------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Total Fixed Charges, Including Preferred Stock
Dividend Factor (as above) $ 81 $ 60 $ 325 $ 190 $ 150 $ 184 $ 219
Add: Interest on Deposits 197 140 679 481 465 308 290
------ ------ ------ ------ ------ ------ ------
Fixed Charges, Including Preferred Stock
Dividend Factor and Interest on Deposits $ 278 $ 200 $1,004 $ 671 $ 615 $ 492 $ 509
Earnings (Loss) Before Taxes Based on
Income and Fixed Charges (as above) $ 269 $ 222 $ 985 $ 730 $ 479 $ 263 $ 1
Add: Interest on Deposits 197 140 679 481 465 308 290
------ ------ ------ ------ ------ ------ ------
Total $ 466 $ 362 $1,664 $1,211 $ 944 $ 571 $ 291
====== ====== ====== ====== ====== ====== ======
Consolidated Ratio of Earnings to Combined Fixed
Charges and Dividends on Preferred Stock 1.68 1.81 1.66 1.80 1.53 1.16 0.57
====== ====== ====== ====== ====== ====== ======
<FN>
(a) Unaudited
(b) Undistributed equity earnings of less than fifty percent owned companies.
(c) Less than $500,000.
(d) The portion deemed representative of the interest factor.
(e) Ratio is less than one, therefore actual preferred stock dividend amount
used.
* The amount by which earnings for the year ended December 31, 1993 were
insufficient to cover combined fixed charges and dividends on preferred
stock were $218 million (excluding and including interest on deposits).
</TABLE>
<PAGE> 1
Exhibit 23(a)
The Board of Directors
HSBC Americas, Inc.:
We consent to the incorporation by reference in Form S-3 of HSBC Americas, Inc.
of our report dated January 23, 1998, with respect to the consolidated balance
sheets of HSBC American, Inc. and subsidiaries as of December 31, 1997 and
1996, and the related consolidated statements of income, changes in
shareholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1997, and the consolidated balance sheets of Marine
Midland Bank and subsidiaries as of December 31, 1997 and 1996, which report
appears in the December 31, 1997 annual report on Form 10-K of HSBC Americas,
Inc. We also consent to the reference to our firm under the heading "Experts"
in the Form S-3.
KPMG Peat Marwick LLP
Buffalo, New York
May 26, 1998
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
We, the undersigned officers and directors of HSBC Americas, Inc., hereby
severally and individually constitute and appoint Philip S. Toohey the true and
lawful attorney-in-fact and agent of each of us to execute in the name, place
and stead of each of us (individually and in any capacity stated below), a
Registration Statement of HSBC Americas, Inc. on Form S-3 to register Debt
Securities and Preferred Stock and any and all amendments (including
post-effective amendments) to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents or instruments necessary or
advisable in connection therewith, with the Securities and Exchange Commission,
such attorney-in-fact and agent to have full power and authority to do and
perform in the name and on behalf of each of the undersigned every act
whatsoever necessary or advisable to be done in and about the premises, as
fully to all intents and purposes as any of the undersigned might or could do
in person, and we hereby ratify and confirm our signatures as they may be
signed by our said attorney-in-fact and agent to any and all such amendments
and instruments.
This Power of Attorney may be executed in multiple counterparts, each of
which shall be deemed an original, but which taken together shall constitute
one instrument.
May 21, 1998 /s/ I. Malcolm Burnett
---------------------------------
I. Malcolm Burnett
President, Chief Executive Officer and Director
May 21, 1998 /s/ James H. Cleave
---------------------------------
James H. Cleave
Director
May 21, 1998 /s/ Youssef A. Nasr
---------------------------------
Youssef A. Nasr
Director
May 21, 1998 /s/ Robert M. Butcher
---------------------------------
Robert M. Butcher
Executive Vice President and Chief
Financial Officer
May 21, 1998 /s/ Gerald A. Ronning
---------------------------------
Gerald A. Ronning
Executive Vice President and Controller
<PAGE> 1
Exhibit 25
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
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) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
HSBC AMERICAS, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 22-1093160
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
ONE MARINE MIDLAND CENTER
BUFFALO, NY 14203
(Address of principal executive offices)
DEBT SECURITIES
PREFERRED STOCK
(Title of the indenture securities)
<PAGE> 2
ITEM 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
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers. Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3. -15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment
of the Organization Certificate of Bankers Trust
Company dated June 21, 1995 - Incorporated herein by
reference to Exhibit 1 filed with Form T-1 Statement,
Registration No. 33-65171, Certificate of Amendment of
the Organization Certificate of Bankers Trust Company
dated March 20, 1996, incorporate by referenced to
Exhibit 1 filed with Form T-1 Statement, Registration
No. 333-25843 and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company
dated June 19, 1997, copy attached.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate
trust powers Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as
amended on November 18, 1997. Copy attached.
-2-
<PAGE> 3
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. Incorporated herein by
reference to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
EXHIBIT 7 - The latest report of condition of Bankers Trust
Company dated as of December 31, 1997. Copy attached.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, 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 18th day
of May, 1998.
BANKERS TRUST COMPANY
By: /s/ Marc Parilla
-------------------
Marc Parilla
Assistant Treasurer
-4-
<PAGE> 5
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION
8005 OF THE BANKING LAW," dated June 19, 1997, providing for an increase in
authorized capital stock from $1,601,666,670 consisting of 100,166,667 shares
with a par value of $10 each designated as Common Stock and 600 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$2,001,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 1,000 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of New
York,
this 27TH day of June in the Year of our Lord one thousand nine
hundred and NINETY-SEVEN.
/s/ Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE> 6
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into
One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 600 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
<PAGE> 7
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
19th day of June, 1997.
/s/ James T. Byrne, Jr.
--------------------------------------
James T. Byrne, Jr.
Managing Director
/s/ Lea Lahtinen
--------------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
)ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
--------------------------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
/s/ Sandra L. West
- ------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE> 8
BY-LAWS
NOVEMBER 18, 1997
BANKERS TRUST COMPANY
NEW YORK
<PAGE> 9
BY-LAWS
OF
BANKERS TRUST COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE> 10
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE> 11
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
<PAGE> 12
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
<PAGE> 13
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE> 14
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company,
<PAGE> 15
evidenced by a written communication signed by the Chairman of the Board, the
Chief Executive Officer or the President, and (ii) only if and to the extent
that, after making such efforts as the Chairman of the Board, the Chief
Executive Officer or the President shall deem adequate in the circumstances,
such person shall be unable to obtain indemnification from such other enterprise
or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE> 16
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE> 17
I, Marc Parilla, Assistant Secretary of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
/s/ Marc Parilla
--------------------
ASSISTANT SECRETARY
DATED: May 18, 1998
<PAGE> 18
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
--------------
|C400 |
--------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- -----------------------------------------------------------------------------------------------------------------
ASSETS | ///////////////////// |
<S> <C> <C> <C>
1. Cash and balances due from depository
institutions (from Schedule RC-A): | ///////////////////// |
a. Noninterest-bearing balances and
currency and coin (1) ................................. | 0081 1,458,000 |1.a.
b. Interest-bearing balances (2) ......................... | 0071 2,253,000 |1.b.
2. Securities: | ///////////////////// |
a. Held-to-maturity securities (from
Schedule RC-B, column A)............................... | 1754 0 |2.a.
b. Available-for-sale securities (from
Schedule RC-B, column D)............................... | 1773 6,444,000 |2.b.
3. Federal funds sold and securities
purchased under agreements to resell...................... | 1350 30,836,000 |3.
4. Loans and lease financing receivables: | ///////////////////// |
a. Loans and leases, net of unearned
income (from Schedule RC-C)...................RCFD 2122 19,993,000 | ///////////////////// |4.a.
b. LESS: Allowance for loan and
lease losses..................................RCFD 3123 647,000 | ///////////////////// |4.b.
c. LESS: Allocated transfer risk
reserve ......................................RCFD 3128 0 | ///////////////////// |4.c.
d. Loans and leases, net of unearned income, | ///////////////////// |
allowance, and reserve (item 4.a minus
4.b and 4.c) .......................................... | 2125 19,346,000 |4.d.
5. Trading Assets (from schedule RC-D) ..................... | 3545 45,690,000 |5.
6. Premises and fixed assets (including
capitalized leases) ...................................... | 2145 791,000 |6.
7. Other real estate owned (from Schedule
RC-M) .................................................... | 2150 184,000 |7.
8. Investments in unconsolidated subsidiaries
and associated companies (from Schedule RC-M)............. | 2130 104,000 |8.
9. Customers' liability to this bank on acceptances
outstanding .............................................. | 2155 542,000 |9.
10. Intangible assets (from Schedule RC-M) ................... | 2143 81,000 |10.
11. Other assets (from Schedule RC-F) ........................ | 2160 5,339,000 |11.
12. Total assets (sum of items 1 through 11) ................. | 2170 113,068,000 |12.
-------------------------------
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 19
<TABLE>
<CAPTION>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
SCHEDULE RC--CONTINUED -----------------------
Dollar Amounts in Thousands | ///////// Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
LIABILITIES | /////////////////////|
13. Deposits: | /////////////////////|
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON2200 26,465,000 |
(1) Noninterest-bearing(1) .............................RCON 6631 3,005,000.... | /////////////////////|
(2) Interest-bearing ...................................RCON 6636 23,460,000... | /////////////////////|
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | /////////////////////|
part II) | RCFN2200 21,993,000 |
(1) Noninterest-bearing ...............................RCFN 6631 1,712,000 | /////////////////////|
(2) Interest-bearing ..................................RCFN 6636 20,281,000 | /////////////////////|
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD2800 12,125,000 |
15. a. Demand notes issued to the U.S. Treasury .................................................... | RCON2840 0 |
b. Trading liabilities (from Schedule RC-D)..................................................... | RCFD3548 25,701,000 |
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): | /////////////////////|
a. With a remaining maturity of one year or less ............................................... | RCFD2332 6,773,000 |
b. With a remaining maturity of more than one year through three years.......................... | A547 3,754,000 |
c. With a remaining maturity of more than three years........................................... | A548 2,212,000 |
17. Not Applicable. | /////////////////////|
18. Bank's liability on acceptances executed and outstanding ......................................... | RCFD2920 542,000 |
19. Subordinated notes and debentures (2)............................................................. | RCFD3200 1,308,000 |
20. Other liabilities (from Schedule RC-G) ........................................................... | RCFD2930 6,135,000 |
21. Total liabilities (sum of items 13 through 20) ................................................... | RCFD2948 107,008,000 |
22. Not Applicable | /////////////////////|
| /////////////////////|
EQUITY CAPITAL | /////////////////////|
23. Perpetual preferred stock and related surplus .................................................... | RCFD3838 1,000,000 |
24. Common stock ..................................................................................... | RCFD3230 1,352,000 |
25. Surplus (exclude all surplus related to preferred stock) ......................................... | RCFD3839 544,000 |
26. a. Undivided profits and capital reserves ...................................................... | RCFD3632 3,583,000 |
b. Net unrealized holding gains (losses) on available-for-sale securities ...................... | RCFD8434 ( 41,000)|
27. Cumulative foreign currency translation adjustments .............................................. | RCFD3284 ( 378,000)|
28. Total equity capital (sum of items 23 through 27) ................................................ | RCFD3210 6,060,000 |
29. Total liabilities and equity capital (sum of items 21 and 28)..................................... | RCFD3300 113,068,000 |
------------------------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
------
auditors as of any date during 1997.............................................................| RCFD 6724 1 | M.]
-------------------------
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
</TABLE>
