<PAGE>
As filed with the Securities and Exchange Commission on May 6, 1994
REGISTRATION NO. 33-51615
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BANKERS TRUST NEW YORK CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW YORK (STATE OR OTHER 13-6180473 (I.R.S. EMPLOYER
JURISDICTION OF INCORPORATION OR IDENTIFICATION NUMBER)
ORGANIZATION)
280 PARK AVENUE NEW YORK, NEW YORK 10017 (212) 250-2500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
GORDON S. CALDER, JR., ESQ. JAMES J. BAECHLE, ESQ. BANKERS TRUST NEW YORK
CORPORATION 130 LIBERTY STREET NEW YORK, NEW YORK 10006 (212) 250-2500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH A COPY TO:
MICHAEL M. WISEMAN, ESQ. SULLIVAN & CROMWELL 125 BROAD STREET NEW YORK, NEW
YORK 10004
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this registration statement.
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, 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]
---------------
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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
PROSPECTUS ISSUE DATE: MAY 6, 1994
- ---------- U.S.$500,000,000
LOGO BANKERS TRUST NEW YORK CORPORATION
DEBT SECURITIES AND WARRANTS
Bankers Trust New York Corporation (the "Corporation") may offer from time to
time up to U.S.$500,000,000 aggregate public offering price (or net proceeds,
in the case of debt securities issued at an original issue discount), or its
equivalent (based on the applicable exchange rate at the time of offering) in
such foreign currencies, or units of two or more currencies, as shall be
designated by the Corporation at the time of offering, of one or more series of
debt securities (the "Debt Securities"); warrants entitling the holders thereof
to purchase Debt Securities or other debt obligations of the Corporation or
another issuer ("Warrant Debt Securities") (the "Debt Warrants"); warrants
entitling the holders thereof to receive from the Corporation, upon exercise,
an amount in cash determined by reference to decreases or increases in the
level of a specified stock or security index or the value of a specified stock
or other debt or equity security or a portfolio of specified stocks or other
debt or equity securities (which may, in each case, be based on U.S. or foreign
stocks or securities or a combination thereof) (the "Index Warrants"); warrants
entitling the holders thereof to receive from the Corporation, upon exercise,
the cash value of the right to purchase or to sell a specified amount of one
foreign currency or unit of two or more currencies for a specified amount of a
different currency or unit of two or more currencies, each as shall be
designated by the Corporation at the time of offering (the "Currency
Warrants"); and warrants entitling the holders thereof to receive from the
Corporation, upon exercise, an amount in cash determined by reference to
decreases or increases in the yield or closing price of one or more specified
debt instruments issued either by the United States government or by a foreign
government (each, a "Debt Instrument"), in the interest rate or interest rate
swap rate specified in the Prospectus Supplement relating to such warrants
(each, a "Rate"), or in any specified combination of Debt Instruments and/or
Rates (the "Interest Rate Warrants," and with the Debt Warrants, the Index
Warrants and the Currency Warrants, the "Warrants"). The Debt Securities may be
senior debt securities (the "Senior Debt Securities") or subordinated debt
securities (the "Subordinated Debt Securities"). Debt Securities and Warrants
(collectively, the "Offered Securities") will be offered on terms to be
determined at the time of offering.
Each issue of Debt Securities may vary as to aggregate principal or face
amount, maturity date, public offering or purchase price, interest rate or
rates, if any, and timing of payments thereof, provision for redemption, if
any, any terms of conversion or exchange, currencies of denomination or
currencies otherwise applicable thereto and any other terms and method of
distribution. Each issue of Warrants may vary as to number, purchase price,
exercise price and provisions, detachability and any other terms and method of
distribution. The accompanying Prospectus Supplement (the "Prospectus
Supplement") will set forth the specific terms with regard to the particular
Offered Securities in respect of which this Prospectus is being delivered.
The Offered Securities may be offered either separately or together as units
and may be sold by the Corporation directly or through agents or dealers. In
addition, the Offered Securities may be sold to or through underwriting
syndicates led by one or more managing underwriters or through one or more
underwriters acting alone pursuant to offering terms fixed at the time of
offering. The agents, dealers or underwriters in connection with the sale of
any Offered Securities will be set forth in the applicable Prospectus
Supplement.
The Senior Debt Securities, when issued, will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Corporation. The Subordinated
Debt Securities, when issued, will be unsecured and subordinated as described
herein under "Description of Debt Securities--Subordination of Subordinated
Debt Securities." Payment of the principal of the Subordinated Debt Securities
may be accelerated only in the case of certain events involving the bankruptcy,
insolvency or reorganization of the Corporation. There is no right of
acceleration of payment of Subordinated Debt Securities in the case of a
default in the performance of any covenant of the Corporation, including the
payment of principal or interest. See "Description of Debt Securities--Events
of Default--Subordinated Debt Securities."
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THE OFFERED SECURITIES WILL NOT BE DEPOSITS OR OTHER OBLIGATIONS OF A BANK
AND WILL NOT BE INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION
OR ANY OTHER GOVERNMENTAL AGENCY.
-----------
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. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May , 1994.
<PAGE>
FOR NORTH CAROLINA INVESTORS: THE COMMISSIONER OF INSURANCE OF THE STATE OF
NORTH CAROLINA HAS NOT APPROVED OR DISAPPROVED THIS OFFERING, NOR HAS THE
COMMISSIONER PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information concerning the Corporation can be inspected
and copied at the Commission's office at 450 Fifth Street, N.W., Washington,
D.C. 20549, and the Commission's Regional Offices in New York (Seven World
Trade Center, 13th Floor, New York, New York 10048) and Chicago (500 West
Madison Street, Suite 1400, Chicago, Illinois 60661), and copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, such material can be inspected at the offices of the New York Stock
Exchange and the American Stock Exchange on which certain securities of the
Corporation are listed. This Prospectus does not contain all of the information
set forth in the registration statement of which this Prospectus is a part (the
"Registration Statement") that the Corporation has filed with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), and to
which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation hereby incorporates by reference in this Prospectus the
following documents:
(a) The Corporation's Annual Report on Form 10-K (file number 1-5920) for
the year ended December 31, 1993, filed pursuant to Section 13 of the
Exchange Act; and
(b) The Corporation's Current Reports on Form 8-K (file number 1-5920)
dated January 20, March 21 and April 19, 1994, filed pursuant to Section 13
of the Exchange Act.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Offered Securities 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 in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein or in
any accompanying Prospectus Supplement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Any person who receives a copy of this Prospectus may obtain without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (unless such
exhibits are specifically incorporated by reference herein). Written requests
should be mailed to the Office of the Secretary, Bankers Trust New York
Corporation, 280 Park Avenue, New York, New York 10017. Telephone requests may
be directed to (212) 454-4022.
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE,
SUCH INFORMATION AND REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE CORPORATION. THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO
WHICH THEY RELATE OR AN OFFER TO ANY PERSON IN ANY JURISDICTION WHERE SUCH AN
OFFER WOULD BE UNLAWFUL OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO. NEITHER THE DELIVERY OF THIS PROSPECTUS
OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF OR THEREOF OR, IN THE CASE OF INFORMATION INCORPORATED HEREIN OR THEREIN
BY REFERENCE, THE DATE OF FILING WITH THE COMMISSION.
2
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BANKERS TRUST NEW YORK CORPORATION
GENERAL
The Corporation is a bank holding company incorporated under the laws of the
State of New York in 1965. At March 31, 1994, the Corporation had consolidated
total assets of $103.7 billion. The Corporation's principal banking subsidiary
is Bankers Trust Company ("Bankers"). Bankers, founded in 1903, is among the
largest commercial banks in New York City and the United States, based on
consolidated total assets. The Corporation concentrates its financial and
managerial resources on selected markets, and services its clients by meeting
their needs for financing, advisory, processing and sophisticated risk
management solutions. The core organizational units of the Corporation are the
Global Investment Bank, Global Markets Proprietary, Global Investment
Management, Global Emerging Markets and Global Assets. Other business
activities include real estate finance and principal investing. The Corporation
also conducts its own proprietary operations. Among the institutional market
segments served are corporations, banks, other financial institutions,
governments and agencies, retirement plans, not-for-profit organizations,
wealthy individuals, foundations, private companies and individual investors.
Bankers originates loans and other forms of credit, accepts deposits, arranges
financings and provides numerous other commercial banking and financial
services. Bankers also provides a broad range of financial advisory services to
its clients and engages in the proprietary trading of currencies, securities,
derivatives and commodities.
The Corporation is a legal entity separate and distinct from its
subsidiaries, including Bankers. There are various legal limitations governing
the extent to which the Corporation's banking subsidiaries may extend credit,
pay dividends or otherwise supply funds to, or engage in transactions with, the
Corporation or certain of its other subsidiaries. The rights of the Corporation
to participate in any distribution of assets of any subsidiary, including
Bankers, upon its dissolution, winding-up, liquidation or reorganization or
otherwise are subject to the prior claims of creditors of that subsidiary,
except to the extent that the Corporation is a creditor of that subsidiary and
its claims are recognized. Claims on the Corporation's subsidiaries by
creditors other than the Corporation include long-term debt and substantial
obligations with respect to deposit liabilities, securities sold, not yet
purchased, federal funds purchased, securities sold under repurchase agreements
and commercial paper, as well as various other liabilities.
The Corporation's principal executive offices are located at 280 Park Avenue,
New York, New York 10017, and its telephone number is (212) 250-2500.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED DECEMBER 31, ENDED
------------------------ MARCH 31,
1989 1990 1991 1992 1993 1994
---- ---- ---- ---- ---- ------------
<S> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits............ 0.67 1.30 1.40 1.44 1.71 1.34
Including Interest on Deposits............ 0.83 1.16 1.22 1.28 1.48 1.26
</TABLE>
For purposes of computing these consolidated ratios, earnings represent
income (loss) before income taxes, cumulative effects of accounting changes and
equity in undistributed income of unconsolidated subsidiaries and affiliates,
plus fixed charges excluding capitalized interest. Fixed charges represent all
interest expense (ratios are presented both excluding and including interest on
deposits), the portion of net rental expense that is deemed representative of
the interest factor, the amortization of debt issuance expense and capitalized
interest. For the year ended December 31, 1989, earnings, as defined, did not
cover fixed charges, excluding and including interest on deposits, by $834
million as a result of the 1989 special provision for refinancing country
credit losses of $1.6 billion.
3
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USE OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement, the net
proceeds from the sale of the Offered Securities will be used for general
corporate purposes, including investments in, or extensions of credit to, the
Corporation's subsidiaries. Except as described in the accompanying Prospectus
Supplement, specific allocations of the proceeds to such purposes have not been
made, although management will have determined at the date of the accompanying
Prospectus Supplement that funds should be borrowed at that time. The precise
amount and timing of such investments in, or extensions of credit to,
subsidiaries will depend on the subsidiaries' funding requirements and the
availability of other funds. A substantial portion of the net proceeds from the
sale of the Offered Securities may be used to hedge such Offered Securities by
entering into transactions such as currency forwards, futures and options on
futures, over-the-counter or exchange traded options, interest rate swaps,
options on certain interest rates and other transactions relating to the
currency, security, interest rate or index used to hedge the Corporation's
obligations in respect of the Offered Securities. Pending such applications,
such net proceeds may be temporarily invested or applied to the reduction of
short-term indebtedness.
DESCRIPTION OF DEBT SECURITIES
Senior Debt Securities may be issued from time to time in one or more series
under an Indenture, dated as of November 1, 1991, as amended by the First
Supplemental Indenture, dated as of September 1, 1993 (as so supplemented, the
"Senior Indenture"), between the Corporation and The Chase Manhattan Bank
(National Association), as Trustee (the "Senior Trustee"). Subordinated Debt
Securities may be issued from time to time in one or more series under either
an Indenture, dated as of April 1, 1992, as amended by the First Supplemental
Indenture, dated as of January 15, 1993 (as so supplemented, the "First
Subordinated Indenture"), between the Corporation and Marine Midland Bank, as
Trustee (the "First Subordinated Trustee"), or under an indenture (the "Second
Subordinated Indenture," and with the First Subordinated Indenture, the
"Subordinated Indentures"), to be entered into before the first issuance of
securities thereunder, between the Corporation and a trustee to be named in the
Prospectus Supplement applicable to the first series of Debt Securities to be
issued pursuant to such Indenture (the "Second Subordinated Trustee," and with
the First Subordinated Trustee, the "Subordinated Trustees"). The Senior
Indenture and the Subordinated Indentures are sometimes referred to
collectively as the "Indentures," and the Senior Trustee and the Subordinated
Trustees are sometimes referred to collectively as the "Trustees." As used
under this caption, unless the context otherwise requires, "debt securities" in
lower case refers to all debt securities issued or issuable, as the case may
be, under the Indentures, and "Debt Securities" refers to the Debt Securities
covered by this Prospectus and any accompanying Prospectus Supplement. The
statements under this caption are brief summaries of certain provisions
contained in the Indentures, do not purport to be complete, and are qualified
in their entirety by reference to the Indentures, including the definitions
therein of certain terms, copies of which are filed or incorporated by
reference as exhibits to the Registration Statement. The Debt Securities may be
offered either alone or together with other Debt Securities or Warrants.
GENERAL
Each Indenture provides for the issuance of debt securities in one or more
series, and does not limit the principal or face amount of debt securities that
may be issued thereunder.
Reference is made to the accompanying Prospectus Supplement for the following
terms of the Debt Securities being offered hereby: (1) the specific title of
the Debt Securities; (2) whether the Debt Securities are Senior Debt Securities
or Subordinated Debt Securities; (3) the aggregate principal amount of such
Debt Securities; (4) the percentage of their principal amount at which the Debt
Securities will be issued; (5) the date on which the Debt Securities will
mature; (6) whether the Debt Securities will bear interest and, if so, the rate
or rates per annum or the method for determining the rate or rates per annum at
which the Debt Securities will bear interest; (7) any index used to determine
the amount of principal of, and premium, if any,
4
<PAGE>
and interest, if any, on, the Debt Securities; (8) the time or times at which
any such principal, premium or interest will be payable; (9) any provisions
relating to optional or mandatory redemption of the Debt Securities; (10) the
denominations in which the Debt Securities are authorized to be issued; (11)
the place or places at which, the period or periods within which, the price or
prices at which and the terms and conditions, if any, upon which the Debt
Securities may be exchanged for or converted into other securities of the
Corporation, including capital securities; (12) the currency, or unit of two or
more currencies, in which the Debt Securities are denominated, if other than
U.S. dollars, and the currency, or unit of two or more currencies, in which
interest is payable if other than the currency in which the Debt Securities are
denominated; (13) the place or places at which the Corporation will make
payments of principal, premium, if any, and interest, if any, and the method of
such payment; (14) whether the Debt Securities will be issued, in whole or in
part, in the form of one or more Global Debt Securities (as hereinafter
defined) and, in such case, the depository for such Global Debt Security or
Global Debt Securities; (15) the person to whom any Debt Security of such
series will be payable, if other than the person in whose name that Debt
Security (or one or more Predecessor Securities (as defined in the applicable
Indenture)) is registered at the close of business on the Regular Record Date
(as defined in the applicable Indenture) for such interest; (16) the extent to
which, or the manner in which, any interest payable on a Global Debt Security
on an Interest Payment Date (as defined in the applicable Indenture) will be
paid; (17) any additional covenants and Events of Default (as defined in the
applicable Indenture) and the remedies with respect thereto not set forth in
the respective Indenture; and (18) any other specific terms of the Debt
Securities.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the accompanying Prospectus Supplement, the
Subordinated Debt Securities will be subject to the subordination provisions
set forth in the applicable Subordinated Indenture and described below.
The payment of the principal of, premium, if any, and interest on the
Subordinated Debt Securities will, to the extent set forth in the applicable
Subordinated Indenture, be subordinated in right of payment to the prior
payment in full of all Senior Indebtedness (as defined below). In certain
events of insolvency, the payment of the principal of, and premium, if any, and
interest on, the Subordinated Debt Securities will, to the extent set forth in
the applicable Subordinated Indenture, also be effectively subordinated in
right of payment to the prior payment in full of all Other Financial
Obligations (as defined below). Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshalling of assets or any
bankruptcy, insolvency or similar proceedings of the Corporation, the holders
of all Senior Indebtedness will first be entitled to receive payment in full of
all amounts due or to become due thereon before the holders of the Subordinated
Debt Securities will be entitled to receive any payment in respect of the
principal of, premium, if any, or interest on the Subordinated Debt Securities.
If upon any such payment or distribution of assets to creditors, there remain,
after giving effect to such subordination provisions in favor of the holders of
Senior Indebtedness, any amounts of cash, property or securities available for
payment or distribution in respect of Subordinated Debt Securities (as defined
in each Subordinated Indenture, "Excess Proceeds") and if, at such time, any
persons entitled to payment in respect of Other Financial Obligations have not
received payment in full of all amounts due or to become due on or in respect
of such Other Financial Obligations, then such Excess Proceeds will first be
applied to pay or provide for the payment in full of such Other Financial
Obligations before any payment or distribution may be made in respect of the
Subordinated Debt Securities. In the event of the acceleration of the maturity
of any Subordinated Debt Securities, the holders of all Senior Indebtedness
will first be entitled to receive payment in full of all amounts due thereon
before the holders of the Subordinated Debt Securities will be entitled to
receive any payment upon the principal of, premium, if any, or interest on the
Subordinated Debt Securities. No payments on account of principal of, premium,
if any, or interest on the Subordinated Debt Securities or on account of the
purchase or acquisition of Subordinated Debt Securities may be made if there
has occurred and is continuing a default in any payment with respect to Senior
Indebtedness, or if any judicial proceeding is pending with respect to any such
default.
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By reason of such subordination in favor of the holders of Senior
Indebtedness, in the event of insolvency, creditors of the Corporation who hold
obligations other than Senior Indebtedness and the Subordinated Debt Securities
may recover less in respect of such obligations, ratably, than holders of
Senior Indebtedness and may recover more in respect of such obligations,
ratably, than the holders of the Subordinated Debt Securities. By reason of the
obligation of the holders of the Subordinated Debt Securities to pay over any
Excess Proceeds to persons entitled to payment in respect of Other Financial
Obligations, in the event of insolvency, holders of Existing Subordinated
Indebtedness (as defined in the applicable Indenture) that are not required to
pay over Excess Proceeds may recover less, ratably, than persons entitled to
payment in respect of Other Financial Obligations and may recover more,
ratably, than the holders of Subordinated Debt Securities.
"Senior Indebtedness," unless otherwise specified with respect to any series
of debt securities, is defined in each Subordinated Indenture as the principal
of, premium, if any, and interest (including interest accruing subsequent to
the commencement of any proceeding for the bankruptcy or reorganization of the
Corporation) on (a) all indebtedness for money borrowed, whether outstanding on
the date of execution of such Subordinated Indenture or thereafter created,
assumed or incurred, except such indebtedness as is by its terms expressly
stated to be not superior in right of payment to the Subordinated Debt
Securities issued under such Subordinated Indenture or to rank pari passu with
such Subordinated Debt Securities or is identified in a Board Resolution or any
indenture supplemental to such Subordinated Indenture as not superior in right
of payment or to rank pari passu with such Subordinated Debt Securities and (b)
any deferrals, renewals or extensions of any such indebtedness for money
borrowed. Senior Indebtedness does not, however, include any obligations on
account of Existing Subordinated Indebtedness (as defined below). The term
"indebtedness for money borrowed," unless otherwise specified with respect to
any series of debt securities, is defined to mean 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, and any deferred obligation for the payment of the purchase price
of property or assets.
"Existing Subordinated Indebtedness" means, unless otherwise specified with
respect to any series of debt securities, the Corporation's 6.00% Subordinated
Notes due October 15, 2008, 7.50% Convertible Capital Securities due 2033,
Subordinated LIBOR/CMT Floating Rate Debentures due 2003, 7 5/8% Convertible
Capital Securities due 2033, Subordinated Floating Rate Notes due 2005,
Subordinated Constant Maturity Treasury Floating Rate Debentures due 2003,
7.25% Subordinated Debentures due January 15, 2003, Subordinated Floating Rate
Notes due 2002, 7 1/8% Subordinated Debentures due July 31, 2002, 8 1/8%
Subordinated Debentures due May 15, 2002, 7.50% Subordinated Debentures due
January 15, 2002, 9.00% Subordinated Debentures due August 1, 2001, 9.40%
Subordinated Debentures due March 1, 2001, 9.50% Subordinated Debentures due
June 14, 2000, Zero Coupon Subordinated Yen Notes due 1997-2004, 10.20%
Subordinated Debentures due March 15, 1999, 9.20% Subordinated Capital Notes
due July 15, 1999, Subordinated Money Market Capital Notes, Series A, B and C
due 1999, 8% Subordinated Debentures due March 15, 1997, 8 1/4% Subordinated
Debentures due July 2, 1996, and the Corporation's guaranty in respect of the
6.90% Subordinated Notes due March 1, 1995 of Bankers and such other
indebtedness as may be specified in the accompanying Prospectus Supplement.
"Other Financial Obligations" means, unless otherwise specified with respect
to any series of debt securities, all obligations of the Corporation to make
payment pursuant to the terms of financial instruments, such as (i) securities
contracts and foreign currency exchange contracts, (ii) derivative instruments,
such as swap agreements (including interest rate and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar agreements, interest rate
agreements, foreign exchange rate agreements, options, commodity futures
contracts, commodity option contracts, and (iii) in the case of both (i) and
(ii) above, similar financial instruments, other than (A) obligations on
account of Senior Indebtedness and (B) obligations on account of indebtedness
for money borrowed ranking pari passu with or subordinate to the Subordinated
Debt Securities.
The Corporation's obligations under the Subordinated Debt Securities will
rank pari passu in right of payment with each other and with the Existing
Subordinated Indebtedness, subject to the obligations of the
6
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holders of Subordinated Debt Securities to pay over any Excess Proceeds to
persons entitled to payment in respect of Other Financial Obligations as
provided in the applicable Subordinated Indenture.
As of March 31, 1994, Senior Indebtedness and Other Financial Obligations of
the Corporation aggregated approximately $12.0 billion.
The Subordinated Indentures do not limit or prohibit the incurrence of
additional Senior Indebtedness and Other Financial Obligations, which may
include indebtedness that is senior to the Subordinated Debt Securities but
subordinate to other obligations of the Corporation, including obligations of
the Corporation in respect of Other Financial Obligations.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive or global form.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities will be issued in the form of Global Securities (as defined below)
held in book-entry form. See "Book-Entry Securities" below.
Debt Securities may be presented for registration of transfer (with the form
of transfer printed thereon duly executed) at the office of the Security
Registrar (as defined in the applicable Indenture), or at the office of any
transfer agent designated by the Corporation for such purpose with respect to
any series of Debt Securities and referred to in the applicable Prospectus
Supplement, without service charge and upon payment of any taxes and other
governmental charges as described in the applicable Indenture. Such transfer or
exchange will be effected upon the Security Registrar or such transfer agent,
as the case may be, being satisfied with the documents of title and identity of
the person making the request. The Corporation has appointed Bankers as
Security Registrar with respect to both the Senior Debt Securities and the
Subordinated Debt Securities. If a Prospectus Supplement refers to any transfer
agents (in addition to the Security Registrar) initially designated by the
Corporation with respect to any series of Debt Securities, the Corporation may
at any time rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts, except that
the Corporation will be required to maintain a transfer agent in each Place of
Payment (as defined in the applicable Indenture) for such series. The
Corporation may at any time designate additional transfer agents with respect
to any series of Debt Securities.
In the event of any redemption in part, the Corporation shall not be required
to (i) issue, register the transfer of or exchange any Debt Security during a
period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption of Debt Securities of like tenor and of the series of
which such Debt Security is a part, and ending at the close of business on the
earliest date in which the relevant notice of redemption is deemed to have been
given to all holders of Debt Securities of like tenor and of such series to be
redeemed or (ii) register the transfer of or exchange any Debt Security so
selected for redemption, in whole or in part, except the unredeemed portion of
any Debt Security being redeemed in part.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and premium, if any, on any Debt Security will be made only
against surrender to the Paying Agent (as defined in the applicable Indenture)
of such Debt Security. Unless otherwise indicated in the applicable Prospectus
Supplement, principal of, premium, if any, and interest on Debt Securities will
be payable, subject to any applicable laws and regulations, at the office of
such Paying Agent or Paying Agents as the Corporation may designate from time
to time, except that at the option of the Corporation payment of any interest
may be made by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register (as defined in the
applicable Indenture) with respect to such Debt Securities. Unless otherwise
indicated in an applicable Prospectus Supplement, payment of interest on a Debt
Security on any Interest Payment Date (as defined in the applicable Indenture)
will be made to the person in whose name such Debt
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Security (or Predecessor Security) is registered at the close of business on
the Regular Record Date for such interest.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporate Trust Office (as defined in the applicable Indenture) of Bankers in
The City of New York will be designated as the Corporation's sole Paying Agent
for payments with respect to Debt Securities of each series. Any Paying Agents
outside of the United States and any other Paying Agents in the United States
initially designated by the Corporation for the Debt Securities of any series
will be named in the applicable Prospectus Supplement. The Corporation may at
any time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that the Corporation will be required to maintain a Paying Agent
in each Place of Payment for each series of Debt Securities.
All moneys paid by the Corporation to a Paying Agent for the payment of the
principal of, premium, if any, or interest on any Debt Security of any series
and that remain unclaimed at the end of two years after such principal,
premium, if any, or interest shall have become due and payable will be repaid
to the Corporation and the holder of such Debt Security must thereafter look
only to the Corporation for payment of such amounts.
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions that permit the Corporation and the
applicable Trustee, with the consent of the holders of not less than 66 2/3% in
principal amount of the debt securities that are affected by the modification,
to modify the particular Indenture or any supplemental indenture or the rights
of the holders of the debt securities issued under such Indenture. However, no
such modification may, without the consent of the holder of each outstanding
debt security affected thereby, (a) change the stated maturity date of the
principal of, or any installment of principal of or interest on, any such debt
security, (b) reduce the principal amount of, or premium or rate of interest
on, any such debt security, (c) reduce the amount of principal of an original
issue discount debt security payable upon acceleration of the maturity thereof,
(d) change the place or currency of payment of principal of, or premium or
interest on, any such debt security, (e) impair the right to institute suit for
the enforcement of any payment on or with respect to any such debt security, or
(f) reduce the percentage in principal amount of Outstanding Debt Securities
(as defined in such Indenture) of any series the consent of whose holders is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of such Indenture or for waiver of certain
defaults.
EVENTS OF DEFAULT
Senior Debt Securities. An Event of Default with respect to Senior Debt
Securities of any series is defined in the Senior Indenture as being: default
for 30 days in payment of any interest on Senior Debt Securities of such
series; default in payment of principal of, or premium, if any, on, Senior Debt
Securities of such series; default for 30 days in payment of any mandatory
sinking fund payment required by the Senior Debt Securities of such series;
default for 90 days after notice in performance of any other covenant in the
Senior Debt Securities of such series or in the Senior Indenture; or certain
events of bankruptcy, insolvency or reorganization. If an Event of Default with
respect to Senior Debt Securities of any series occurs and is continuing, the
Senior Trustee or the holders of not less than 25% in principal or face amount
of the Senior Debt Securities of such series then outstanding may declare the
principal of all such Senior Debt Securities to be due and payable. The
Corporation is required to furnish to the Senior Trustee annually a statement
as to the performance by the Corporation of its obligations under the Senior
Indenture and as to any default in such performance. Under certain
circumstances, any declaration of acceleration with respect to Senior Debt
Securities of any series may be rescinded and past defaults (except, unless
theretofore cured, a default in the payment of principal of, premium, if any,
or interest on the Senior Debt Securities) may be waived by the holders of a
majority in aggregate principal amount of the Senior Debt Securities of such
series then outstanding. The Senior Trustee may withhold notice to the holders
of Senior Debt Securities of any series of
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any continuing default (except in the payment of the principal of, or premium,
if any, or interest on any Senior Debt Securities of such series or in the
payment of any sinking fund installment) if the Senior Trustee considers it in
the interest of holders of such series of Senior Debt Securities to do so.
Subordinated Debt Securities. An Event of Default with respect to
Subordinated Debt Securities of any series is defined in each Subordinated
Indenture as being one of certain events involving a bankruptcy, insolvency or
reorganization of the Corporation. If an Event of Default with respect to
Subordinated Debt Securities of any series shall have occurred and be
continuing, either the applicable Subordinated Trustee or the holders of not
less than 25% in aggregate principal or face amount of the Subordinated Debt
Securities of such series then outstanding may declare the principal of such
Subordinated Debt Securities to be due and payable immediately. The Corporation
is required to furnish to each Subordinated Trustee annually a statement as to
the performance by the Corporation of its obligations under the applicable
Subordinated Indenture and as to any default in such performance. Under certain
circumstances, any declaration of acceleration with respect to Subordinated
Debt Securities of any series may be rescinded and past defaults (except,
unless theretofore cured, a default in the payment of principal of, premium, if
any, or interest on such Subordinated Debt Securities) may be waived by the
holders of a majority in aggregate principal amount of the Subordinated Debt
Securities of such series then outstanding. Each Subordinated Trustee may
withhold notice to the holders of the Subordinated Debt Securities of any
series issued under the applicable Indenture of any continuing default (except
in the payment of the principal of, or premium, if any, or interest on any
Subordinated Debt Securities of such series or in the payment of any sinking
fund installment) if such Subordinated Trustee considers it in the interest of
the holders of such series of Subordinated Debt Securities to do so.
The Subordinated Indentures do not provide for any right of acceleration of
the payment of the principal of a series of Subordinated Debt Securities upon a
default in the payment of principal, premium, if any, or interest or a default
in the performance of any covenant or agreement in the Subordinated Debt
Securities of the particular series or in the Subordinated Indenture. In the
event of a default in the payment of interest, principal or premium, if any,
the holder of a Subordinated Debt Security (or the Subordinated Trustee on
behalf of the holders of all of the series of Subordinated Debt Securities
affected) may, subject to certain limitations and conditions, seek to enforce
payment of such interest, principal or premium, if any.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Corporation has covenanted in the Indentures that it will not merge or
consolidate with any other corporation or sell or convey all or substantially
all of its assets to any person, firm or corporation unless the Corporation is
the continuing corporation, or the successor corporation is a corporation
organized under the laws of the United States of America or a state thereof and
such corporation expressly assumes the obligations under any outstanding debt
securities and the respective Indentures and the Corporation or such successor
corporation is not, immediately after such merger, consolidation, sale or
conveyance, in default in the performance of any of the covenants or conditions
of the respective Indentures. The Indentures do not contain any other covenant
that restricts the Corporation's ability to merge or consolidate with any other
corporation, sell or convey all or substantially all of its assets to any
person, firm or corporation or otherwise engage in restructuring transactions.
Further, the Indentures do not contain any provisions that would provide
protection to holders of Debt Securities against a sudden and dramatic decline
in credit quality resulting from a takeover, recapitalization or similar
restructuring of the Corporation.
TITLE
The Corporation, the Trustees and any agent of the Corporation or the
relevant Trustee may treat the registered owner of any Debt Security as the
absolute owner thereof (whether or not such Debt Security shall be overdue and
notwithstanding any notice to the contrary) for the purpose of making payment
and for all other purposes.
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REPLACEMENT OF DEBT SECURITIES
Any mutilated Debt Security will be replaced by the Corporation at the
expense of the holder upon surrender of such Debt Security to the Trustee. Debt
Securities that are destroyed, lost or stolen will be replaced by the
Corporation at the expense of the holder upon delivery to the relevant Trustee
of evidence of the destruction, loss or theft thereof satisfactory to the
Corporation and the relevant Trustee. In the case of a destroyed, lost or
stolen Debt Security, an indemnity satisfactory to the relevant Trustee and the
Corporation may be required at the expense of the holder of such Debt Security
before a replacement Debt Security will be issued.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
INFORMATION CONCERNING THE TRUSTEES
Subject to the provisions of the relevant Indenture relating to its duties,
each Trustee will be under no obligation to exercise any of its rights or
powers under such Indenture at the request, order or direction of any of the
holders of debt securities issued thereunder, unless such holders have offered
to such Trustee reasonable indemnity. Subject to such provision for
indemnification, the holders of a majority in principal amount of the debt
securities then outstanding thereunder will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee under the relevant Indenture, or exercising any trust or power
conferred on such Trustee.
Senior Trustee. Bankers serves as trustee under various indentures for The
Chase Manhattan Corporation, parent company of the Senior Trustee. The Senior
Trustee also serves as trustee under another indenture with the Corporation
relating to other issues of its debt securities. In addition, the Corporation
and Bankers have other relationships arising in the ordinary course of business
with the Senior Trustee.
First Subordinated Trustee. Bankers serves as trustee under an indenture for
an affiliate of the First Subordinated Trustee. In addition, the Corporation
and Bankers have other relationships arising in the ordinary course of business
with the First Subordinated Trustee.
Second Subordinated Trustee. The Second Subordinated Trustee will be named in
the Prospectus Supplement relating to the first series of Subordinated Debt
Securities issued under the Second Subordinated Indenture.
DESCRIPTION OF WARRANTS
The Corporation may issue from time to time, either together with Debt
Securities or other Warrants or separately, one or more series of Debt
Warrants, Currency Warrants, Index Warrants or Interest Rate Warrants. The
Warrants are to be issued under separate warrant agreements (each, a "Warrant
Agreement") to be entered into between the Corporation and a bank or trust
company, as warrant agent (each, a "Warrant Agent"), all as will be set forth
in the applicable Prospectus Supplement. Copies of the forms of Warrant
Agreements relating to Debt Warrants, Currency Warrants, Index Warrants, and
Interest Rate Warrants, including the forms of global certificates representing
such Warrants (the "Warrant Certificates"), are filed as exhibits to the
Registration Statement and incorporated herein by reference. The statements
under this caption are brief summaries of certain provisions contained in the
Warrant Agreements, do not purport to be complete, and are qualified in their
entirety by reference to the forms of such agreements, including the
definitions therein of certain terms, copies of which are filed or incorporated
by reference as exhibits to the Registration Statement.
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DESCRIPTION OF DEBT WARRANTS
General. Unless otherwise specified in the applicable Prospectus Supplement,
each Debt Warrant will entitle the holder of such Warrant to purchase for cash
the principal or face amount of Warrant Debt Securities at the exercise price
set forth in, or determined as set forth in, the applicable Prospectus
Supplement. Unless earlier terminated or cancelled, Debt Warrants may be
exercised at any time up to the close of business on the expiration date set
forth in the applicable Prospectus Supplement. After the close of business on
such expiration date (or such later date to which such expiration date may be
extended by the Corporation), unexercised Debt Warrants will become void.
The applicable Prospectus Supplement will describe the terms of the Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the Warrant Certificates representing such Debt Warrants, including the
following: (1) the title of such Debt Warrants; (2) the aggregate number of
such issue of Debt Warrants; (3) the initial offering price of such Debt
Warrants; (4) the designation, aggregate face or principal amount, aggregate
price at which such principal or face amount may be purchased upon exercise,
and terms of the Warrant Debt Securities purchasable upon exercise of such Debt
Warrants, including, in the case of Debt Warrants exercisable for Debt
Securities, whether such Debt Securities are Senior Debt Securities or
Subordinated Debt Securities; (5) the circumstances, if any, in which the
exercise price of such Debt Warrants may change; (6) the principal or face
amount of Warrant Debt Securities purchasable upon exercise of each such Debt
Warrant and the price at which such face or principal amount of Warrant Debt
Securities may be purchased upon such exercise; (7) the currency, or unit of
two or more currencies, in which the initial offering price and/or the exercise
price of such Debt Warrants is payable; (8) the minimum number, if any, of such
Debt Warrants that must be exercised at any one time, other than upon automatic
exercise, if any; (9) the maximum number, if any, of such Debt Warrants that
may, subject to election by the Corporation, be exercised by all owners (or by
any person or entity) on any day; (10) any provisions for the automatic
exercise of such Debt Warrants; (11) whether and under what circumstances such
Debt Warrants may be cancelled by the Corporation prior to expiration; (12) any
other procedures and conditions relating to the exercise of such Debt Warrants;
(13) if applicable, the designation and terms of any related Debt Securities or
other Warrants with which such Debt Warrants are issued, including whether such
Debt Securities are Senior Debt Securities or Subordinated Debt Securities and
whether such other Warrants are Debt Warrants, Currency Warrants, Index
Warrants or Interest Rate Warrants, and the number of such Debt Warrants issued
with each such Debt Security or other Warrant; (14) the date, if any, on and
after which such Debt Warrants and any related Debt Securities or other
Warrants will be separately transferable; (15) the date on which the right to
exercise such Debt Warrants will commence and the date on which such right will
expire; (16) the identity of the Warrant Agent under the applicable Warrant
Agreement; (17) any national securities exchange on which such Debt Warrants
will be listed; and (18) any other terms of such Debt Warrants.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Warrants will be issued in the form of Global Securities held in book-entry
form. See "Book-Entry Securities" below.
Exercise of Debt Warrants. Debt Warrants may be exercised in the manner set
forth in the applicable Prospectus Supplement. Unless otherwise specified in
the applicable Prospectus Supplement, in the case of Debt Warrants held in
book-entry form, as described under "Book-Entry Securities" below, upon receipt
by the Warrant Agent of payment of the exercise price and notice of exercise
and delivery of the applicable Debt Warrants to the account of the Corporation
free on the books of DTC (as defined below), the Corporation will, as soon as
practicable, forward to the holder of such Debt Warrants the Warrant Debt
Securities purchasable upon such exercise. In the case of Debt Warrants held in
definitive form, the Corporation will make available to the Warrant Agent the
Warrant Debt Securities purchasable upon such exercise for delivery to the
holders of such Debt Warrants as soon as practicable upon receipt of payment of
the exercise price and the Warrant Certificate properly completed and duly
executed at the corporate trust office of the applicable Warrant Agent or any
other office indicated in the applicable Prospectus Supplement. If fewer
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than all of the Debt Warrants represented by such Warrant Certificate are
exercised, a new Warrant Certificate will be issued for the remaining number of
Debt Warrants.
Before the exercise of their Debt Warrants, holders of Debt Warrants will not
have any of the rights of holders of the Warrant Debt Securities purchasable
upon such exercise, will not be entitled to payments of principal of, premium,
if any, or interest on, the Warrant Debt Securities purchasable upon such
exercise, and will not have the right to enforce any of the covenants in the
Indenture applicable to such Warrant Debt Securities.
Other Information. Other important information regarding the Debt Warrants is
set forth below under "--Certain Items Applicable to All Warrants" and under
"Book-Entry Securities," "United States Taxation" and "Foreign Currency Risks."
DESCRIPTION OF CURRENCY WARRANTS
General. Currency Warrants may be issued in the form of (i) Currency Warrants
("Currency Put Warrants") entitling the holders thereof to receive from the
Corporation upon exercise the cash settlement value of the right to sell a
specified amount of one foreign currency, or unit of two or more currencies
(the "Base Currency"), for a specified amount of another foreign currency, or
unit of two or more currencies (the "Reference Currency"), (ii) Currency
Warrants ("Currency Call Warrants") entitling the holders thereof to receive
from the Corporation upon exercise the cash settlement value of the right to
purchase a specified amount of a Base Currency for a specified amount of a
Reference Currency, or (iii) any combination of the foregoing.
Unless otherwise provided in the applicable Prospectus Supplement, each
Currency Warrant will entitle the holder thereof to receive from the
Corporation upon exercise the cash settlement value of such Currency Warrant.
Unless earlier terminated or cancelled, Currency Warrants may be exercised at
any time up to the close of business on the expiration date set forth in the
applicable Prospectus Supplement. Certain Currency Warrants will, if specified
in the applicable Prospectus Supplement, entitle the holders thereof to receive
from the Corporation a certain amount upon cancellation of the Currency
Warrants by the Corporation upon the occurrence of specified events. If
specified in the applicable Prospectus Supplement, the Currency Warrants will
be deemed automatically exercised if not exercised by the holder thereof on or
before the expiration date of such Warrants (or such other date as is specified
in the applicable Prospectus Supplement). In addition, if so specified in the
applicable Prospectus Supplement, following the occurrence of an Extraordinary
Event (as defined in the applicable Prospectus Supplement), the cash settlement
value of a Currency Warrant may, at the option of the Corporation, be
determined on a different basis, including in connection with automatic
exercise at expiration.
The applicable Prospectus Supplement will describe the terms of the Currency
Warrants offered thereby, the Warrant Agreement relating to such Currency
Warrants and the Warrant Certificates representing such Currency Warrants,
including the following: (1) the title of such Currency Warrants; (2) whether
such Currency Warrants shall be Currency Put Warrants, Currency Call Warrants,
or any combination thereof; (3) the aggregate number of such issue of Currency
Warrants; (4) the initial offering price of such Currency Warrants; (5) the
exercise price, if any, of such Currency Warrants; (6) the currency, or unit of
two or more currencies, in which the initial offering price, the exercise
price, if any, and/or the cash settlement value of such Currency Warrants is
payable; (7) the Base Currency and Reference Currency for such Currency
Warrants; (8) the formula for determining the cash settlement value of such
Currency Warrants; (9) the circumstances, if any, in which the exercise price,
if any, or the formula for determining the cash settlement value may change;
(10) whether and under what circumstances a maximum expiration value is
applicable upon the expiration or exercise of such Currency Warrants; (11) the
effect or effects, if any, of the occurrence of an Extraordinary Event; (12)
the minimum number, if any, of such Currency Warrants that must be exercised at
any one time, other than upon automatic exercise, if any; (13) the maximum
number, if any, of
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such Currency Warrants that may, subject to election by the Corporation, be
exercised by all owners (or by any person or entity) on any day; (14) any
provisions for the automatic exercise of such Currency Warrants; (15) whether
and under what circumstances such Currency Warrants may be cancelled by the
Corporation prior to expiration; (16) any provisions permitting a holder of
such Currency Warrants to condition any notice of exercise on the absence of
certain specified changes in the values or relative values of the Base Currency
or Reference Currency after the date of exercise; (17) any other procedures and
conditions relating to the exercise of such Currency Warrants; (18) if
applicable, the designation and terms of any related Debt Securities or other
Warrants with which such Currency Warrants are issued, including whether such
Debt Securities are Senior Debt Securities or Subordinated Debt Securities and
whether such other Warrants are Debt Warrants, Currency Warrants, Index
Warrants or Interest Rate Warrants, and the number of such Currency Warrants
issued with each such Debt Security or other Warrant; (19) the date, if any, on
and after which such Currency Warrants and any related Debt Securities or other
Warrants will be separately transferable; (20) the date on which the right to
exercise such Currency Warrants will commence and the date on which such right
will expire; (21) the identity of the Warrant Agent under the applicable
Warrant Agreement; (22) any national securities exchange on which such Currency
Warrants will be listed; and (23) any other terms of such Currency Warrants.
Unless otherwise specified in the applicable Prospectus Supplement, Currency
Warrants will be issued in the form of Global Securities held in book-entry
form. See "Book-Entry Securities" below.
Unless otherwise specified in the applicable Prospectus Supplement, the cash
settlement value (and, if applicable, the amount payable on cancellation) of
the Currency Warrants will be payable in U.S. dollars.
Exercise of Currency Warrants. Currency Warrants may be exercised in the
manner set forth in the applicable Prospectus Supplement. Unless otherwise
specified in the applicable Prospectus Supplement, in the case of Currency
Warrants held in book-entry form, as described under "Book-Entry Securities"
below, upon receipt by the Warrant Agent of payment of the exercise price, if
any, and notice of exercise and delivery of the applicable Currency Warrants to
the account of the Corporation free on the books of DTC, the Corporation will,
as soon as practicable, make payment of the applicable amounts to the account
of the holder of such Currency Warrants specified in the applicable notice of
exercise. In the case of Currency Warrants held in definitive form, the
Corporation will make adequate funds available to the Warrant Agent to make
such payment upon such exercise as soon as practicable upon receipt of payment
of the exercise price, if any, and the applicable Warrant Certificate properly
completed and duly executed at the corporate trust office of the applicable
Warrant Agent or any other office indicated in the applicable Prospectus
Supplement. If fewer than all of the Currency Warrants represented by such
Warrant Certificate are exercised, a new Warrant Certificate will be issued for
the remaining number of Currency Warrants. The holders of Currency Warrants
will not receive any interest on any cash settlement value or amount payable on
cancellation of the Currency Warrants.
Extraordinary Events. If so specified in the applicable Prospectus
Supplement, following the occurrence of an Extraordinary Event, Currency
Warrants may be cancelled by the Corporation, the cash settlement value of such
Currency Warrants may be determined on a different basis than under normal
circumstances, or the exercise or valuation of, or payment for, such Currency
Warrants may be delayed or postponed. Upon cancellation, the holders of such
Currency Warrants will be entitled to receive only the applicable amount
payable on cancellation specified in such Prospectus Supplement. The amount
payable on cancellation may be either a fixed amount or an amount that varies
during the term of the Currency Warrants in accordance with a schedule or
formula as specified in the applicable Prospectus Supplement.
Other Information. Other important information regarding the Currency
Warrants is set forth below under "--Certain Items Applicable to All Warrants"
and under "Book-Entry Securities," "United States Taxation" and "Foreign
Currency Risks."
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DESCRIPTION OF INDEX WARRANTS
General. Index Warrants may be issued in the form of (i) Index Warrants
("Index Put Warrants") entitling the holders thereof to receive from the
Corporation upon exercise an amount in cash determined by reference to
decreases in the level of a specified stock or security index or the value of a
specified stock or other debt or equity security or a portfolio of specified
stocks or other debt or equity securities (the "Index"), (ii) Index Warrants
("Index Call Warrants") entitling the holders thereof to receive from the
Corporation upon exercise an amount in cash determined by reference to
increases in the specified Index, or (iii) any combination of the foregoing.
The Index may be composed of one or more U.S. or foreign stocks, bonds or other
debt or equity securities or a combination thereof (the "Underlying
Securities"), and may be a preexisting U.S. or foreign index compiled and
published by a third party or an index based on one or more such securities
selected by the Corporation solely in connection with the issuance of such
Index Warrants. An Index Warrant will not require or entitle the holder thereof
to purchase or take delivery of or sell or make delivery of any securities
(including Underlying Securities), nor will the Corporation be under any
obligation to, nor will it, purchase or take delivery of or sell or make
delivery of any securities (including Underlying Securities) from or to holders
of the Index Warrants pursuant to the Index Warrants.
Unless otherwise provided in the applicable Prospectus Supplement, each Index
Warrant will entitle the holder thereof to receive from the Corporation upon
exercise the cash settlement value of such Index Warrant. Unless earlier
terminated or cancelled, Index Warrants may be exercised at any time up to the
close of business on the expiration date set forth in the applicable Prospectus
Supplement. Certain Index Warrants will, if specified in the applicable
Prospectus Supplement, entitle the holders thereof to receive from the
Corporation a certain amount upon cancellation of the Index Warrants by the
Corporation upon the occurrence of specified events. If specified in the
applicable Prospectus Supplement, the Index Warrants may be deemed
automatically exercised if not exercised by the holder thereof on or before the
expiration date of such Warrants (or such other date as is specified in the
applicable Prospectus Supplement). In addition, if so specified in the
applicable Prospectus Supplement, following the occurrence of an Extraordinary
Event (as defined in the applicable Prospectus Supplement), the cash settlement
value of an Index Warrant may, at the option of the Corporation, be determined
on a different basis, including in connection with automatic exercise at
expiration.
The applicable Prospectus Supplement will describe the terms of the Index
Warrants offered thereby, the Warrant Agreement relating to such Index Warrants
and the Warrant Certificates representing such Index Warrants, including the
following: (1) the title of such Index Warrants; (2) whether such Index
Warrants shall be Index Put Warrants, Index Call Warrants, or any combination
thereof; (3) the aggregate number of such issue of Index Warrants; (4) the
initial offering price of such Index Warrants; (5) the exercise price, if any,
of such Index Warrants; (6) the currency, or unit of two or more currencies, in
which the initial offering price, the exercise price, if any, and/or the cash
settlement value of such Index Warrants is payable; (7) the Index or Indices
for such Index Warrants, and certain information relating to such Index or
Indices and the Underlying Securities, including, to the extent possible, the
policies of the publisher of the Index, if any, with respect to additions,
deletions and substitutions of such Underlying Securities; (8) the method of
providing for a substitute Index or Indices or otherwise determining any amount
payable with respect to such Index Warrants if any Index changes or ceases to
be made available by its publisher; (9) the formula for determining the cash
settlement value of such Index Warrants; (10) the circumstances, if any, in
which the exercise price, if any, or the formula for determining the cash
settlement value may change; (11) whether and under what circumstances a
maximum expiration value is applicable upon the expiration or exercise of such
Index Warrants; (12) the effect or effects, if any, of the occurrence of an
Extraordinary Event; (13) the minimum number, if any, of such Index Warrants
that must be exercised at any one time, other than upon automatic exercise, if
any; (14) the maximum number, if any, of such Index Warrants that may be
exercised by all owners (or by any person or entity) on any day; (15) any
provisions for the automatic exercise of such Index Warrants; (16) whether and
under what circumstances such Index Warrants may be cancelled by the
Corporation prior to expiration; (17) any provisions permitting a holder of
such Index Warrants to condition any notice of exercise on the absence of
certain specified changes in the value of the Index after the date of
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exercise; (18) any other procedures and conditions relating to the exercise of
such Index Warrants; (19) if applicable, the designation and terms of any
related Debt Securities or other Warrants with which such Index Warrants are
issued, including whether such Debt Securities are Senior Debt Securities or
Subordinated Debt Securities and whether such other Warrants are Debt Warrants,
Currency Warrants, Index Warrants or Interest Rate Warrants, and the number of
such Index Warrants issued with each such Debt Security or other Warrant; (20)
the date, if any, on and after which such Index Warrants and any related Debt
Securities or other Warrants will be separately transferable; (21) the date on
which the right to exercise such Index Warrants will commence and the date on
which such right will expire; (22) the identity of the Warrant Agent under the
applicable Warrant Agreement; (23) any national securities exchange on which
such Index Warrants will be listed; and (24) any other terms of such Index
Warrants.
Unless otherwise specified in the applicable Prospectus Supplement, Index
Warrants will be issued in the form of Global Securities held in book-entry
form. See "Book-Entry Securities" below.
Unless otherwise specified in the applicable Prospectus Supplement, each
Index will be an established, broadly-based index related to a major domestic
or foreign securities trading market or based upon a portfolio of specified
stocks or other securities, and the cash settlement value (and, if applicable,
the amount payable on cancellation) of the Index Warrants will be payable in
U.S. dollars.
Exercise of Index Warrants. Index Warrants may be exercised in the manner set
forth in the applicable Prospectus Supplement. Unless otherwise specified in
the Applicable Prospectus Supplement, in the case of Index Warrants held in
book-entry form, as described under "Book-Entry Securities" below, upon receipt
by the Warrant Agent of payment of the exercise price, if any, and notice of
exercise and delivery of the applicable Index Warrants to the account of the
Corporation free on the books of DTC, the Corporation will, as soon as
practicable, make adequate funds available to the Warrant Agent to make payment
of the applicable amounts to the account of the holder of such Index Warrants
specified in the applicable notice of exercise. In the case of Index Warrants
held in definitive form, the Corporation will make such payment upon such
exercise as soon as practicable upon receipt of payment of the exercise price,
if any, and the applicable Warrant Certificate properly completed and duly
executed at the corporate trust office of the applicable Warrant Agent or any
other office indicated in the applicable Prospectus Supplement. If fewer than
all of the Index Warrants represented by such Warrant Certificate are
exercised, a new Warrant Certificate will be issued for the remaining number of
Index Warrants.
Index Warrants will be settled only in cash and, accordingly, will not
require or entitle the holder thereof to sell, make delivery, purchase or take
delivery of any securities (including any Underlying Security), nor will the
Corporation be under any obligation to, nor will it, purchase or take delivery
of or sell or make delivery of any securities (including any Underlying
Security) from or to holders of Index Warrants pursuant to such Index Warrants.
The holders of Index Warrants will not receive any interest on any cash
settlement value or amount payable on cancellation of the Index Warrants, and
the Index Warrants will not entitle the holders thereof to any of the rights of
holders of any securities (including any Underlying Security).
Extraordinary Events. If so specified in the applicable Prospectus
Supplement, following the occurrence of an Extraordinary Event, Index Warrants
may be cancelled by the Corporation, the cash settlement value of such Index
Warrants may be determined on a different basis than under normal
circumstances, or the exercise or valuation of, or payment for, such Index
Warrants may be delayed or postponed. Upon cancellation, the holders of such
Index Warrants will be entitled to receive only the applicable amount payable
on cancellation specified in such Prospectus Supplement. The amount payable on
cancellation may be either a fixed amount or an amount that varies during the
term of the Index Warrants in accordance with a schedule or formula as
specified in the applicable Prospectus Supplement.
Other Information. Other important information regarding the Index Warrants
is set forth below under "--Certain Items Applicable to All Warrants" and under
"Book-Entry Securities," "United States Taxation" and "Foreign Currency Risks."
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DESCRIPTION OF INTEREST RATE WARRANTS
General. Interest Rate Warrants may be issued in the form of (i) Interest
Rate Warrants ("Interest Rate Put Warrants") entitling the holders thereof to
receive from the Corporation upon exercise an amount in cash determined by
reference to decreases in a fixed yield, price or rate of a Debt Instrument, in
a Rate or in any combination of Debt Instruments and/or Rates or in a yield,
price or rate that varies during the term of the Interest Rate Warrants in
accordance with a schedule or formula, (ii) Interest Rate Warrants ("Interest
Rate Call Warrants") entitling the holders thereof to receive from the
Corporation upon exercise an amount in cash determined by reference to
increases in such characteristics or rates, or (iii) any combination of the
foregoing. The applicable Prospectus Supplement will set forth the formula
pursuant to which the cash settlement value of the Interest Rate Warrants will
be determined, including any multipliers, if applicable. The "Debt Instrument,"
if any, will be one or more instruments issued either by the United States
government or by a foreign government and will be specified in the applicable
Prospectus Supplement. The "Rate," if any, will be one or more interest rates
or interest rate swap rates specified in the applicable Prospectus Supplement.
An Interest Rate Warrant will not require or entitle the holder thereof to
purchase or take delivery of or sell or make delivery of any securities
(including Debt Instruments), nor will the Corporation be under any obligation
to, nor will it, purchase or take delivery of or sell or make delivery of any
securities (including Debt Instruments) from or to holders of the Interest Rate
Warrants pursuant to the Interest Rate Warrants.
Unless otherwise provided in the applicable Prospectus Supplement, each
Interest Rate Warrant will entitle the holder thereof to receive from the
Corporation upon exercise the cash settlement value of such Interest Rate
Warrant. Unless earlier terminated or cancelled, Interest Rate Warrants may be
exercised at any time up to the close of business on the expiration date set
forth in the applicable Prospectus Supplement. Certain Interest Rate Warrants
will, if specified in the applicable Prospectus Supplement, entitle the holders
thereof to receive from the Corporation a certain amount upon cancellation of
the Interest Rate Warrants by the Corporation upon the occurrence of specified
events. If specified in the applicable Prospectus Supplement, the Interest Rate
Warrants may be deemed automatically exercised if not exercised by the holder
thereof on or before the expiration date of such Warrants (or such other date
as is specified in the applicable Prospectus Supplement). In addition, if so
specified in the applicable Prospectus Supplement, following the occurrence of
an Extraordinary Event (as defined in the applicable Prospectus Supplement),
the cash settlement value of an Interest Rate Warrant may, at the option of the
Corporation, be determined on a different basis, including in connection with
automatic exercise at expiration.
The Prospectus Supplement will describe the terms of Interest Rate Warrants
offered thereby, the Warrant Agreement relating to such Interest Rate Warrants
and the Warrant Certificates representing such Interest Rate Warrants,
including the following: (1) the title of such Interest Rate Warrants; (2)
whether such Interest Rate Warrants shall be Interest Rate Put Warrants,
Interest Rate Call Warrants, or any combination thereof; (3) the aggregate
number of such issue of Interest Rate Warrants; (4) the initial offering price
of such Interest Rate Warrants; (5) the exercise price, if any, of such
Interest Rate Warrants; (6) the currency, or unit of two or more currencies, in
which the initial offering price, the exercise price, if any, and/or the cash
settlement value of such Interest Rate Warrants is payable; (7) the Debt
Instrument, Rate, or other yield, price or rate utilized for such Interest Rate
Warrants, and certain information regarding such Debt Instrument, Rate or other
measure; (8) the method of providing for a substitute Debt Instrument, Rate or
other measure or otherwise determining the amount payable with respect to such
Interest Rate Warrants if such Debt Instrument is no longer issued or changes
or such Rate or other measure changes or is no longer made available; (9) the
formula for determining the cash settlement value of such Interest Rate
Warrants; (10) the circumstances, if any, in which the exercise price, if any,
or the formula for determining the cash settlement value may change; (11)
whether and under what circumstances a maximum expiration value is applicable
upon the expiration or exercise of such Interest Rate Warrants; (12) the effect
or effects, if any, of the occurrence of an Extraordinary Event; (13) the
minimum number, if any, of such Interest Rate Warrants that must be exercised
at any one time, other than upon automatic exercise, if any; (14) the maximum
number, if any, of such Interest Rate Warrants, that may be exercised by all
owners (or by any person or entity) on
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any day; (15) any provisions for the automatic exercise of such Interest Rate
Warrants; (16) whether and under what circumstances such Interest Rate Warrants
may be cancelled by the Corporation prior to expiration; (17) any provisions
permitting a holder of such Interest Rate Warrants to condition any notice of
exercise on the absence of certain specified changes in the value of the Debt
Instrument, Rate or other measure after the date of exercise; (18) any other
procedures and conditions relating to the exercise of such Interest Rate
Warrants; (19) if applicable, the designation and terms of any related Debt
Securities or other Warrants with which such Interest Rate Warrants are issued,
including whether such Debt Securities are Senior Debt Securities or
Subordinated Debt Securities and whether such other Warrants are Debt Warrants,
Currency Warrants, Index Warrants or Interest Rate Warrants, and the number of
such Interest Rate Warrants issued with each such Debt Security or other
Warrant; (20) the date, if any, on and after which such Interest Rate Warrants
and any related Debt Securities or other Warrants will be separately
transferable; (21) the date on which the right to exercise such Interest Rate
Warrants shall commence and the date on which such right will expire; (22) the
identity of the Warrant Agent under the applicable Warrant Agreement; (23) any
national securities exchange on which such Interest Rate Warrants will be
listed; and (24) any other terms of such Interest Rate Warrants.
Unless otherwise specified in the applicable Prospectus Supplement, Interest
Rate Warrants will be issued in the form of Global Securities held in book-
entry form. See "Book-Entry Securities" below.
Unless otherwise specified in the applicable Prospectus Supplement, the cash
settlement value (and, if applicable, the amount payable on cancellation) of
the Interest Rate Warrants will be payable in U.S. dollars.
Exercise of Interest Rate Warrants. Interest Rate Warrants may be exercised
in the manner set forth in the applicable Prospectus Supplement. Unless
otherwise specified in the applicable Prospectus Supplement, in the case of
Interest Rate Warrants held in book-entry form, as described under "Book-Entry
Securities" below, upon receipt by the Warrant Agent of payment of the exercise
price, if any, and notice of exercise and delivery of the applicable Interest
Rate Warrants to the account of the Corporation free on the books of DTC, the
Corporation will, as soon as practicable, make adequate funds available to the
Warrant Agent to make payment of the applicable amounts to the account of the
holder of such Interest Rate Warrants specified in the applicable notice of
exercise. In the case of Interest Rate Warrants held in definitive form, the
Corporation will make such payment upon such exercise as soon as practicable
upon receipt of payment of the exercise price, if any, and the applicable
Warrant Certificate properly completed and duly executed at the corporate trust
office of the applicable Warrant Agent or any other office indicated in the
applicable Prospectus Supplement. If fewer than all of the Interest Rate
Warrants represented by such Warrant Certificate are exercised, a new Warrant
Certificate will be issued for the remaining number of Interest Rate Warrants.
Interest Rate Warrants will be settled only in cash and, accordingly, will
not require or entitle the holder thereof to sell, make delivery, purchase or
take delivery of any securities (including any Debt Instrument), nor will the
Corporation be under any obligation to, nor will it, purchase or take delivery
of or sell or make delivery of any securities (including any Debt Instrument)
from or to holders of Interest Rate Warrants pursuant to such Interest Rate
Warrants. The holders of Interest Rate Warrants will not receive any interest
on any cash settlement value or amount payable on cancellation of the Interest
Rate Warrants, and the Interest Rate Warrants will not entitle the holders
thereof to any of the rights of holders of any securities (including any Debt
Instrument).
Extraordinary Events. If so specified in the applicable Prospectus
Supplement, following the occurrence of an Extraordinary Event, Interest Rate
Warrants may be cancelled by the Corporation, the cash settlement value of such
Interest Rate Warrants may be determined on a different basis than under normal
circumstances, or the exercise or valuation of, or payment for, such Interest
Rate Warrants may be delayed or postponed. Upon cancellation, the holders of
such Interest Rate Warrants will be entitled to receive only the applicable
amount payable on cancellation specified in such Prospectus Supplement. The
amount payable on cancellation may be either a fixed amount or an amount that
varies during the term of the Interest Rate Warrants in accordance with a
schedule or formula as specified in the applicable Prospectus Supplement.
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Other Information. Other important information regarding the Interest Rate
Warrants is set forth below under "--Certain Items Applicable to All Warrants"
and under "Book-Entry Securities," "United States Taxation" and "Foreign
Currency Risks."
CERTAIN ITEMS APPLICABLE TO ALL WARRANTS
Modification. Any Warrant Agreement and the terms of the related Warrants may
be amended by the Corporation and the applicable Warrant Agent (which amendment
shall take the form of a supplemental warrant agreement (collectively referred
to as "Supplemental Agreements")), without the consent of the holders of any
such Warrants, for the purpose of (i) curing any ambiguity or of curing,
correcting or supplementing any defective or inconsistent provision contained
therein, or of making any other provisions with respect to matters or questions
arising under the Warrant Agreement that shall not be inconsistent with the
provisions of the Warrant Agreement or the Warrant Certificates, (ii)
evidencing the succession of another corporation to the Corporation and the
assumption by any such successor of the covenants of the Corporation contained
in such Warrant Agreement and the Warrants, (iii) appointing a successor
depository, (iv) evidencing and providing for the acceptance of appointment by
a successor Warrant Agent with respect to the Warrants, (v) adding to the
covenants of the Corporation for the benefit of the holders of such Warrants or
surrendering any right or power conferred upon the Corporation under the
Warrant Agreement, (vi) issuing Warrants in definitive form, if such Warrants
are initially issued in book-entry form, or (vii) amending the Warrant
Agreement and the Warrants in any manner that the Corporation may deem to be
necessary or desirable and that will not materially and adversely affect the
interests of the holders of such Warrants.
The Corporation and the Warrant Agent may also amend any Warrant Agreement
and the terms of the related Warrants (which amendment shall take the form of a
Supplemental Agreement) with the consent of the holders of not less than 66
2/3% in number of the unexercised Warrants affected by such amendment, for the
purpose of adding any provisions to or modifying in any manner or eliminating
any of the provisions of such Warrant Agreement or of modifying in any manner
the rights of the holders of such Warrants, except that no such amendment that
(i) changes the determination of the cash settlement value or amount payable on
cancellation, if any, of such Warrants (or any aspects of such determination)
so as to reduce the amount receivable upon exercise or deemed exercise, (ii)
shortens the period of time during which the Warrants may be exercised, (iii)
otherwise materially and adversely affects the exercise rights of the holders
of such Warrants, or (iv) reduces the number of unexercised Warrants the
consent of holders of which is required for amendment of the Warrant Agreement
or the related Warrants, may be made without the consent of each holder
affected thereby.
Merger, Consolidation, Sale, Lease or Other Dispositions. Each Warrant
Agreement will provide that the Corporation may consolidate or merge with or
into any other corporation or sell, lease or convey all or substantially all of
its assets to any other corporation, provided that (i) either the Corporation
must be the continuing corporation or the corporation (if other than the
Corporation) that is formed by or results from any such consolidation or merger
or that receives such assets must be a corporation organized and existing under
the laws of the United States of America or a state thereof and must assume the
obligations of the Corporation to make due and punctual payment of the cash
settlement value (or amount payable on cancellation, if applicable) with
respect to all the unexercised Warrants and the performance and observance of
all of the covenants and conditions of the applicable Warrant Agreement to be
performed or observed by the Corporation and (ii) the Corporation or such
successor corporation, as the case may be, must not immediately be in default
under such Warrant Agreement.
Enforceability of Rights by Holders of Warrants. Each Warrant Agent will act
solely as the agent of the Corporation under the applicable Warrant Agreement
and will not assume any obligation or relationship of agency or trust for or
with any holder of any Warrant. A single bank or trust company may act as
Warrant Agent for more than one issue of Warrants. A Warrant Agent will have no
duty or responsibility in case of any default by the Corporation in the
performance of its obligations under the applicable Warrant Agreement or
Warrant including, without limitation, any duty or responsibility to initiate
any proceedings at law or otherwise or to make any demand upon the Corporation.
Any holder of a Warrant may, without the consent
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of the related Warrant Agent enforce by appropriate legal action, in and for
its own behalf, its right to exercise, and receive payment for, its Warrants.
Listing. Unless otherwise indicated in the applicable Prospectus Supplement,
each issue of Warrants will be listed on a national securities exchange as
specified in the Prospectus Supplement, subject only to official notice of
issuance, as a condition of sale of any such Warrants. It is expected that such
exchange will cease trading an issue of Warrants at the close of business on
the related expiration date of such Warrants. In the event that the Warrants
are delisted from, or permanently suspended from trading on, such exchange, the
expiration date for such Warrants will be the date such delisting or trading
suspension becomes effective and Warrants not previously exercised will be
deemed automatically exercised on such expiration date. The Corporation will
notify holders of Warrants as soon as practicable of any such delisting or
permanent trading suspension. The applicable Warrant Agreement will contain a
covenant of the Corporation not to seek delisting of the Warrants from, or
suspension of their trading on, such exchange.
Title. The Corporation, each Warrant Agent and each agent of the Corporation
or the relevant Warrant Agent may treat the registered owner of any Warrant as
the absolute owner thereof (notwithstanding any notice to the contrary) for the
purpose of making payment and for all other purposes. See "Book-Entry
Securities" below.
Replacement of Warrant Certificates. Any mutilated Warrant Certificate will
be replaced by the Corporation at the expense of the holder upon surrender of
such Warrant Certificate to the applicable Warrant Agent. Warrant Certificates
that are destroyed, lost or stolen will be replaced by the Corporation at the
expense of the holder upon delivery to the relevant Warrant Agent of evidence
of the destruction, loss or theft thereof satisfactory to the Corporation and
the relevant Warrant Agent. In the case of a destroyed, lost or stolen Warrant
Certificate, an indemnity satisfactory to the relevant Warrant Agent and the
Corporation may be required at the expense of the holder of such Warrant before
a replacement Warrant Certificate will be issued.
Governing Law. The Warrant Agreements and Warrants will be governed by, and
construed in accordance with, the laws of the State of New York.
"Reopening" of an Issue of Warrants. The Corporation will have the right to
"reopen" a previous issue of Warrants and to issue additional Warrants of such
issue without the consent of any holder of Warrants of such issue.
BOOK-ENTRY SECURITIES
Unless otherwise specified in the applicable Prospectus Supplement, the
Offered Securities will be issued in the form of one or more global
certificates (collectively, with respect to each series or issue of Offered
Securities, the "Global Security") registered in the name of a depositary or a
nominee of a depositary. Unless otherwise specified in the applicable
Prospectus Supplement, the depositary will be The Depository Trust Company
("DTC"). The Corporation has been informed by DTC that its nominee will be Cede
& Co. ("Cede"). Accordingly, Cede is expected to be the initial registered
holder of the Offered Securities that are issued in global form. No person that
acquires an interest in such Offered Securities (each such person, a "Holder")
will be entitled to receive a certificate representing such person's interest
in the Offered Securities except as set forth herein or in the accompanying
Prospectus Supplement. Unless and until definitive Offered Securities are
issued under the limited circumstances described herein, all references to
actions by holders of Offered Securities issued in global form shall refer to
actions taken by DTC upon instructions from its Participants (as defined
below), and all references herein to payments and notices to holders shall
refer to payments and notices to DTC or Cede, as the registered holder of such
Offered Securities.
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DTC has informed the Corporation that it is a limited purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, that it is a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered pursuant to Section 17A of
the Exchange Act, and that it was created to hold securities for its
participating organizations ("Participants") and to facilitate the clearance
and settlement of securities transactions among Participants through electronic
book-entry, thereby eliminating the need for physical movement of certificates.
Participants include securities brokers and dealers, banks, trust companies and
clearing corporations, and may include certain other organizations. Indirect
access to the DTC system also is available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly ("Indirect
Participants").
Holders that are not Participants or Indirect Participants but that desire to
purchase, sell or otherwise transfer ownership of, or other interests in,
Offered Securities may do so only through Participants and Indirect
Participants. Under a book-entry format, Holders may experience some delay in
their receipt of payments, as such payments will be forwarded by the agent
designated by the Corporation to Cede, as nominee for DTC. DTC will forward
such payments to its Participants, which thereafter will forward them to
Indirect Participants or Holders. Holders will not be recognized by the
applicable Trustee or Warrant Agent as registered holders of the Offered
Securities entitled to the benefits of the applicable Indenture or Warrant
Agreement. Holders that are not Participants will be permitted to exercise
their rights as such only indirectly through and subject to the procedures of
Participants and, if applicable, Indirect Participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations as currently in effect (the "Rules"), DTC will be required to
make book-entry transfers of Offered Securities among Participants and to
receive and transmit payments to Participants. Participants and Indirect
Participants with which Holders have accounts with respect to the Offered
Securities similarly are required by the Rules to make book-entry transfers and
receive and transmit such payments on behalf of their respective Holders.
Because DTC can act only on behalf of Participants, who in turn act only on
behalf of Holders or Indirect Participants, and on behalf of certain banks,
trust companies and other persons approved by it, the ability of a Holder to
pledge Offered Securities to persons or entities that do not participate in the
DTC system, or to otherwise act with respect to such Offered Securities, may be
limited due to the absence of physical certificates for such Offered
Securities.
DTC has advised the Corporation that DTC will take any action permitted to be
taken by a registered holder of any Offered Securities under the applicable
Indenture or Warrant Agreement only at the direction of one or more
Participants to whose accounts with DTC such Offered Securities are credited.
A Global Security will be exchangeable for the relevant definitive Offered
Securities registered in the names of persons other than DTC or its nominee
only if (i) DTC notifies the Corporation that it is unwilling or unable to
continue as depository for such Global Security or if at any time DTC ceases to
be a clearing agency registered under the Exchange Act at a time when DTC is
required to be so registered in order to act as such depository, (ii) the
Corporation executes and delivers to the applicable Trustee and/or Warrant
Agent an order complying with the requirements of the applicable Indenture
and/or Warrant Agreement that such Global Security shall be so exchangeable or
(iii) there has occurred and is continuing a default in the payment of
principal of, premium, if any, or interest on, the Debt Securities or the
payment of the cash settlement amount, or cancellation amount, if any, of the
Warrants, or, in the case of Debt Securities, an Event of Default or an event
that, with the giving of notice or lapse of time, or both, would constitute an
Event of Default with respect to such Debt Securities. Any Global Security that
is exchangeable pursuant to the preceding sentence will be exchangeable for
Debt Securities or Warrants registered in such names as DTC directs.
Upon the occurrence of any event described in the immediately preceding
paragraph, DTC is generally required to notify all Participants of the
availability through DTC of definitive Offered Securities. Upon surrender by
DTC of the Global Security representing the Offered Securities and delivery of
instructions for
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re-registration, the Trustee or Warrant Agent, as the case may be, will reissue
the Offered Securities as definitive Debt Securities or Warrants, and
thereafter such Trustee or Warrant Agent will recognize the Holders of such
definitive Offered Securities as registered holders of Offered Securities
entitled to the benefits of the applicable Indenture or Warrant Agreement.
Except as described above, the Global Security may not be transferred except
as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or to a successor depositary appointed by the Corporation.
Except as described above, DTC may not sell, assign, transfer or otherwise
convey any beneficial interest in a Global Security evidencing all or part of
the Offered Securities unless such beneficial interest is in an amount equal to
an authorized denomination for the Offered Securities.
UNITED STATES TAXATION
Certain special United States federal income tax considerations may be
applicable to the Debt Securities and Warrants. The applicable Prospectus
Supplement will describe such tax considerations. The summary of United States
federal income tax considerations contained in such Prospectus Supplement will
be presented for informational purposes only, however, and will not be intended
as legal or tax advice to prospective purchasers. Prospective purchasers of
Debt Securities and Warrants are urged to consult their own tax advisors prior
to any acquisition of such Offered Securities.
FOREIGN CURRENCY RISKS
GENERAL
Debt Securities of a series, and payments made in respect of Warrants of an
issue, may be denominated in such foreign currency, or unit of two or more
currencies, as may be designated by the Corporation at the time of offering
(such Offered Securities, "Foreign Currency Securities").
THIS PROSPECTUS DOES NOT DESCRIBE ALL RISKS OF AN INVESTMENT IN FOREIGN
CURRENCY SECURITIES THAT RESULT FROM SUCH FOREIGN CURRENCY SECURITIES, OR
AMOUNTS PAYABLE IN RESPECT OF SUCH FOREIGN CURRENCY SECURITIES, BEING
DENOMINATED IN A FOREIGN CURRENCY, OR UNIT OF TWO OR MORE CURRENCIES, EITHER AS
SUCH RISKS EXIST AT THE DATE OF THIS PROSPECTUS OR AS SUCH RISKS MAY CHANGE
FROM TIME TO TIME. PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL
AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN FOREIGN
CURRENCY SECURITIES. FOREIGN CURRENCY SECURITIES ARE NOT AN APPROPRIATE
INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO FOREIGN
CURRENCY TRANSACTIONS. ADDITIONAL FACTORS MAY BE SET FORTH IN CONNECTION WITH A
SPECIFIC FOREIGN CURRENCY SECURITY IN THE APPLICABLE PROSPECTUS SUPPLEMENT.
Unless otherwise indicated in the applicable Prospectus Supplement, a Foreign
Currency Security will not be sold in, or to a resident of, the country of the
Specified Currency (as defined below) in which such Foreign Currency Security
is denominated. The information set forth below is by necessity incomplete and
prospective purchasers of Foreign Currency Securities should consult their own
financial and legal advisors with respect to any matters that may affect the
purchase or holding of a Foreign Currency Security or the receipt of payments
of principal of, and premium, if any, and interest on, a Foreign Currency
Security in a Specified Currency.
EXCHANGE RATES AND EXCHANGE CONTROLS
An investment in Foreign Currency Securities entails significant risks that
are not associated with a similar investment in a security denominated in U.S.
dollars. Such risks include, without limitation, the
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possibility of significant changes in the rate of exchange between the U.S.
dollar and the currency, or unit of two or more currencies, designated by the
Corporation at the time of offering (the "Specified Currency") and the
possibility of the imposition or modification of foreign exchange controls by
either the United States or foreign governments. Such risks generally depend on
economic and political events and the supply of and demand for the relevant
currencies, over which the Corporation has no control. In recent years, rates
of exchange between the U.S. dollar and certain foreign currencies have been
highly volatile and such volatility may be expected in the future. Fluctuations
in any particular exchange rate that have occurred in the past are not
necessarily indicative, however, of fluctuations in the rate that may occur
during the term of any Foreign Currency Security. Depreciation of the Specified
Currency applicable to a Foreign Currency Security against the U.S. dollar
would result in a decrease in the U.S. dollar-equivalent yield of such Foreign
Currency Security, in the U.S. dollar-equivalent value of the principal
repayable at maturity of such Foreign Currency Security and, generally, in the
U.S. dollar-equivalent market value of such Foreign Currency Security.
Governments have imposed from time to time exchange controls and may in the
future impose or revise exchange controls at or prior to a Foreign Currency
Security's maturity or expiration. Even if there are no exchange controls in
effect with respect to a Specified Currency, it is possible that the Specified
Currency for any particular Foreign Currency Security would not be available at
such Foreign Currency Security's maturity or expiration due to other
circumstances beyond the control of the Corporation.
JUDGMENTS
If an action based on Foreign Currency Securities were commenced in a court
of the United States, it is likely that such court would grant judgment
relating to such Foreign Currency Securities only in U.S. dollars. It is not
clear, however, whether, in granting such judgment, the rate of conversion into
U.S. dollars would be determined with reference to the date of default, the
date on which judgment is rendered or some other date. Holders of Foreign
Currency Securities would bear the risk of exchange rate fluctuations between
the time the amount of the judgment is calculated and the time the applicable
Trustee or Warrant Agent converts U.S. dollars to the Specified Currency for
payment of the judgment.
VALIDITY OF OFFERED SECURITIES
The validity of the Offered Securities to which this Prospectus relates will
be passed upon for the Corporation by Gordon S. Calder, Jr., Esq., a Managing
Director and Counsel of Bankers, and for any underwriters or agents by Sullivan
& Cromwell, New York, New York. Sullivan & Cromwell performs services for the
Corporation, and may act as special tax counsel to the Corporation in
connection with offerings of Offered Securities. Mr. Calder has an interest in
a number of shares equal to less than .015% of the Corporation's outstanding
Common Stock, par value $1.00 per share.
EXPERTS
The consolidated financial statements of the Corporation for the year ended
December 31, 1993, appearing in the Corporation's Annual Report on Form 10-K
for the year ended December 31, 1993, and incorporated by reference into this
Prospectus, have been audited by Ernst & Young, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in auditing and accounting.
PLAN OF DISTRIBUTION
The Corporation may sell Offered Securities to one or more underwriters for
public offering and sale by them or may sell Offered Securities to investors
directly or through agents. Any underwriter or agent involved in the offer and
sale of the Offered Securities will be named in the applicable Prospectus
Supplement.
22
<PAGE>
Underwriters may offer and sell the Offered 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. The Corporation also may, from time to time, authorize firms
acting as the Corporation's agents to offer and sell the Offered Securities
upon the terms and conditions set forth in the applicable Prospectus
Supplement. In connection with the sale of Offered Securities, underwriters 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 Offered Securities for whom they may act as agents. Underwriters
may sell Offered 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 (which may be changed from time to time) from
the purchasers for whom they may act as agents.
Any underwriting compensation paid by the Corporation to underwriters or
agents in connection with the offering of Offered Securities, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in the applicable Prospectus Supplement.
Underwriters, dealers and agents participating in the distribution of the
Offered Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
Offered Securities may be deemed to be underwriting discounts and commissions
under the Securities Act. Underwriters, dealers and agents may be entitled,
under agreements with the Corporation, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act, and to reimbursement by the Corporation for certain expenses.
If so indicated in the applicable Prospectus Supplement, the Corporation will
authorize dealers acting as the Corporation's agents to solicit offers by
certain institutions to purchase Offered 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 or face amount or
number of Offered 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 Offered 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 Offered Securities are
being sold to underwriters, the Corporation shall have sold to such
underwriters the total principal or face amount or number of the Offered
Securities less the principal or face amount or number thereof covered by
Contracts. Agents and underwriters will have no responsibility in respect of
the delivery or performance of Contracts.
Each series of Offered Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Offered Securities are
sold by the Corporation for public offering and sale may make a market in such
Offered Securities, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of or the trading markets for any Offered
Securities.
This Prospectus and the applicable Prospectus Supplement may also be
delivered in connection with sales of Offered Securities by affiliates of the
Corporation that have acquired such Offered Securities.
The offer and sale of the Offered Securities will comply with the
requirements of Schedule E of the By-Laws of the National Association of
Securities Dealers, Inc. regarding underwriting securities of an affiliate.
Certain of the underwriters 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.
23
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting compensation, are:
<TABLE>
<S> <C>
Filing fee for registration statement........................... $172,415
Legal fees and expenses......................................... 50,000*
Accounting fees and expenses.................................... 50,000*
Blue sky fees and expenses...................................... 25,000*
Printing and engraving fees..................................... 100,000*
Trust indenture fees and expenses............................... 50,000*
Warrant agent fees and expenses................................. 10,000*
Rating agency fees.............................................. 100,000*
NASD fees....................................................... 30,500
Listing fees and expenses....................................... 100,000*
Miscellaneous................................................... 27,085
--------
Total......................................................... $715,000
========
</TABLE>
--------
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the By-Laws of Bankers Trust New York Corporation provides as
follows:
SECTION 5.01 The corporation shall, to the fullest extent permitted by Section
721 of the New York Business Corporation 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 corporation 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 corporation is
serving or served in any capacity at the request of the corporation by reason
of the fact that he, his testator or intestate, is or was a director or officer
of the corporation, 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 5.02 The corporation may indemnify any other person to whom the
corporation 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 Business Corporation Law or other rights created by
(i) a resolution of shareholders, (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 5.03 The corporation shall, from time to time, reimburse or advance to
any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, 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
II-1
<PAGE>
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 5.04 Any director or officer of the corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation, or (ii) any employee benefit plan
of the corporation or any corporation referred to in clause (i), in any
capacity shall be deemed to be doing so at the request of the corporation. 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 specific request of the
corporation, evidenced by a written communication signed by the Chairman of the
Board, the President or any Vice Chairman, and (ii) only if and to the extent
that, after making such efforts as the Chairman of the Board, the President or
any Vice Chairman shall deem adequate in the circumstances, such person shall
be unable to obtain indemnification from such other enterprise or its insurer.
SECTION 5.05 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 the
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 5.06 The right to be indemnified or to the reimbursement or advancement
of expenses 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 corporation 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 5.07 If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the corporation
within thirty days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation 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 corporation (including its Board of
Directors, independent legal counsel, or its shareholders) 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
circumstances, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) 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 5.08 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 5.01 shall be entitled to indemnification only as provided
in Sections 5.01 and 5.03, notwithstanding any provision of the New York
Business Corporation Law to the contrary.
With certain limitations, Sections 721 through 726 of the New York Business
Corporation Law permit a corporation to indemnify a director or officer made a
party to an action (i) by a corporation or in its right in order to procure a
judgment in its favor unless he shall have breached his duties, or (ii) other
than an action by or in the right of the corporation in order to procure a
judgment in its favor if such director or officer acted in good faith and in a
manner he reasonably believed to be in or, in certain cases, not opposed to
such corporation's best interests, and additionally, in criminal actions, has
no reasonable cause to believe his conduct was unlawful.
II-2
<PAGE>
In addition, a Directors and Officers Liability and Corporation Reimbursement
Policy is maintained covering the Corporation and its directors and officers
for amounts, subject to policy limits, that the Corporation might be required
to pay by way of indemnification to its directors or officers under its By-Laws
or otherwise and for the protection of individual directors and officers from
loss for which they might not be indemnified by the Corporation.
Reference is made to the forms of Underwriting Agreements filed as Exhibits
1.1 and 1.2 hereto for a description of certain indemnity arrangements.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*1.1 --Form of Underwriting Agreement for Debt Securities.
*1.2 --Form of Underwriting Agreement for Warrants.
**4.1 --Indenture, dated as of November 1, 1991, between the Registrant and
The Chase Manhattan Bank (National Association) relating to Senior
Debt Securities (filed as an Exhibit to the Registrant's Current Re-
port on Form 8-K, dated November 12, 1991, file number 1-5920).
**4.2 --First Supplemental Indenture, dated as of September 1, 1993, between
the Registrant and The Chase Manhattan Bank (National Association)
(filed as an Exhibit to the Registrant's Current Report on Form 8-K,
dated October 22, 1993, file number 1-5920).
**4.3 --Indenture, dated as of April 1, 1992, between the Registrant and Ma-
rine Midland Bank, N.A. relating to Subordinated Debt Securities
(filed as an Exhibit to the Registrant's Registration Statement on
Form S-3, file number 33-50395, as filed on September 24, 1993).
**4.4 --First Supplemental Indenture, dated as of January 15, 1993, between
the Registrant and Marine Midland Bank, N.A. (filed as an Exhibit to
the Registrant's Current Report on Form 8-K dated January 14, 1993,
file number 1-5920).
4.5 --Form of Indenture relating to Subordinated Debt Securities.
4.6 --Form of Debt Warrant Agreement, including form of global Warrant
Certificate.
4.7 --Form of Currency Warrant Agreement, including form of global Warrant
Certificate.
4.8 --Form of Index Warrant Agreement, including form of global Warrant
Certificate.
4.9 --Form of Interest Rate Warrant Agreement, including form of global
Warrant Certificate.
5.1 --Opinion re: Legality.
**12.1 --Computation of Consolidated Ratios of Earnings to Fixed Charges
(filed as an Exhibit to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993, file number 1-5920).
23.1 --Consent of Independent Auditors.
23.2 --Consent of Counsel (contained in the opinion filed as Exhibit 5.1 to
this Registration Statement).
*24.1 --Powers of Attorney.
*25.1 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Chase Manhattan Bank (National Association).
25.2 --Amendment to Form T-1 Statement of Eligibility under the Trust In-
denture Act of 1939 of Marine Midland Bank.
</TABLE>
- --------
* Previously filed.
** Incorporated by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
II-3
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, 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 the 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, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the 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>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE 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 AMENDMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF NEW YORK, STATE OF NEW YORK, ON THE 6TH DAY OF MAY, 1994.
BANKERS TRUST NEW YORK CORPORATION
/s/ Duncan P. Hennes
By: ____________________________________
NAME: DUNCAN P. HENNES
TITLE: SENIOR VICE PRESIDENT
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:
SIGNATURES TITLE DATE
*Charles S. Sanford, Jr. Chairman of the
- ------------------------------------- Board, Chief May 6, 1994
(CHARLES S. SANFORD, JR.) Executive Officer
and Director
(Principal Executive
Officer)
*Timothy T. Yates Executive Vice
- ------------------------------------- President and Chief May 6, 1994
(TIMOTHY T. YATES) Financial Officer
(Principal Financial
Officer)
*Geoffrey M. Fletcher Senior Vice
- ------------------------------------- President (Principal May 6, 1994
(GEOFFREY M. FLETCHER) Accounting Officer)
*George B. Beitzel Director
- ------------------------------------- May 6, 1994
(GEORGE B. BEITZEL)
Director
- ------------------------------------- May 6, 1994
(WILLIAM R. HOWELL)
*Jon M. Huntsman Director
- ------------------------------------- May 6, 1994
(JON M. HUNTSMAN)
*Vernon E. Jordan, Jr. Director
- ------------------------------------- May 6, 1994
(VERNON E. JORDAN, JR.)
II-5
<PAGE>
SIGNATURES TITLE DATE
Director
- ------------------------------------- May 6, 1994
(HAMISH MAXWELL)
*Donald F. McCullough Director
- ------------------------------------- May 6, 1994
(DONALD F. MCCULLOUGH)
*N.J. Nicholas Jr. Director
- ------------------------------------- May 6, 1994
(N.J. NICHOLAS JR.)
*Russell E. Palmer Director
- ------------------------------------- May 6, 1994
(RUSSELL E. PALMER)
*Didier Pineau-Valencienne Director
- ------------------------------------- May 6, 1994
(DIDIER PINEAU-VALENCIENNE)
*Eugene B. Shanks, Jr. Director
- ------------------------------------- May 6, 1994
(EUGENE B. SHANKS, JR.)
*Patricia C. Stewart Director
- ------------------------------------- May 6, 1994
(PATRICIA C. STEWART)
*George J. Vojta Director
- ------------------------------------- May 6, 1994
(GEORGE J. VOJTA)
/s/ Duncan P. Hennes
*By_________________________________
(DUNCAN P. HENNES, ATTORNEY-IN-FACT)
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*1.1 --Form of Underwriting Agreement for Debt Securities.
*1.2 --Form of Underwriting Agreement for Warrants.
**4.1 --Indenture, dated as of November 1, 1991, between the Registrant and
The Chase Manhattan Bank (National Association) relating to Senior
Debt Securities (filed as an Exhibit to the Registrant's Current
Report on Form 8-K, dated November 12, 1991, file number 1-5920).
**4.2 --First Supplemental Indenture, dated as of September 1, 1993, between
the Registrant and The Chase Manhattan Bank (National Association)
(filed as an Exhibit to the Registrant's Current Report on Form 8-K,
dated October 22, 1993, file number 1-5920).
**4.3 --Indenture, dated as of April 1, 1992, between the Registrant and
Marine Midland Bank, N.A. relating to Subordinated Debt Securities
(filed as an Exhibit to the Registrant's Registration Statement on
Form S-3, file number 33-50395, as filed on September 24, 1993).
**4.4 --First Supplemental Indenture, dated as of January 15, 1993, between
the Registrant and Marine Midland Bank, N.A. (filed as an Exhibit to
the Registrant's Current Report on Form 8-K dated January 14, 1993,
file number 1-5920).
4.5 --Form of Indenture relating to Subordinated Debt Securities.
4.6 --Form of Debt Warrant Agreement, including form of global Warrant
Certificate.
4.7 --Form of Currency Warrant Agreement, including form of global Warrant
Certificate.
4.8 --Form of Index Warrant Agreement, including form of global Warrant
Certificate.
4.9 --Form of Interest Rate Warrant Agreement, including form of global
Warrant Certificate.
5.1 --Opinion re: Legality.
**12.1 --Computation of Consolidated Ratios of Earnings to Fixed Charges
(filed as an Exhibit to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993, file number 1-5920).
23.1 --Consent of Independent Auditors.
23.2 --Consent of Counsel (contained in the opinion filed as Exhibit 5.1 to
this Registration Statement).
*24.1 --Powers of Attorney.
*25.1 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Chase Manhattan Bank (National Association).
25.2 --Amendment to Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Marine Midland Bank.
</TABLE>
- --------
* Previously filed.
** Incorporated by reference.
<PAGE>
EXHIBIT 4.5
================================================================================
BANKERS TRUST NEW YORK CORPORATION
TO
.........................................................
Trustee
______________
INDENTURE
Dated as of ..................., 199_
______________
================================================================================
<PAGE>
..............................................................
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
(S)310(a)(1) .......................................... 609
(a)(2) .......................................... 609
(a)(3) .......................................... Not Applicable
(a)(4) .......................................... Not Applicable
(b) .......................................... 608
610
(S)311(a) .......................................... 613
(b) .......................................... 613
(S)312(a) .......................................... 701
702
(b) .......................................... 702
(c) .......................................... 702
(S)313(a) .......................................... 703
(b) .......................................... 703
(c) .......................................... 703
(d) .......................................... 703
(S)314(a) .......................................... 704
(a)(4) .......................................... 101
1004
(b) .......................................... Not Applicable
(c)(1) .......................................... 102
(c)(2) .......................................... 102
(c)(3) .......................................... Not Applicable
(d) .......................................... Not Applicable
(e) .......................................... 102
(S)315(a) .......................................... 601
(b) .......................................... 602
(c) .......................................... 601
(d) .......................................... 601
(e) .......................................... 514
(S)316(a) .......................................... 101
(a)(1)(A).......................................... 502
512
(a)(1)(B).......................................... 513
(a)(2) .......................................... Not Applicable
(b) .......................................... 508
(c) .......................................... 104
(S)317(a)(1) .......................................... 503
(a)(2) .......................................... 504
(b) .......................................... 1003
(S)318(a) .......................................... 107
___________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
__________
Page
----
Parties............................................................ 1
Recitals of the Corporation........................................ 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions:
Act................................................... 2
Affiliate............................................. 2
Authenticating Agent.................................. 2
Bankers............................................... 2
Board of Directors.................................... 2
Board Resolution...................................... 2
Business Day.......................................... 2
Commission............................................ 2
Corporate Trust Office................................ 3
corporation........................................... 3
Corporation........................................... 3
Corporation Request; Corporation Order................ 3
Covenant Defeasance................................... 3
Default............................................... 3
Defaulted Interest.................................... 3
Defeasance............................................ 3
Depositary............................................ 3
Entitled Person....................................... 3
Event of Default...................................... 3
Excess Proceeds....................................... 3
Exchange Act.......................................... 3
Existing Subordinated Indebtedness.................... 4
Expiration Date....................................... 4
Global Security....................................... 4
Holder................................................ 4
indebtedness for money borrowed....................... 4
Indenture............................................. 4
interest.............................................. 4
Interest Payment Date................................. 4
Investment Company Act................................ 5
Maturity.............................................. 5
- ----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE>
Page
----
Notice of Default..................................... 5
Officers' Certificate................................. 5
Opinion of Counsel.................................... 5
Original Issue Discount Security...................... 5
Other Financial Obligations........................... 5
Outstanding........................................... 5
Paying Agent.......................................... 6
Person................................................ 6
Place of Payment...................................... 6
Predecessor Security.................................. 7
Redemption Date....................................... 7
Redemption Price...................................... 7
Regular Record Date................................... 7
Responsible Officer................................... 7
Securities............................................ 7
Securities Act........................................ 7
Security Register; Security Registrar................. 7
Senior Indebtedness................................... 7
Special Record Date................................... 8
Stated Maturity....................................... 8
Trust Indenture Act................................... 8
Trustee............................................... 8
U.S. Government Obligation............................ 8
Vice President........................................ 8
Section 102. Compliance Certificates and Opinions.................. 8
Section 103. Form of Documents Delivered to Trustee................ 9
Section 104. Acts of Holders; Record Dates......................... 9
Section 105. Notices, Etc., to Trustee and Corporation............. 12
Section 106. Notice to Holders; Waiver............................. 12
Section 107. Conflict with Trust Indenture Act..................... 12
Section 108. Effect of Headings and Table of Contents.............. 13
Section 109. Successors and Assigns................................ 13
Section 110. Separability Clause................................... 13
Section 111. Benefits of Indenture................................. 13
Section 112. Governing Law......................................... 13
Section 113. Legal Holidays........................................ 13
Section 114. Currency Conversion................................... 14
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ARTICLE TWO
Security Forms
Section 201. Forms Generally....................................... 14
Section 202. Form of Face of Security.............................. 15
Section 203. Form of Reverse of Security........................... 16
Section 204. Form of Legend for Global Securities.................. 21
Section 205. Form of Trustee's Certificate of Authentication....... 21
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.................. 22
Section 302. Denominations......................................... 25
Section 303. Execution, Authentication, Delivery and Dating........ 25
Section 304. Temporary Securities.................................. 27
Section 305. Registration, Registration of Transfer and Exchange... 27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...... 29
Section 307. Payment of Interest; Interest Rights Preserved........ 30
Section 308. Persons Deemed Owners................................. 31
Section 309. Cancellation.......................................... 31
Section 310. Computation of Interest............................... 32
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture............... 32
Section 402. Application of Trust Money............................ 33
ARTICLE FIVE
Remedies
Section 501. Events of Default..................................... 33
Section 502. Acceleration of Maturity; Rescission and Annulment.... 34
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Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee............................ 35
Section 504. Trustee May File Proofs of Claim...................... 36
Section 505. Trustee May Enforce Claims Without Possession
of Securities..................................... 36
Section 506. Application of Money Collected........................ 37
Section 507. Limitation on Suits................................... 37
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.............................. 38
Section 509. Restoration of Rights and Remedies.................... 38
Section 510. Rights and Remedies Cumulative........................ 38
Section 511. Delay or Omission Not Waiver.......................... 38
Section 512. Control by Holders.................................... 39
Section 513. Waiver of Past Defaults............................... 39
Section 514. Undertaking for Costs................................. 40
Section 515. Waiver of Usury, Stay or Extension Laws............... 40
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities................... 40
Section 602. Notice of Defaults.................................... 40
Section 603. Certain Rights of Trustee............................. 41
Section 604. Not Responsible for Recitals or Issuance of Securities 42
Section 605. May Hold Securities................................... 42
Section 606. Money Held in Trust................................... 42
Section 607. Compensation and Reimbursement........................ 42
Section 608. Conflicting Interests................................. 43
Section 609. Corporate Trustee Required; Eligibility............... 43
Section 610. Resignation and Removal; Appointment of Successor..... 43
Section 611. Acceptance of Appointment by Successor................ 45
Section 612. Merger, Conversion, Consolidation or Succession
to Business....................................... 46
Section 613. Preferential Collection of Claims Against Corporation. 46
Section 614. Appointment of Authenticating Agent................... 46
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Corporation
Section 701. Corporation to Furnish Trustee Names and Addresses
of Holders........................................ 48
Section 702. Preservation of Information; Communications
to Holders........................................ 48
Section 703. Reports by Trustee.................................... 48
Section 704. Reports by Corporation................................ 49
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Corporation May Consolidate, Etc., Only on
Certain Terms..................................... 49
Section 802. Successor Substituted................................. 49
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.... 50
Section 902. Supplemental Indentures with Consent of Holders....... 51
Section 903. Execution of Supplemental Indentures.................. 52
Section 904. Effect of Supplemental Indentures..................... 52
Section 905. Conformity with Trust Indenture Act................... 52
Section 906. Reference in Securities to Supplemental Indentures.... 53
Section 907. Subordination Unimpaired.............................. 53
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest............ 53
Section 1002. Maintenance of Office or Agency....................... 53
Section 1003. Money for Securities Payments to Be Held in Trust..... 54
Section 1004. Statement by Officers as to Default................... 55
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Section 1005. Existence............................................. 55
Section 1006. Waiver of Certain Covenants........................... 55
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.............................. 56
Section 1102. Election to Redeem; Notice to Trustee................. 56
Section 1103. Selection by Trustee of Securities to Be Redeemed..... 56
Section 1104. Notice of Redemption.................................. 57
Section 1105. Deposit of Redemption Price........................... 58
Section 1106. Securities Payable on Redemption Date................. 58
Section 1107. Securities Redeemed in Part........................... 58
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.............................. 59
Section 1202. Satisfaction of Sinking Fund Payments with Securities. 59
Section 1203. Redemption of Securities for Sinking Fund............. 59
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Corporation's Option to Effect Defeasance or
Covenant Defeasance............................... 60
Section 1302. Defeasance and Discharge.............................. 60
Section 1303. Covenant Defeasance................................... 61
Section 1304. Conditions to Defeasance or Covenant Defeasance....... 61
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions..... 63
Section 1306. Reinstatement......................................... 63
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ARTICLE FOURTEEN
Subordination of Securities
Section 1401. Securities Subordinate to Senior Indebtedness......... 64
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc........ 64
Section 1403. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities........................ 66
Section 1404. No Payment When Senior Indebtedness in Default........ 66
Section 1405. Payment Permitted If No Default....................... 67
Section 1406. Subrogation to Rights of Holders of Senior
Indebtedness...................................... 67
Section 1407. Provisions Solely to Define Relative Rights........... 67
Section 1408. Authorization of Trustee to Effectuate
Subordination of Securities....................... 68
Section 1409. No Waiver of Subordination Provisions................. 68
Section 1410. Notice to Trustee; Trustee Not Charged with
Knowledge of Prohibition.......................... 69
Section 1411. Reliance on Judicial Order or Certificate of
Liquidating Agent................................. 69
Section 1412. No Fiduciary Duty to Holders of Senior Indebtedness
of Corporation.................................... 70
Section 1413. Right of Trustee to Hold Senior Indebtedness of
Corporation....................................... 70
Section 1414. Article Applicable to Paying Agents................... 70
Section 1415. Securities to Rank Pari Passu with Existing
Subordinated Indebtedness; Payment of Proceeds in
Certain Cases..................................... 70
Testimonium......................................................... 72
Signatures and Seals................................................ 73
Acknowledgements.................................................... 74
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<PAGE>
INDENTURE, dated as of ................, 199.., between Bankers Trust New
York Corporation, a corporation duly organized and existing under the laws of
the State of New York (herein called the "Corporation"), having its principal
office at 280 Park Avenue, New York, New York 10017, and
.............................., a ........................... duly organized and
existing under the laws of ........, as Trustee (herein called the "Trustee").
Recitals of the Corporation
The Corporation has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(4) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Indenture; and
<PAGE>
(5) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to
Section 614 to act on behalf of the Trustee to authenticate Securities of one or
more series. Each reference herein to authentication by the Trustee includes
authentication by an Authentication Agent.
"Bankers" means Bankers Trust Company, a New York State banking corporation,
and its successors and assigns.
"Board of Directors" means the board of directors of the Corporation or the
Executive Committee of the board of directors of the Corporation (or any other
committee of the board of directors of the Corporation performing similar
functions) or, for purposes of the Indenture, a committee designated by the
board of directors of the Corporation, comprised of two or more members of the
board of directors of the Corporation or officers of the Corporation, or both.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Corporation to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
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"Corporate Trust Office" means the principal office of the Trustee in
................................................................ at which at any
particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock company
or business trust.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor Person.
"Corporation Request" or "Corporation Order" means a written request or order
signed in the name of the Corporation by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Default" shall mean, with respect to Securities of any series, any Event of
Default with respect to such series and, to the extent not included in the
foregoing, any of the events specified in Clauses (1), (2) and (3) of Section
503, in each case not including periods of grace, if any, provided for therein
or in the terms of any Securities and irrespective of the giving of the notice,
if any, specified therein or in the terms of any Securities.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Entitled Person" means any Person entitled to payment pursuant to the terms
of Other Financial Obligations.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning specified in Section 1415(c).
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Existing Subordinated Indebtedness" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, the Corporation's
7.50% Convertible
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Capital Securities due 2033, Subordinated LIBOR/CMT Floating Rate Debentures due
2003, 7 5/8% Convertible Capital Securities due 2033, Subordinated Floating Rate
Notes due 2005, Subordinated Constant Maturity Treasury Floating Rate Debentures
due 2003, 7.25% Subordinated Debentures due January 15, 2003, Floating Rate
Subordinated Notes due 2002, 7-1/8% Subordinated Debentures due July 31, 2002,
8-1/8% Subordinated Debentures due May 15, 2002, 7.50% Subordinated Debentures
due January 15, 2002, 9.00% Subordinated Debentures due August 1, 2001, 9.40%
Subordinated Debentures due March 1, 2001, 9.50% Subordinated Debentures due
June 14, 2000, Zero Coupon Subordinated Yen Notes due 1997-2004, Floating Rate
Subordinated Notes due March 2000, 10.20% Subordinated Debentures due March 15,
1999, 9.20% Subordinated Capital Notes due July 15, 1999, Subordinated Money
Market Capital Notes, Series A, B and C due 1999, 8% Subordinated Debentures due
March 15, 1997, 8 1/4% Subordinated Debentures due July 2, 1996, and the
Corporation's guaranty in respect of the 6.90% Subordinated Notes due March 1,
1995 of Bankers.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"indebtedness for money borrowed" as used in the definitions of "Other
Financial Obligations" and "Senior Indebtedness" means 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, and any deferred obligation for the payment of the purchase price
of property or assets.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and to
govern this instrument and any such supplemental indenture, respectively. The
term "Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
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"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Corporation, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
to or an employee of the Corporation.
"Original Issue Discount Security" means any Security that is issued at a
price lower than the amount payable at the Stated Maturity thereof and that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Other Financial Obligations" means, unless otherwise specified with respect
to any series of Securities pursuant to Section 301, all obligations of the
Corporation to make payment pursuant to the terms of financial instruments, such
as (i) securities contracts and foreign currency exchange contracts, (ii)
derivative instruments, such as swap agreements (including interest rate and
foreign exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange rate agreements, options,
commodity futures contracts, commodity options contracts, and (iii) financial
instruments similar to those referred to in (i) and (ii) above, other than (A)
obligations on account of Senior Indebtedness and (B) obligations on account of
indebtedness for money borrowed ranking pari passu with or subordinate to the
Securities.
"Outstanding", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Corporation) in trust or set aside and segregated in trust by
the Corporation (if the Corporation shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
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<PAGE>
(3) Securities as to which Defeasance has been effected pursuant to Section
1302; and
(4) Securities that have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security that shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units that shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided in Section 114 or, if different, as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in
such Clause), and (D) Securities owned by the Corporation or any other obligor
upon the Securities or any Affiliate of the Corporation or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities that the Trustee knows to be so owned shall be so
disregarded. Securities so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Corporation or any other obligor upon the Securities or
any Affiliate of the Corporation or of such other obligor.
"Paying Agent" means any Person authorized by the Corporation to pay the
principal of or any premium or interest on any Securities on behalf of the
Corporation.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under
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Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security that is registered as to principal
and interest, if any.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" of the Corporation means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301, the principal
of, premium, if any, and interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Corporation under applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on (a) all indebtedness for money borrowed, whether
outstanding on the date of execution of this Indenture or thereafter created,
assumed or incurred, except such indebtedness as is by its terms expressly
stated to be not superior in right of payment to the Securities or to rank pari
passu with the Securities or is identified in a Board Resolution or any
indenture supplemental hereto as not superior in right of payment or to rank
pari passu with the
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<PAGE>
Securities and (b) any deferrals, renewals or extensions of any such
indebtedness for money borrowed; provided, however, that Senior Indebtedness
shall not include any obligations on account of Existing Subordinated
Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Corporation or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Corporation to the Trustee to take any
action under any provision of this Indenture, the Corporation shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Corporation, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she
has made such examination or investigation as is necessary to enable such
individual to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when
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such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Corporation. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Corporation, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him or her the execution thereof. Where
such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Corporation
in reliance thereon, whether or not notation of such action is made upon such
Security.
The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Corporation may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Corporation from setting a new record date for any action for which
a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Corporation, at its own expense, shall
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<PAGE>
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Corporation's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Corporation in writing
and to each Holder of Securities of the relevant series in the manner set forth
in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto that sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard
to all or any part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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<PAGE>
Section 105. Notices, Etc., to Trustee and Corporation.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Corporation shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: .................,
or
(2) the Corporation by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Corporation addressed
to it at the address of its principal office specified in the first paragraph
of this instrument to the attention of the Office of the Secretary or at any
other address previously furnished in writing to the Trustee by the
Corporation.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter
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<PAGE>
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, and the Holders and, subject to Section 907, holders of Senior
Indebtedness and Entitled Persons in respect of Other Financial Obligations,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security that specifically states
that such provision shall apply in lieu of this Section)) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest
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<PAGE>
Payment Date or Redemption Date, or at Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
Section 114. Currency Conversion.
In the event that the principal amount of a Security is denominated in
units of a currency or currencies other than U.S. dollars or units of two or
more currencies, and it is necessary to determine as of any date the U.S.
dollar value of such Security, the principal amount of such Security shall be
deemed to be the amount of U.S. dollars that could have been purchased by the
principal amount of the units of the currency or currencies, or units of two or
more currencies, in which such Security is denominated based, except as
otherwise set forth in the Board Resolution or Supplemental Indenture
establishing such series of Securities, on the average of the mean of the
buying and selling spot rates in effect at 11:00 A.M., New York City time, in
The City of New York on the date of such determination or, if such date is not
a Business Day, on the next succeeding Business Day, quoted by three banks who
are members of the New York Clearing House Association (other than Bankers)
chosen by the Corporation.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Corporation and delivered to the Trustee at or prior to the delivery of the
Corporation Order contemplated by Section 303 for the authentication and
delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
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<PAGE>
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
..........................................................
..........................................................................
No. ......... $ ........
Bankers Trust New York Corporation, a corporation duly organized and existing
under the laws of the State of New York (herein called the "Corporation", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to
..............................................., or registered assigns, the
principal sum of ...................................... Dollars on
........................................................ [if the Security is to
bear interest prior to Maturity, insert -- , and to pay interest thereon from
............. or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ............ and
............ in each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment [if applicable,
insert -- , provided that any principal and premium, and any such installment of
interest, that is overdue shall bear interest at the rate of ...% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ....... or
....... (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any
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<PAGE>
overdue principal or premium shall be payable on demand. [Any such interest on
overdue principal or premium that is not paid on demand shall bear interest at
the rate of ......% per annum (to the extent that the payment of such interest
on interest shall be legally enforceable), from the date of such demand until
the amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable, insert
- -- any such] interest on this Security will be made at the office or agency of
the Corporation maintained for that purpose in ............, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Corporation payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated:
......................................................
By...................................................
Attest:
.........................................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of ............... (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Corporation and ..................., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities
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<PAGE>
thereunder of the Corporation, the Trustee[, the holders of Senior Debt] and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert -- , limited in aggregate
principal amount to $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., 19..], as a whole or in part, at
the election of the Corporation, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [if applicable, insert --
on or before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
------ ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Corporation, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning ............ of the years indicated,
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<PAGE>
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
------ ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Corporation may
not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Corporation (calculated in accordance with generally accepted financial
practice) of less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for the
redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Corporation otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinate and subject in right of payment to the prior payment in
full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, agrees that
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each holder of Senior Indebtedness, whether created or acquired before or after
the issuance of the Securities, shall be deemed conclusively to have relied on
such provisions in acquiring, or in continuing to hold, such Senior
Indebtedness. The Indenture also provides that if, upon the occurrence of
certain events of bankruptcy or insolvency relating to the Corporation, there
remains, after giving effect to such subordination provisions, any amount of
cash, property or securities available for payment or distribution in respect of
Securities (as defined in the Indenture, "Excess Proceeds"), and if, at such
time, any Entitled Person has not received payment in full of all amounts due or
to become due on or in respect of Other Financial Obligations, then such Excess
Proceeds shall first be applied to pay or provide for the payment in full of
such Other Financial Obligations before any payment or distribution may be made
in respect of Securities. This Security is also issued subject to the provisions
of the Indenture regarding payments to Entitled Persons in respect of Other
Financial Obligations. Each Holder of this Security, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination of this Security and payment of
Excess Proceeds as provided in the Indenture, and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. [For purposes of this Security,
Existing Subordinated Indebtedness includes, in addition to that indebtedness
listed in the Indenture, the following: [if subordinated securities have been
issued since the date of the Indenture, insert their names here].]
[If applicable, insert -- The Indenture contains provisions for defeasance at
any time of [the entire indebtedness of this Security] [or] [certain restrictive
covenants and Events of Default with respect to this Security] [, in each case]
upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of each series to be
affected under the Indenture
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<PAGE>
at any time by the Corporation and the Trustee with the consent of the Holders
of 66 2/3% in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Corporation with certain provisions of
the Indenture and certain past Defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
"Events of Default" include any of certain events involving a bankruptcy,
insolvency or reorganization of the Corporation, and do not include defaults in
the payment of principal of, or premium or interest on, this Security. As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $....... and any integral multiple thereof. As
provided in the
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Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities
evidenced thereby, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may be
registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
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This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
..........................................,
As Trustee
By.........................................
Authorized Officer
or, if an Authenticating Agent has been appointed pursuant to Section 614, in
substantially the following form:
..........................................,
As Trustee
By.........................................
Authenticating Agent
By.........................................
Authorized Officer
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906 or 1107
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and except for any Securities that, pursuant to Section 303, are deemed never
to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Corporation and, if other
than by a Board Resolution, the manner in which any election by the Corporation
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Corporation to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which any
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any premium
or interest on any Securities of the series shall be payable and, if other than
as set forth in Section 114, the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose, including for
purposes of the definition of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Corporation or the Holder
thereof, in one or
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more currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or currency units
in which the principal of or any premium or interest on such Securities as to
which such election is made shall be payable, the periods within which and the
terms and conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount that shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof that shall be
due and payable upon any Maturity other than the Stated Maturity or that shall
be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the principal
amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or
both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Corporation to defease such Securities shall be
evidenced;
(16) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends that shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last paragraph
of Section 305 in which any such Global Security may be exchanged in whole or
in part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than
the Depositary for such Global Security or a nominee thereof;
(17) any addition to or change in the Events of Default that applies to
any Securities of the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 502;
(18) the place or places at which, the period or periods within which, the
price or prices at which and the terms and conditions, if any, upon which the
Securities may be exchanged for or converted into the Corporation's common
stock or preferred stock;
(19) any addition to or change in the covenants set forth in Article Ten
that applies to Securities of the series;
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(20) whether any different subordination provisions, including a different
definition of any or all of the terms "Senior Indebtedness", "Entitled
Persons", "Existing Subordinated Indebtedness" or "Other Financial
Obligations", shall apply to the securities of such series; and
(21) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Corporation and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior Debt as
provided in Article Fourteen. The Securities shall not be superior in right of
payment to, and shall rank pari passu with, all indebtedness of the Corporation
issued pursuant to its Indenture, dated as of November 1, 1991, as amended by
the First Supplemental Indenture thereto, dated as of January 15, 1993 and as
further modified amended or supplemented from time to time, between the
Corporation and Marine Midland Bank, N.A., as Trustee, provided that the
provisions of Article Fourteen of such indenture are applicable to such
indebtedness, and [list additional pari passu subordinated indebtedness].
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Corporation shall bind the Corporation,
notwithstanding
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that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such offices
at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series executed by the
Corporation to the Trustee for authentication, together with a Corporation Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Corporation Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant to
a Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Corporation in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Corporation enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner that
is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 301 or the Corporation Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Security a
certificate of
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authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Corporation, and the Corporation shall deliver such Security to
the Trustee for cancellation as provided in Section 309, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Corporation Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Corporation in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Corporation shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Corporation shall cause to be kept at an office or agency to be
maintained by the Corporation in accordance with Section 1002 a register (the
register maintained in such office and in any other office or agency of the
Corporation in a Place of Payment being herein sometimes collectively referred
to as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Corporation shall provide for the registration of
Securities and of transfers of Securities. Bankers is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided.
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Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Corporation in a Place of Payment for that series,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Corporation shall execute, and the Trustee shall authenticate
and deliver, the Securities that the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Corporation, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed, by the
Holder thereof or the Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to
be redeemed in part, the Corporation shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
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(2) Notwithstanding any other provision in this Indenture, no Global Security
may be exchanged in whole or in part for Securities registered, and no transfer
of a Global Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Security or a nominee thereof
unless (A) such Depositary has notified the Corporation that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time it
has ceased to be a clearing agency registered under the Exchange Act at a time
when it is required to be so registered in order to act as Depositary, (B)
there shall have occurred and be continuing an Event of Default with respect to
such Global Security or (C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this purpose
as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued in
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Corporation
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Corporation or the Trustee that such Security has been acquired by a bona fide
purchaser, the Corporation shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge
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that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Corporation, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Corporation, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Corporation shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the
Corporation shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Corporation of
such Special Record Date and, in the name and at the expense of the
Corporation, shall cause notice of the proposed payment of such Defaulted
Interest and the Special
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Record Date therefor to be given to each Holder of Securities of such series
in the manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Corporation to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Corporation, the Trustee nor any agent of the Corporation or the Trustee shall
be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer
or exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Corporation may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder
that the Corporation may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder that the
Corporation has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Corporation Order.
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Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Corporation Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i)
Securities that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held
in trust by the Corporation and thereafter repaid to the Corporation or
discharged from such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Corporation,
and the Corporation, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such
deposit (in the case of Securities that have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Corporation has paid or caused to be paid all other sums payable
hereunder by the Corporation; and
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(3) the Corporation has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
The occurrence of any of the following events shall constitute an "Event of
Default" with respect to any particular series of Securities unless such event
is specifically deleted or modified in the Board Resolution or supplemental
indenture authorizing that series (whatever the reason for such Event of Default
and whether it shall be occasioned by the provisions of Article Fourteen or be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) a decree or order by a court having jurisdiction in the premises shall
have been entered adjudging the Corporation a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Corporation under the Federal Bankruptcy Act or any other similar applicable
Federal or State law, and such decree or order shall have continued
undischarged and unstayed for a period of 60 days; or a decree or order of a
court having jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the
Corporation or substantially all of its property (other than the appointment of
a conservator with respect to Bankers or any other depository institution
subsidiary of the Corporation insured by the Federal Deposit Insurance
Corporation or any successor
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agency), or for the winding up or liquidation of its affairs, shall have been
entered, and such decree or order shall have continued undischarged and
unstayed for a period of 60 days; or
(2) the Corporation shall institute proceedings to be adjudicated a
bankrupt, or shall consent to the filing of a bankruptcy proceeding against it,
or shall file a petition or answer or consent seeking reorganization under the
Federal Bankruptcy Act or any other similar applicable Federal or State law, or
shall consent to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of it or substantially all of its property (other than the
appointment of a conservator with respect to Bankers or any other depository
institution subsidiary of the Corporation insured by the Federal Deposit
Insurance Corporation or any successor agency), or shall make an assignment for
the benefit of creditors; or
(3) any other Event of Default provided with respect to Securities of that
series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the
Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Corporation (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Corporation and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Corporation has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series that have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities,
and
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(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Defaults with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series that have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Corporation covenants that if
(1) default is made in the payment of any interest or mandatory sinking fund
payment on any Security when such interest or mandatory sinking fund payment
becomes due and payable and such Default continues for a period of 30 days,
(2) default is made in the payment (other than any mandatory sinking fund
payment) of the principal of (or premium, if any, on) any Security when due and
payable, whether at the Maturity thereof or by declaration or otherwise, or
(3) default is made in the performance of any covenant of the Corporation in
this Indenture or in the terms of the Securities of a series (other than a
covenant a Default in whose performance is specifically addressed elsewhere in
this Section or in the terms of the Securities of such series), and such
Default continues for a period of 60 days after there has been given, by
registered or certified mail to the Corporation by the Trustee or to the
Corporation and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Securities of any affected series, a written notice
specifying such Default and requiring that it be remedied,
the Corporation will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If a Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the
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Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Corporation (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or any premium or
interest, upon presentation of
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the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 607; and
Second: Subject to Article Fourteen, to the payment of the amounts then due
and unpaid for principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and any premium and interest,
respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Corporation, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Default shall impair any such
right or remedy or constitute a waiver of any such Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
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Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall 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 Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to Holders not taking part in such direction, and
(3) the Trustee may take any other action deemed proper by the Trustee that
is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past Default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof that under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken, suffered or omitted by
it as Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in the Trust Indenture
Act; provided that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Corporation.
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Section 515. Waiver of Usury, Stay or Extension Laws.
The Corporation covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Corporation (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a Default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
Default as and to the extent provided by the Trust Indenture Act.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
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(2) any request or direction of the Corporation mentioned herein shall be
sufficiently evidenced by a Corporation Request or Corporation Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Corporation, personally or by agent or
attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of Securities or the proceeds thereof.
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Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Corporation with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed with the Corporation.
Section 607. Compensation and Reimbursement.
The Corporation agrees
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series [or a trustee under -- list
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here any prior indentures between the Corporation and the Trustee that have not
been satisfied and discharged and that may be excluded by the proviso to
Section 310(b)(1) of the Trust Indenture Act].
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee with respect to the Securities of any series shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Corporation. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Corporation.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request
therefor by the Corporation or by any Holder who has been a bona fide Holder of
a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail
to resign after written request therefor by the Corporation or by any such
Holder, or
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(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Corporation by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of such Holder and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Corporation, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Corporation and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Corporation. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Corporation or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Corporation shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation and to the retiring Trustee an
instrument accepting such
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appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Corporation or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Corporation, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and that (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Corporation shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
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Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Corporation.
If and when the Trustee shall be or become a creditor of the Corporation (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Corporation (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities that shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue and
upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such
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Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent that shall be acceptable to the Corporation and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
Bankers is initially designated as the Authenticating Agent for the
Securities.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Corporation
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders.
The Corporation will furnish or cause to be furnished to the Trustee, not
more than 60 days after every other quarter-annual interest payment or each
semi-annual interest payment, as the case may be, where such interest payments
are to be made, and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Corporation of any such request, a list in
such form as the Trustee may reasonably require containing all information in
the possession or control of the Corporation, or any of its Paying Agents other
than the Trustee, as to the names and addresses of the Holders
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of Securities obtained since the date as of which the next previous list, if
any, was furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Corporation and the Trustee that neither the Corporation nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Corporation. The
Corporation will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Corporation.
The Corporation shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same are so required to be filed with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Corporation May Consolidate, Etc., Only on Certain Terms.
The Corporation covenants that it will not merge or consolidate with any
other corporation or sell or convey all or substantially all of its assets to
any Person, firm or corporation, except that the Corporation may merge or
consolidate with, or sell or convey all or substantially all of its assets to,
any other corporation, provided that (i) either the Corporation shall be the
continuing corporation, or the successor corporation (if other than the
Corporation) shall be a corporation organized and existing under the laws of the
United States of America or a State thereof and such corporation shall expressly
assume the due and punctual payment of the principal of (and premium, if any)
and interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Corporation by supplemental indenture in
form satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, and (ii) the Corporation or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
condition.
Section 802. Successor Substituted.
Upon any consolidation of the Corporation with, or merger of the Corporation
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Corporation substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Corporation is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Corporation under this Indenture with the same effect as if such
successor Person had been named as the Corporation herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Corporation, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or
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more indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the Corporation and the
assumption by any such successor of the covenants of the Corporation herein and
in the Securities; or
(2) to add to the covenants of the Corporation for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Corporation; or
(3) to add any additional Events of Default for the benefit of the Holders of
all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as permitted
by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 611; or
(9) subject to Section 907, to add to, change or eliminate any of the
provisions of Article Fourteen in respect of one or more series of Securities,
including Outstanding Securities, provided that any such addition, change or
elimination shall not adversely affect the interests of the Holders of
Outstanding Securities of any series in any material respect; or
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(10) to cure any ambiguity, to correct or supplement any provision herein
that may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (10) shall
not adversely affect the interests of the Holders of Securities of any series.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Corporation and
the Trustee, the Corporation, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security or any other Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
Defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1006, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes
in this Section and Section 1006, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8).
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A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or that modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Corporation, to any such supplemental indenture
may be prepared and executed by the Corporation and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
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Section 907. Subordination Unimpaired.
The provisions of Section 111 notwithstanding, no provision in any
supplemental indenture that affects the superior position of the holders of
Senior Indebtedness shall be effective against any holder of Senior
Indebtedness, unless such holder shall have consented thereto. Notwithstanding
any provision in this Indenture or otherwise, the rights of Entitled Persons in
respect of Other Financial Obligations under this Indenture and otherwise in
respect of the Securities or any series of the Securities may, at any time and
from time to time, be modified in any respect or eliminated without the consent
of any Entitled Person in respect of Other Financial Obligations.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Corporation will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Corporation in respect of the Securities of that series and this
Indenture may be served. The Corporation will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Corporation shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Corporation hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Corporation may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Corporation of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such
purposes. The Corporation will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
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Section 1003. Money for Securities Payments to Be Held in Trust.
If the Corporation shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Corporation shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Corporation will promptly notify the Trustee of its action or failure so to act.
The Corporation will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any Default by the Corporation (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Corporation Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Corporation, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Corporation on Corporation Request, or (if then held by the
Corporation) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Corporation for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Corporation as
trustee thereof, shall thereupon cease.
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Section 1004. Statement by Officers as to Default.
The Corporation will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Corporation ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Corporation is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Corporation
shall be in default, specifying all such Defaults and the nature and status
thereof of which they may have knowledge.
Section 1005. Existence.
Subject to Article Eight, the Corporation will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Corporation shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Corporation and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1006. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Corporation may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(18), 901(2)
or 901(7) for the benefit of the Holders of such series or in any of Sections
1001 to 1005, inclusive, if before the time for such compliance the Holders of
at least 66 2/3% in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Corporation and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series that are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Corporation of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Corporation shall, at least 60
days prior to the Redemption Date fixed by the Corporation (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Corporation shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all
the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities that has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at such Holder's address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting of
more than a single Security are to be redeemed, the identification (and, in the
case of partial redemption of any such Securities, the principal amounts) of
the particular Securities to be redeemed and, if less than all the Outstanding
Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation and shall be
irrevocable.
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Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Corporation shall deposit with the Trustee
or with a Paying Agent (or, if the Corporation is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
that are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Corporation
shall default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Corporation at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Corporation or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Corporation and the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Corporation shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series
and of like tenor, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Corporation (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series that have been redeemed either at the election of the
Corporation pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Corporation will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, that is to be satisfied by payment of cash and the portion thereof, if
any, that is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 45 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be
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given in the name of and at the expense of the Corporation in the manner
provided in Section 1104. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Corporation's Option to Effect Defeasance or Covenant Defeasance.
The Corporation may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Corporation's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Corporation shall be deemed to have been discharged from its obligations, and
the provisions of Article Fourteen shall cease to be effective, with respect to
such Securities as provided in this Section on and after the date the conditions
set forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Corporation shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Corporation, shall execute proper instruments acknowledging the
same), subject to the following, which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the
Corporation's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Corporation may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 1303 applied to such Securities.
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Section 1303. Covenant Defeasance.
Upon the Corporation's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Corporation shall be released from its obligations under Section 801(3) and
any covenants provided pursuant to Section 301(18), 901(2) or 901(7) for the
benefit of the Holders of such Securities, and (2) the provisions of Article
Fourteen shall cease to be effective, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Corporation may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in or Article
Fourteen, whether directly or indirectly by reason of any reference elsewhere
herein to such Article or by reason of any reference in such Article to any
other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Corporation shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefits of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations that through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an amount,
or (C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any premium and interest on
such Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S. Government
Obligation" means (x) any security that is (i) a direct obligation of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation that is specified in Clause (x) above and held by such
bank for the account of the holder of such
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depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation that is so specified and held,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any Securities
or any series of Securities, as the case may be, the Corporation shall have
delivered to the Trustee an Opinion of Counsel stating that (A) the Corporation
has received from, or there has been published by, the Internal Revenue Service
a ruling or (B) since the date of this instrument, there has been a change in
the applicable Federal income tax law, in either case (A) or (B) to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any Securities
or any series of Securities, as the case may be, the Corporation shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
of such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.
(4) The Corporation shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other Securities
of the same series, if then listed on any securities exchange, will be delisted
as a result of such deposit.
(5) No event that is, or after notice or lapse of time or both would become,
an Event of Default with respect to such Securities or any other Securities
shall have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 501(1) and (2), at any time on
or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Corporation is a party or by which it is bound.
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(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act unless such trust shall be registered under such
Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Indebtedness shall have
occurred and be continuing, (B) no event of default with respect to any Senior
Debt shall have resulted in such Senior Debt becoming, and continuing to be,
due and payable prior to the date on which it would otherwise have become due
and payable (unless payment of such Senior Debt has been made or duly provided
for), and (C) no other event of default with respect to any Senior Debt shall
have occurred and be continuing permitting (after notice or lapse of time or
both) the holders of such Senior Debt (or a trustee on behalf of such holders)
to declare such Senior Debt due and payable prior to the date on which it would
otherwise have become due and payable.
(10) The Corporation shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Corporation acting as
its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust shall not be subject to the provisions of Article
Fourteen.
The Corporation shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon Corporation Request any
money or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities that, in the opinion of a nationally recognized firm
of independent public
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accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance
with this Article with respect to any Securities by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Corporation has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Corporation
makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Corporation shall
be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
ARTICLE FOURTEEN
Subordination of Securities
Section 1401. Securities Subordinate to Senior Indebtedness.
The subordination provisions in this Article shall apply to the Securities of
any series to the extent established or determined with respect to the
Securities of such series pursuant to Section 301.
The Corporation covenants and agrees, and each Holder of a Security of any
series, by such Holder's acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Securities and the payment of the principal of,
premium, if any, and interest on each and all of the Securities of such series
are hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness.
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Corporation or to its assets, or (b) any
liquidation, dissolution or other winding up of the Corporation whether
voluntary or involuntary and whether or
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not involving solvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of the Corporation,
then and in any such event the holders of Senior Indebtedness shall be entitled
to receive payment in full of all amounts due or to become due on or in respect
of all Senior Indebtedness, or provision shall be made for such payment in money
or money's worth, before the Holders of the Securities are entitled to receive
any payment on account of principal of or premium, if any, or interest on the
Securities, and to that end the holders of Senior Indebtedness shall be entitled
to receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, that may be
payable or deliverable in respect of the Securities in any such case,
proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this Section,
the Trustee or Holder of any Security of any series shall have received any
payment or distribution of assets of the Corporation of any kind or character,
whether in cash, property or securities, before all Senior Indebtedness is paid
in full or payment thereof provided for, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered by the Trustee or the Holder, as
the case may be, forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Corporation for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Corporation as reorganized
or readjusted, or securities of the Corporation or any other corporation
provided for by a plan of reorganization or readjustment that are subordinated
in right of payment to all Senior Indebtedness that may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Corporation with, or the merger of the Corporation into,
another Person or the liquidation or dissolution of the Corporation following
the conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Corporation for the purposes of this Section if the
Person formed by such consolidation or into which the Corporation is merged or
the Person that acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
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Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior Indebtedness
shall be entitled to receive payment in full of all amounts due on or in respect
of all Senior Indebtedness, or provision shall be made for such payment in money
or money's worth, before the Holders of the Securities of such series are
entitled to receive any payment of principal of or premium, if any, or interest
on the Securities or on account of the purchase or other acquisition of
securities of such series; provided, however, that if, as specified as
contemplated by Section 301, Article Twelve is applicable to any series of
Securities nothing in this Section shall prevent the satisfaction of any sinking
fund payment in accordance with Article Twelve by delivering and crediting
pursuant to Section 1202 securities of such series that have been acquired (upon
redemption or otherwise) prior to such declaration of acceleration.
In the event that, notwithstanding the foregoing, the Corporation shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered by the Trustee or the Holder, as the case may be, forthwith to the
Corporation.
The provisions of this Section shall not apply to any payment with respect to
which Section 1402 would be applicable.
Section 1404. No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in the payment
of principal of or premium, if any, or interest on any Senior Indebtedness
beyond any applicable grace period with respect thereto, or in the event that
any event of default with respect to any Senior Indebtedness shall have occurred
and be continuing permitting the holders of such Senior Indebtedness (or a
trustee on behalf of the holders thereof) to declare such Senior Indebtedness
due and payable prior to the date on which it would otherwise have become due
and payable, unless and until such event of default shall have been cured or
waived or shall have ceased to exist and such acceleration shall have been
rescinded or annulled, or (b) in the event any judicial proceeding shall be
pending with respect to any such default in payment, or event of default, then
no payment shall be made by the Corporation on account of principal of, or
premium, if any, or interest on the Securities of any series or on account of
the purchase or other acquisition of Securities of any series; provided,
however, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Twelve by delivering and
crediting pursuant to Section 1202 Securities of such series that have been
acquired (upon redemption or otherwise) prior to such default in payment or
event of default.
In the event that, notwithstanding the foregoing, the Corporation shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing
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provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered by the Trustee or the Holder, as the case may be, forthwith to the
Corporation.
The provisions of this Section shall not apply to any payment with respect to
which Section 1402 would be applicable.
Section 1405. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any of
the Securities shall prevent (a) the Corporation, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Corporation referred to in Section 1402 or under the
conditions described in Section 1403 or 1404, from making payments at any time
of principal of or premium, if any, or interest on the Securities, or (b) the
application by the Trustee or any Paying Agent of any moneys deposited with it
hereunder to the payment of or on account of the principal of or premium, if
any, or interest on the Securities and the retention by the Holders of any
moneys so received if, at the time of such payment, the Trustee or such Paying
Agent did not have knowledge that such payment would have been prohibited by the
provisions of this Article.
Section 1406. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities of any series shall be subrogated (equally and ratably with the
holders of all Existing Subordinated Indebtedness and all indebtedness of the
Corporation that by its express terms is subordinated to indebtedness of the
Corporation to substantially the same extent as the Securities or the Existing
Subordinated Indebtedness are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of, premium, if any, and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by Holders of the Securities or the Trustee, shall, as among the Corporation,
its creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment or distribution by the Corporation to or
on account of the Senior Indebtedness.
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Section 1407. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness (and, in the case of Section 1415, the
holders of Existing Subordinated Indebtedness and Entitled Persons in respect of
Other Financial Obligations) on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as among the Corporation, its creditors other than holders of
Senior Indebtedness, Entitled Persons in respect of Other Financial Obligations
and the Holders of the Securities, the obligation of the Corporation, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Indebtedness and the rights under Section 1415 of
Entitled Persons in respect of Other Financial Obligations, is intended to rank
equally with all other general obligations of the Corporation), to pay to the
Holders of the Securities the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; (b) affect the relative rights against the Corporation of the
Holders of the Securities and creditors of the Corporation other than the
holders of Senior Indebtedness and of Existing Subordinated Indebtedness and of
Entitled Persons in respect of Other Financial Obligations; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness, and
under Section 1415 of Entitled Persons in respect of Other Financial
obligations, to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 1408. Authorization of Trustee to Effectuate Subordination of
Securities.
Each Holder of a Security, by such Holder's acceptance thereof, authorizes and
expressly directs the Trustee on such Holder's behalf to take such action as may
be necessary or appropriate to effectuate the subordination and payment provided
in this Article and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
Section 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness and
Entitled Persons in respect of Other Financial Obligations, as the case may be,
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Corporation or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Corporation with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness and Entitled Persons in respect of Other
Financial Obligations,
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as the case may be, may, at any time and from time to time, without the consent
of or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Corporation and any other Person.
Section 1410. Notice to Trustee; Trustee Not Charged with Knowledge of
Prohibition.
The Corporation shall give prompt written notice to the Trustee of any fact
known to the Corporation that would prohibit the making of any payment or
distribution to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Corporation or a holder of Senior Indebtedness
or from any trustee therefor or from any Entitled Persons in respect of Other
Financial Obligations, and, prior to the receipt of any such written notice, the
Trustee shall be entitled in all respects to assume that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee therefor) or an Entitled Person in respect of Other Financial
Obligations to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor) or an Entitled Person in respect of other
Financial Obligations. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness or an Entitled Person in respect of Other
Financial Obligations to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
or other Financial Obligations held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment or distribution to
such Person pending judicial determination as to the right of such Person to
receive such payment.
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Section 1411. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Corporation referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Corporation and the Entitled Persons in respect of
Other Financial Obligations, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
Section 1412. No Fiduciary Duty to Holders of Senior Indebtedness of
Corporation.
The Trustee shall not be deemed to owe any duty to the holders of Senior
Indebtedness of the Corporation or Entitled Persons in respect of Other
Financial Obligations, except as provided in this Article.
Section 1413. Right of Trustee to Hold Senior Indebtedness of Corporation.
The Trustee shall be entitled to all of the rights set forth in this Article
in respect of any Senior Indebtedness of the Corporation at any time held by it
to the same extent as any other holder of such Senior Indebtedness, and nothing
in this Indenture shall be construed to deprive the Trustee of any of its rights
as such holder.
Section 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Corporation and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
Section 1413 shall not apply to the Corporation or any Affiliate of the
Corporation if it or such Affiliate acts as Paying Agent.
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Section 1415. Securities to Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases.
Subject to the provisions of this Section and to any provisions established
or determined with respect to Securities of any series pursuant to Section 301,
the Securities shall rank pari passu in right of payment with the Existing
Subordinated Indebtedness.
Upon the occurrence of any of the events specified in clauses (a), (b) and
(c) of the first paragraph of Section 1402, the provisions of that Section and
the corresponding provisions of each indenture or other instrument or document
establishing or governing the terms of any Existing Subordinated Indebtedness
shall be given effect on a pro rata basis to determine the amount of cash,
property or securities that may be payable or deliverable as between the holders
of Senior Indebtedness, on the one hand, and the Holders of Securities and
holders of Existing Subordinated Indebtedness, on the other hand.
If, after giving effect to the provisions of Section 1402, Section 1406 and
the respective corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Subordinated
Indebtedness on such pro rata basis, any amount of cash, property or securities
shall be available for payment or distribution in respect of the Securities
("Excess Proceeds"), and, if at such time, any Entitled Persons in respect of
Other Financial Obligations shall not have received payment in full of all
amounts due or to become due on or in respect of such Other Financial
Obligations (and provision shall not have been made for such payment in money or
money's worth), then such Excess Proceeds shall first be applied (ratably with
any amount of cash, property or securities available for payment or distribution
in respect of any other indebtedness of the Corporation that by its express
terms provides for the payment over of amounts corresponding to Excess Proceeds
to Entitled Persons in respect of Other Financial Obligations) to pay or provide
for the payment of the Other Financial Obligations remaining unpaid, to the
extent necessary to pay all Other Financial Obligations in full, after giving
effect to any concurrent payment or distribution to or for Entitled Persons in
respect of Other Financial Obligations. Any Excess Proceeds remaining after the
payment (or provision for payment) in full of all Other Financial Obligations
shall be available for payment or distribution in respect of the Securities.
In the event that, notwithstanding the foregoing provisions of the preceding
paragraph of this Section, the Trustee or Holder of any Security shall have
received any payment or distribution of assets of the Corporation of any kind or
character, whether in cash, property or securities, before all Other Financial
Obligations are paid in full or payment thereof duly provided for, and if such
fact shall, at or prior to the time of such payment or distribution have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event, subject to any obligation that the Trustee or such Holder may have
pursuant to Section 1402, such payment or distribution shall be paid over or
delivered by the Trustee or the Holder, as the case may be, forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Corporation for
payment in accordance with the previous paragraph of this Section.
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Subject to the payment in full of all Other Financial Obligations, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Corporation that by its express terms
provides for the payment over of amounts corresponding to Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations and is entitled to
like rights of subrogation) to the rights of the Entitled Persons in respect of
Other Financial Obligations to receive payments and distributions of cash,
property and securities applicable to the Other Financial Obligations until the
principal of and interest on the Securities shall be paid in full. For purposes
of such subrogation, no payments or distributions to Entitled Persons in respect
of Other Financial obligations of any cash, property or securities to which
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Section, and no payments over pursuant to the provisions of
this Section to Entitled Persons in respect of Other Financial Obligations by
Holders of Securities or the Trustee, shall, as among the Corporation, its
creditors other than Entitled Persons in respect of Other Financial Obligations
and the Holders of Securities be deemed to be a payment or distribution by the
Corporation to or on account of the Other Financial Obligations.
The provisions of subsections the third, fourth and fifth paragraphs of this
Section are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the Entitled
Persons in respect of Other Financial Obligations, on the other hand, after
giving effect to the rights of the holders of Senior Indebtedness, as provided
in this Article. Nothing contained in the third, fourth and fifth paragraphs of
this Section is intended to or shall affect the relative rights against the
Corporation of the Holders of the Securities and (1) the holders of Senior
Indebtedness, (2) the holders of Existing Subordinated Indebtedness other than
holders of indebtedness that by its express terms provides for the payment over
of amounts corresponding to Excess Proceeds to Entitled Persons in respect of
Other Financial Obligations or (3) other creditors of the Corporation other than
Entitled Persons in respect of Other Financial obligations.
_____________________________
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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<PAGE>
In Witness Whereof, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BANKERS TRUST NEW YORK
CORPORATION
By......................................
Attest:
......................................
......................................
By......................................
Attest:
......................................
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<PAGE>
State of New York )
) ss.:
County of New York )
On the .... day of ..........., 199.., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is ............................ of Bankers Trust New York
Corporation, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
...............................................
State of New York )
) ss.:
County of New York )
On the .... day of ..........., 199., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is ............................ of
................................., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
...............................................
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<PAGE>
EXHIBIT 4.6
================================================================================
DEBT WARRANT AGREEMENT
dated as of ________ __, 199__
between
BANKERS TRUST NEW YORK CORPORATION
and
[NAME OF WARRANT AGENT], as Warrant Agent
---------------------------
Debt Warrants
Expiring ________ __, 199__
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
PARTIES....................................................... 1
RECITALS...................................................... 1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants;
Book-Entry Procedures; Successor
Depository..................................... 2
Section 1.02. Form; Denominations; Execution,
Countersignature, Delivery and
Dating of Global Warrant
Certificates................................... 4
Section 1.03. Definitive Warrant Certificates................ 6
Section 1.04. Maintenance of Warrant Register;
Registration of Transfers and
Exchanges of Global Warrant
Certificates................................... 8
Section 1.05. Mutilated, Destroyed, Lost and
Stolen Warrant Certificates.................... 10
Section 1.06. Cancellation of Warrants....................... 11
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01. Exercise Price................................. 12
Section 2.02. Duration of Warrants; Method of
Exercise; Minimum [and Maximum]
Exercise Amounts; Notice of
Exercise....................................... 13
Section 2.03. Exercise of Warrants........................... 15
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders........................... 18
Section 3.02. Holder or Owner of Warrant May
Enforce Rights................................. 19
<PAGE>
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent.................................. 19
Section 4.02. Certain Duties of the Warrant
Agent.......................................... 20
Section 4.03. Conditions of Warrant Agent's
Obligations.................................... 20
Section 4.04. Compliance With Applicable Laws................ 23
Section 4.05. Corporate Warrant Agent Required;
Eligibility.................................... 23
Section 4.06. Resignation and Removal;
Appointment of Successor....................... 23
Section 4.07. Acceptance of Appointment by
Successor...................................... 25
Section 4.08. Merger, Conversion, Consolidation
or Succession to Business...................... 25
ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the
Corporation and Sales, Leases and
Conveyances Permitted Subject to
Certain Conditions............................. 26
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Debt Warrant
Agreement...................................... 27
Section 6.02. Form of Approval of Supplemental
Agreements by Owners or Holders................ 29
Section 6.03. Effect of Supplemental Agreements.............. 29
Section 6.04. Reference in Warrants to
Supplemental Agreements........................ 29
ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Delivery of Prospectus......................... 29
Section 7.02. Governmental Approvals......................... 29
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<PAGE>
Section 7.03. Delivery of Warrant Debt
Securities..................................... 30
Section 7.04. Maintenance of Office or Agency;
Unclaimed Moneys............................... 30
Section 7.05. Corporate Existence............................ 31
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants................. 31
Section 8.02. Payment of Taxes............................... 31
Section 8.03. Notices and Demands to the
Corporation and Warrant Agent.................. 31
Section 8.04. Addresses for Notices.......................... 32
Section 8.05. Notices to Owners and Holders.................. 32
SECTION 8.06. GOVERNING LAW.................................. 32
Section 8.07. Benefits of Debt Warrant Agreement............. 32
Section 8.08. Successors and Assigns......................... 32
Section 8.09. Debt Warrant Agreement and Warrants
Solely Corporate Obligations................... 33
Section 8.10. Severability................................... 33
Section 8.11. Headings....................................... 33
Section 8.12. Counterparts................................... 33
Section 8.13. Inspection of Debt Warrant
Agreement...................................... 33
EXHIBITS
Exhibit A Form of Warrant Certificate
Exhibit B-1 Form of Exercise Notice from
Depository Participant
Exhibit B-2 Form of Exercise Notice from Holder
of Definitive Warrant Certificate
Exhibit C Form of Rejection Notice
Exhibit D Form of Confirmation of Exercise
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<PAGE>
DEBT WARRANT AGREEMENT
DEBT WARRANT AGREEMENT, dated as of ________ __, 199__ (as modified,
amended or supplemented, this "Agreement"), between BANKERS TRUST NEW YORK
CORPORATION, a corporation organized and existing under the laws of the State of
New York (the "Corporation"), and [NAME OF WARRANT AGENT], a [banking
association] [corporation] organized and existing under the laws of
______________, as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Corporation has entered into an Indenture, [dated as of
November 1, 1991, as amended by the First Supplemental Indenture, dated as of
September 1, 1993 (as so amended, and as further amended from time to time, the
"Indenture"), between the Corporation and The Chase Manhattan Bank (National
Association)] [dated as of April 1, 1992, as amended by the First Supplemental
Indenture, dated as of January 15, 1993 (as so amended, and as further amended
from time to time, the "Indenture"), between the Corporation and Marine Midland
Bank, N.A.] [dated as of ________ __, 1994 (as amended from time to time, the
"Indenture"), between the Corporation and ______________], as trustee (such
trustee, and any successors to such trustee, the "Trustee"), providing for the
issuance from time to time of its unsecured and [unsubordinated] [subordinated]
debentures, notes or other evidences of [senior] [subordinated] indebtedness, to
be issued in one or more series as provided in the Indenture;
WHEREAS, the Corporation proposes to sell [[title of Debt Securities
being offered (if Debt Securities and Warrants are to be offered)] (the "Offered
Debt Securities") with] warrants (each, a "Warrant") representing the right to
purchase [title of Debt Securities purchasable through exercise of Warrants] the
"Warrant Debt Securities"); and
WHEREAS, the Corporation desires the Warrant Agent to act on behalf of
the Corporation, and the Warrant Agent is willing so to act, in connection with
the issuance, transfer, exchange, exercise and cancellation of the [Offered Debt
Securities and the] Warrants, and the Corporation desires to set forth herein,
among other things, the provisions of the Warrants and the terms and conditions
under which they may be issued, transferred, exchanged, exercised and canceled;
<PAGE>
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants; Book-Entry
Procedures; Successor Depository. (a) Each Warrant shall represent the right,
subject to the provisions contained herein and therein, to purchase Warrant Debt
Securities in the aggregate principal amount of $_____________ at the Exercise
Price set forth in Section 2.01. [If Debt Securities and Warrants are to be
offered together -- Warrants shall [initially] be issued in units with the
Offered Debt Securities and shall not be separately transferable [before
_____________, 19__ (the "Detachable Date")]. Each such unit shall consist of
$_____ aggregate principal amount of the Offered Debt Securities and _______
Warrants.] No Warrant shall entitle any registered holder thereof (each, a
"Holder") or any Owner (as defined in Section 1.01(c)) to any of the rights of a
registered holder or owner of the Warrant Debt Securities, including, without
limitation, the right to receive the payment of principal of, premium, if any,
or interest, if any, on the Warrant Debt Securities or to enforce any of the
covenants in the Warrant Debt Securities or the Indenture[, except to the extent
that the consent of the Holders or Owners of Warrants is expressly required by
the terms of the Warrant Debt Securities for certain modifications of the
Warrant Debt Securities]. [No amendment or modification of the Indenture or the
forms of the Warrant Debt Securities that would adversely affect the rights of
the Holders or Owners of Warrants shall be made prior to the issuance of any
Warrant Debt Securities without the written consent of the Holders or Owners of
Warrants representing the right to purchase at least a majority of the maximum
principal amount of the Warrant Debt Securities that may be issued pursuant to
Warrants that may be issued pursuant to this Agreement.]
(b) The Warrants shall constitute direct, unconditional and
unsecured obligations of the Corporation.
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<PAGE>
(c) The Warrants shall initially be issued in book-entry form and
represented by one or more global certificates (each, a "Global Warrant
Certificate"). Owners of beneficial interests in a Global Warrant Certificate
(each, an "Owner") shall not be entitled to receive definitive certificates
evidencing the Warrants; provided, however, that the Corporation shall issue
Warrants in definitive form (each, a "Definitive Warrant Certificate", and with
the Global Warrant Certificates, the "Warrant Certificates") in exchange for a
Global Warrant Certificate if (i) the Depository (as defined in Section 1.01(d))
has notified the Corporation that it is unwilling or unable to continue as
Depository for such Global Warrant Certificate or if at any time it has ceased
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when it is required to be so registered in order to act as
Depository, and a successor Depository is not appointed by the Corporation
within 90 days, (ii) the Corporation at any time shall determine to have the
Warrants represented by Definitive Warrant Certificates and shall execute and
deliver to the Warrant Agent a written order signed in the name of the
Corporation by its Chairman of the Board, its Vice Chairman, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary (each such order, a "Corporation Order") stating that the
Corporation wishes to issue Warrants in definitive form in exchange for such
Global Warrant Certificate, or (iii) there shall have occurred and be continuing
a default by the Corporation in respect of its obligations with respect to the
Warrants. In any such instance, and in accordance with the provisions of this
Agreement, each Owner shall be entitled to have registered in its name the
number of Warrants in definitive form equivalent to such Owner's beneficial
interest in such Global Warrant Certificate and shall be entitled to physical
delivery of Definitive Warrant Certificates representing such Warrants by the
Depository Participant or Indirect Participant (each as defined in Section
1.01(d)) through which such Owner's beneficial interest is reflected.
(d) Each Global Warrant Certificate shall initially be registered in
the name of, and the Holder of each Warrant represented by such Global Warrant
Certificate shall be, [The Depository Trust Company] or its agent (the
"Depository", which term shall include any nominee of the Depository and any
successor depository selected by the Corporation as provided in Section
1.01(e)), and shall be deposited with the Depository or its agent for credit to
the accounts of the Depository Participants as shown on the records of the
Depository from time to time. The Warrant holdings of Depository Participants
shall be recorded on the
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<PAGE>
books of the Depository. The Warrant holdings of Indirect Participants and of
Owners who are customers of Depository Participants shall be reflected on the
books and records of such Depository Participants and shall not be known to the
Warrant Agent, the Corporation or the Depository. The Warrant holdings of
Owners who are customers of Indirect Participants shall be reflected on the
books and records of such Indirect Participants and shall not be known to the
Warrant Agent, the Corporation, the Depository Participants or the Depository.
Neither the Corporation nor the Warrant Agent shall have any responsibility or
liability for any aspect of the records relating to beneficial ownership
interests in a Global Warrant Certificate or for maintaining, supervising or
reviewing any records relating to any such beneficial ownership interest. As
used herein, the term "Depository Participant" shall include any participant in
the Depository's system and, for purposes of this Agreement, shall also mean any
participant in the book-entry system of any successor Depository. As used
herein, the term "Indirect Participant" shall include any other bank, securities
dealer, trust company or other Person (as defined below) that clears or
maintains a custodial relationship with a Depository Participant, either
directly or indirectly. As used herein, the term "Person" shall include any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
(e) The Corporation may from time to time select a new Person to act
as Depository and, if such selection is made, the Corporation shall promptly
give the Warrant Agent and the existing Depository notice to such effect
identifying the new Depository. As promptly as practicable thereafter, the
Depository shall deliver each Global Warrant Certificate then held by it to the
Warrant Agent, and the Warrant Agent shall register the transfer of such Global
Warrant Certificate to the new Depository as provided in Section 1.04.
Appropriate changes may be made in each Global Warrant Certificate, and in the
notice of exercise and the related notices delivered in connection with an
exercise or deemed exercise of Warrants to reflect the selection of the new
Depository.
Section 1.02. Form; Denominations; Execution, Countersignature,
Delivery and Dating of Global Warrant Certificates. (a) At any time and from
time to time after the execution and delivery of this Agreement, the Corporation
may deliver one or more Global Warrant Certificates, each representing any
integral number of Warrants [not exceeding ________________ Warrants originally
-4-
<PAGE>
issued,] executed by the Corporation as set forth in Section 1.02(b), to the
Warrant Agent for countersignature, together with a Corporation Order for the
countersignature and delivery of such Warrants, and the Warrant Agent shall
manually countersign and deliver such Warrants in accordance with such
Corporation Order. During such time as Warrants shall be represented by Global
Warrant Certificates, the Corporation may issue additional Warrants in
accordance with the terms of this Agreement either by issuing an additional
Global Warrant Certificate or by issuing a new Global Warrant Certificate in
exchange for the existing Global Warrant Certificate, provided that any such
exchange shall conform to the requirements set forth in Section 1.04(f).
(b) Each Global Warrant Certificate, whenever issued, shall be in
registered form substantially in the form of Exhibit A, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. Each Global Warrant Certificate shall be printed,
lithographed, typewritten, mimeographed or engraved on steel engraved borders or
otherwise reproduced in any other manner as may be approved by the officers
executing the same (such execution to be conclusive evidence of such approval)
and may have imprinted or otherwise reproduced thereon such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the officers of the Corporation executing the same may approve (such execution
to be conclusive evidence of such approval) and that are not inconsistent with
the provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto, or with any rule or
regulation of any securities exchange on which the Warrants may be listed, or of
the Depository, or to conform to usage. Each Global Warrant Certificate shall
be signed on behalf of the Corporation by its Chairman of the Board, its Vice
Chairman, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any such officer on any Global Warrant
Certificate may be either manual or facsimile. Typographical and other minor
errors or defects in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of any Global Warrant
Certificate that has been duly countersigned and delivered by the Warrant Agent.
(c) No Global Warrant Certificate shall be entitled to any benefit
under this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, unless such Global Warrant Certificate
-5-
<PAGE>
has been countersigned by the Warrant Agent. Such signature by the Warrant
Agent upon any Global Warrant Certificate executed by the Corporation shall be
conclusive evidence, and the only evidence, that such Global Warrant Certificate
so countersigned has been duly issued hereunder.
(d) Any Global Warrant Certificate bearing the manual or facsimile
signatures of individuals who were at the time of such signature the proper
officers of the Corporation shall bind the Corporation, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
countersignature and delivery of such Global Warrant Certificate or did not hold
such offices at the date of such Global Warrant Certificate.
(e) Each Global Warrant Certificate shall be dated the date of its
countersignature.
Section 1.03. Definitive Warrant Certificates. (a) Any Definitive
Warrant Certificate issued in accordance with Section 1.01(c), whenever issued,
shall be in registered form substantially in the form of Exhibit A, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement or necessary or desirable for individual
Definitive Warrant Certificates, provided that each such Definitive Warrant
Certificate shall have imprinted on the reverse thereof the Exercise Notice
substantially in the form of Exhibit B-2. Each Definitive Warrant Certificate
may represent any integral number of Warrants [not exceeding ________________
Warrants originally issued], shall be printed, lithographed, typewritten,
mimeographed or engraved on steel engraved borders or otherwise reproduced in
any other manner as may be approved by the officers executing the same (such
execution to be conclusive evidence of such approval), and may have imprinted or
otherwise reproduced thereon such letters, numbers or other marks of
identification or designation and such legends or endorsements as the officers
of the Corporation executing the same may approve (such execution to be
conclusive evidence of such approval) and that are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto, or with any rule or
regulation of any securities exchange on which the Warrants may be listed, or of
the Depository, or to conform to usage. Each Definitive Warrant Certificate
shall be signed on behalf of the Corporation upon the same conditions, in
substantially the same manner and with the same effect as set forth in Section
1.02 with respect to Global Warrant Certificates.
-6-
<PAGE>
(b) Each Definitive Warrant Certificate, when so signed on behalf of
the Corporation, shall be delivered to the Warrant Agent together with a
Corporation Order for the countersignature and delivery of such Warrants, and
the Warrant Agent shall manually countersign and deliver such Warrants in
accordance with such Corporation Order upon the same conditions, in
substantially the same manner and with the same effect as set forth in Section
1.02 with respect to Global Warrant Certificates. Each Definitive Warrant
Certificate shall be dated the date of its countersignature.
(c) No Definitive Warrant Certificate shall be entitled to any
benefit under this Agreement or be valid or obligatory for any purpose, and no
Warrant evidenced thereby shall be exercisable, unless such Definitive Warrant
Certificate has been countersigned by the Warrant Agent. Such signature by the
Warrant Agent upon any Definitive Warrant Certificate executed by the
Corporation shall be conclusive evidence, and the only evidence, that such
Definitive Warrant Certificate so countersigned has been duly issued hereunder.
(d) Any Definitive Warrant Certificate bearing the manual or
facsimile signatures of individuals who were at the time of such signature the
proper officers of the Corporation shall bind the Corporation, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the countersignature and delivery of such Definitive Warrant Certificate or did
not hold such offices at the date of such Definitive Warrant Certificate.
(e) Definitive Warrant Certificates delivered in exchange for a
Global Warrant Certificate shall be registered in such names and addresses
(including tax identification numbers) and in such denominations as shall be
requested in writing by the Depository or its nominee in whose name such Global
Warrant Certificate is registered, upon written certification to the Corporation
and the Warrant Agent, in form satisfactory to each of them, of the existing
beneficial ownership interests in such Global Warrant Certificate.
(f) The Holder of any Warrant represented by a Definitive Warrant
Certificate shall be [if Debt Securities and Warrants that are not immediately
detachable are offered -- , prior to the Detachable Date, the Person in whose
name the Offered Debt Security to which such Warrant Certificate was initially
attached shall be registered upon the register relating to such Offered Debt
Securities and, after such Detachable Date,] the Person in whose name such
Definitive Warrant Certificate is registered in the Warrant Register
-7-
<PAGE>
(as defined in Section 1.04) at such time. [If Offered Debt Securities and
Warrants that are not immediately detachable are offered -- Prior to the
Detachable Date, the Corporation shall, or shall cause the registrar of the
Offered Debt Securities to, make available to the Warrant Agent such information
as may be necessary to permit the Warrant Agent to keep the Warrant Register up
to date regarding Holders of the Offered Debt Securities.]
Section 1.04. Maintenance of Warrant Register; Registration of
Transfers and Exchanges of Global Warrant Certificates. (a) [If Offered Debt
Securities and Warrants that are not immediately detachable are offered -- From
and after the Detachable Date,] the Corporation shall cause to be kept at the
Warrant Agent Office (as defined in Section 1.04(b)) a register (the "Warrant
Register"), which may be maintained electronically and in which, subject to such
reasonable regulations as it may prescribe, the Corporation shall provide for
the registration and registration of transfer, exchange, exercise and
cancellation of Warrants. The Warrant Agent is hereby appointed "Warrant
Registrar" for the purpose of registering Warrant Certificates and transfers and
exchanges of Warrant Certificates as herein provided.
(b) [If Offered Debt Securities and Warrants that are not immediately
detachable are offered -- Prior to the Detachable Date, a Warrant Certificate
may be exchanged or transferred only together with the Offered Debt Security to
which such Warrant Certificate was initially attached, and only for the purpose
of effecting, or in conjunction with, an exchange or transfer of such Offered
Debt Security. Furthermore, on or prior to the Detachable Date, each transfer
of an Offered Debt Security on the register of the Offered Debt Securities shall
operate also to transfer the Warrant Certificate or Certificates to which such
Offered Debt Security was initially attached. From and after the Detachable
Date, a] [If Offered Debt Securities and Warrants that are immediately
detachable are offered -- A] Warrant Certificate may be transferred at the
option of the Holder thereof upon surrender of such Warrant Certificate at the
office or agency of the Warrant Agent maintained for the purpose of
transferring, exchanging, exercising and canceling the Warrants, which shall be
south of Chambers Street in the Borough of Manhattan, The City of New York (the
"Warrant Agent Office"), and which is, on the date of this Agreement,
_______________________, New York, New York, _____, Attention: [Corporate Trust
Department], or at the office of any successor Warrant Agent as provided in
Article IV. Upon any such registration of transfer, the Corporation shall
execute, and the Warrant Agent shall countersign and
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<PAGE>
deliver, as provided in Section 1.02 or 1.03, as the case may be, in the name of
the designated transferee a new Global Warrant Certificate or Definitive Warrant
Certificate, as the case may be, of like tenor, of any authorized denomination
and representing in the aggregate a like number of unexercised Warrants as
evidenced by such Warrant Certificate at the time of such registration of
transfer, and bearing a number not contemporaneously outstanding.
(c) A Warrant Certificate may be exchanged at the option of the
Holder thereof for other Global Warrant Certificates or Definitive Warrant
Certificates, as the case may be, of like tenor, of any authorized denomination
and representing in the aggregate a like number of unexercised Warrants, upon
surrender of such Warrant Certificate at the Warrant Agent Office. Whenever any
Warrant Certificate is so surrendered for exchange, the Corporation shall
execute, and the Warrant Agent shall countersign and deliver, as provided in
Section 1.02 or 1.03, as the case may be, the Global Warrant Certificates or
Definitive Warrant Certificates, as the case may be, that the Holder of such
exchanged Warrant Certificate is entitled to receive and bearing a number not
contemporaneously outstanding.
(d) Any Warrant Certificate presented or surrendered for registration
of transfer or for exchange shall be duly endorsed or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent
and the Corporation, duly signed by the registered Holder thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed by a bank or trust company, by a broker or dealer
that is a member of the National Association of Securities Dealers, Inc. or by a
member of a national securities exchange.
(e) Except as otherwise provided herein or in a Global Warrant
Certificate, the Warrant Agent shall register the transfer of such Global
Warrant Certificate on the records of the Warrant Agent only to the Depository,
to a nominee of the Depository, to a successor Depository or to a nominee of the
successor Depository.
(f) A Global Warrant Certificate may be exchanged for a new Global
Warrant Certificate to reflect the issuance by the Corporation of additional
Warrants[; provided, however, that in no event shall the number of Warrants
represented by any Global Warrant Certificate exceed ___________________
originally issued]. To effect such an exchange, the Corporation shall deliver
to the Warrant Agent
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<PAGE>
a new Global Warrant Certificate duly executed on behalf of the Corporation as
provided in Section 1.02, together with a Corporation Order for the
countersignature and delivery of such Warrants. The Warrant Agent shall
countersign such new Global Warrant Certificate as provided in Section 1.02 and
in accordance with such Corporation Order, and shall deliver such new Global
Warrant Certificate to the Depository in exchange for, and upon receipt of, the
Global Warrant Certificate then held by the Depository. The Warrant Agent shall
cancel the Global Warrant Certificate delivered to it by the Depository and
return the canceled Global Warrant Certificate to the Corporation.
(g) All Warrant Certificates issued upon any registration of transfer
or exchange of Global Warrant Certificates or Definitive Warrant Certificates,
as the case may be, shall be valid obligations of the Corporation, evidencing
the same obligations of the Corporation and entitled to the same benefits under
this Agreement, as the Warrant Certificates surrendered upon such registration
of transfer or exchange. The Warrant Agent shall not be required to effect any
exchange or transfer that would result in the issuance of a Warrant Certificate
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant.
(h) No service charge shall be made for any registration of transfer
or exchange of Warrant Certificates, but the Corporation may require payment of
a sum sufficient to cover any stamp or other tax or other governmental charge
that may be imposed in connection with any such transfer or exchange.
Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant
Certificates. (a) If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Corporation shall execute, and the Warrant Agent shall
countersign and deliver in exchange therefor, as provided in Section 1.02 or
1.03, as the case may be, a new Warrant Certificate of like tenor representing a
like number of unexercised Warrants and bearing a number not contemporaneously
outstanding.
(b) If there shall be delivered by a Holder of a Warrant Certificate
to the Corporation and the Warrant Agent (i) evidence to their satisfaction of
the destruction, loss or theft of any Warrant Certificate, (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, and (iii) funds sufficient to cover any cost or expense
to the Corporation (including any fees charged by the Warrant Agent) relating
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to the issuance of a new Warrant Certificate, then, in the absence of notice to
the Corporation or the Warrant Agent that such Warrant Certificate has been
acquired by a bona fide purchaser, the Corporation shall execute, and the
Warrant Agent shall countersign and deliver, as provided in Section 1.02 or
1.03, as the case may be, in lieu of any such destroyed, lost or stolen Warrant
Certificate, a new Warrant Certificate of like tenor representing a like number
of unexercised Warrants and bearing a number not contemporaneously outstanding.
(c) If the Warrants evidenced by any such mutilated, destroyed, lost
or stolen Warrant Certificate have been exercised, or have been or are about to
be deemed to be exercised, the Corporation in its discretion may, instead of
issuing a new Warrant Certificate, treat the same as if it had received written
irrevocable notice of exercise in good form in respect thereof, as provided
herein.
(d) Upon the issuance of any new Warrant Certificate under this
Section, the Corporation may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Warrant Agent)
connected therewith.
(e) Every new Warrant Certificate issued pursuant to this Section
1.05 in lieu of any mutilated, destroyed, lost or stolen Warrant Certificate
shall constitute an original additional contractual obligation of the
Corporation, whether or not the mutilated, destroyed, lost or stolen Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all
other Warrant Certificates duly issued hereunder.
(f) The provisions of this Section 1.05 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 1.06. Cancellation of Warrants. (a) If the Corporation
shall purchase or otherwise acquire Warrants represented by a Global Warrant
Certificate, such Warrants may, at the option of the Corporation and upon
notification to the Warrant Agent, be surrendered free through a Depository
Participant for credit to the Warrant Account (as defined in Section 2.01(b))
and if so credited, the Warrant Agent shall promptly note the cancellation of
such Warrants
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by notation on the records of the Warrant Agent and on the Warrant Register.
(b) When all of the Warrants represented by any Global Warrant
Certificate have been exercised by the Owner thereof, automatically exercised or
otherwise canceled, and upon receipt of the same by the Warrant Agent, the
Warrant Agent shall promptly cancel such Global Warrant Certificate.
(c) The Corporation may at any time deliver to the Warrant Agent for
cancellation any Definitive Warrant Certificates previously countersigned and
delivered hereunder that the Corporation may have acquired in any manner
whatsoever, and the Warrant Agent shall promptly cancel all Definitive Warrant
Certificates so delivered.
(d) All Warrant Certificates surrendered for exercise, registration
of transfer or exchange or cancellation, if surrendered to any Person other than
the Warrant Agent, shall be delivered to the Warrant Agent, and the Warrant
Agent shall promptly cancel all such Warrant Certificates and all other Warrant
Certificates surrendered to it for exercise, registration of transfer or
exchange or cancellation.
(e) No Warrant Certificate shall be countersigned in lieu of or in
exchange for any Warrant Certificate canceled as provided in this Section 1.06
except as expressly permitted by this Agreement. All canceled Warrant
Certificates held by the Warrant Agent shall be destroyed by it unless by
written order the Corporation requests their return to it.
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01. Exercise Price. [During the period from ________ __,
199__ through and including ________ __, 199__,] the exercise price of each
Warrant shall be [$_______] [____% of the principal amount of the Warrant Debt
Securities subject to such Warrant] plus [accrued amortization, if any, of the
original issue discount of the Warrant Debt Securities] [accrued interest, if
any, from the most recent date from which interest shall have been paid on the
Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from ________ __, 199__]. [During the period from ________ __,
199__ through and including ________ __, 199__, the exercise price of each
Warrant shall be [$_______] [____% of the principal amount
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of the Warrant Debt Securities subject to such Warrant] plus [accrued
amortization, if any, of the original issue discount of the Warrant Debt
Securities] [accrued interest, if any, from the most recent date from which
interest shall have been paid on the Warrant Debt Securities or, if no interest
shall have been paid on the Warrant Debt Securities, from ________ __, 199__].]
[In each case, the original issue discount of $_______ for each $1,000 principal
amount of Warrant Debt Securities shall be amortized at a ___% annual rate,
computed on a[n] [semi-]annual basis [using a 360-day year consisting of twelve
30-day months].] The exercise price of each Warrant as set forth above is
referred to in this Agreement as the "Exercise Price."
Section 2.02. Duration of Warrants; Method of Exercise; Minimum [and
Maximum] Exercise Amounts; Notice of Exercise. (a) Subject to the limitations
described herein, each Warrant may be exercised in whole but not in part on any
New York Business Day (as defined in Section 2.02(f)) from [its date of issuance
(specify other date if applicable)] until [3:00 P.M.], New York City time, on
________ __, 199__, or, if such date is not a New York Business Day, on the next
succeeding New York Business Day (the "Expiration Date"). Each Warrant not
exercised at or before [3:00 P.M.], New York City time, on the Expiration Date
shall become void, and all rights of the Owner or Holder of such Warrant under
this Agreement or otherwise shall cease.
(b) Each Warrant may be exercised by:
(i) in the case of any Warrant represented by a Global Warrant
Certificate (each, a "Book-Entry Warrant"), (A) transfer of such Warrant on
the records of the Depository free to the Warrant Agent's Depository
Participant account (entitled ____________________), or such other account
of the Warrant Agent at the Depository as the Warrant Agent shall specify
(the "Warrant Account"), (B) delivery to the Warrant Agent as provided in
Section 2.02(d)(i)(C) of written notice (an "Exercise Notice") duly
completed and executed by a Depository Participant acting on behalf of the
Owner of such Warrant and (C) payment of the Exercise Price in U.S. dollars
[in cash or by cashier's check or official bank check in New York Clearing
House funds] [by bank wire transfer in immediately available funds] payable
to the account of the Corporation; and
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(ii) in the case of Warrants represented by a Definitive Warrant
Certificate (each, a "Certificated Warrant"), (A) surrender of such
Definitive Warrant Certificate to the Warrant Agent at the Warrant Agent
Office, (B) delivery to the Warrant Agent as provided in Section
2.02(d)(ii)(C) of an Exercise Notice duly completed and executed by the
Holder of such Warrant and (C) payment of the Exercise Price in U.S.
dollars [in cash or by cashier's check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available
funds] payable to the account of the Corporation].
(c) Not fewer than [specify minimum exercise amount] [nor more than
[specify maximum exercise amount]] Warrants may be exercised by or on behalf of
any one Owner or, in the case of Certificated Warrants, any one Holder at any
one time, except that no such minimum [or maximum] exercise amount shall apply
in the case of the exercise of any Warrants on the Expiration Date.
(d) Each Exercise Notice shall be unconditional and irrevocable and:
(i) in the case of any Book-Entry Warrant, shall (A) be in the form of
Exhibit B-1 hereto, and (B) shall be sent to the Warrant Agent in writing
at its address as set forth in such form of Exercise Notice or at such
other address as the Warrant Agent may specify from time to time by notice
given in accordance with Section 8.05; and
(ii) in the case of any Certificated Warrant, shall (A) be in the form
of Exhibit B-2 hereto and shall, unless otherwise agreed by the Corporation
and the Warrant Agent, be set forth on the reverse of the Definitive
Warrant Certificate representing such Certificated Warrant, and (B) shall
be sent to the Warrant Agent in writing at its address as set forth in such
form of Exercise Notice or at such other address as the Warrant Agent may
specify from time to time by notice given in accordance with Section 8.05.
(e) Except as provided in Section 2.03(c), the Warrant Agent and the
Corporation shall be entitled to rely conclusively on any Exercise Notice
received by the Warrant Agent with no duty of inquiry by either of them.
(f) As used in this Agreement, "New York Business Day" means any day
other than a Saturday or Sunday or a day on which the [New York Stock Exchange
or American Stock
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Exchange (list any other relevant securities exchanges)] is not open for
securities trading or banking institutions generally in The City of New York are
authorized or required by law or executive order to close.
Section 2.03. Exercise of Warrants. (a) Subject to Section
2.02(c)(ii), the exercise date (the "Exercise Date") for a Warrant shall be (i)
the New York Business Day on which the Warrant Agent receives delivery of such
Warrant to the Warrant Account, in the case of Book-Entry Warrants, or of the
Definitive Warrant Certificate representing such Warrant at the Warrant Agent
Office, in the case of Certificated Warrants, an Exercise Notice relating to
such Warrant in good order and payment of the Exercise Price in the manner
specified in Section 2.02(b), if such receipt occurs at or prior to [3:00] P.M.,
New York City time, on such New York Business Day, and (ii) otherwise the New
York Business Day next succeeding the day on which the Warrant Agent receives
such Warrant, the Exercise Price and such Exercise Notice, which next succeeding
New York Business Day shall be the day on which such Warrant, Exercise Price and
Exercise Notice shall be deemed to have been received. If any Exercise Notice,
the related Exercise Price or the Warrants to which such Exercise Notice relates
are received after [3:00] P.M., New York City time, on the Expiration Date, such
Exercise Notice shall be void and of no effect and shall be deemed not to have
been delivered.
(b) Following receipt of proper delivery of any Warrant, the Exercise
Price and the Exercise Notice related to such Warrant in accordance with Section
2.02(b), the Warrant Agent shall:
(i) deposit all funds received by it in payment of the Exercise Price
of such Warrant to the account of the Corporation maintained with it for
such purpose (unless otherwise instructed in writing by the Corporation),
and advise the Corporation by telephone and in writing, by facsimile
transmission or otherwise, at the end of each day on which any such payment
is received of the amount so deposited to its account;
(ii)(A) in the case of a Book-Entry Warrant, promptly determine
whether such Exercise Notice has been duly completed and is in proper form
and verify that the Person that executed such Exercise Notice is listed as
a Depository Participant in the most recent published edition of the
Depository's Eligible Corporate Securities Book (or the comparable
publication of any successor Depository) and, if such Person is not listed
therein, make reasonable efforts
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to obtain verbal verification from the Depository's Planning Department
(telephone number 212-709-1000) (or the comparable department of a
successor Depository) that such Person is a Depository Participant; and (B)
in the case of a Certificated Warrant, promptly determine whether such
Exercise Notice has been duly completed and is in proper form and whether
the Definitive Warrant Certificate representing such Warrant is in proper
form;
(iii)(A) in the case of a Book-Entry Warrant, if the Warrant Agent
determines that such Exercise Notice has not been duly completed or is not
in proper form, or is unable through the procedures described in clause
(ii)(A) above to verify that the Person that submitted such Exercise Notice
is a Depository Participant, then the Warrant Agent shall reject such
Exercise Notice and shall send to the Depository Participant that submitted
such Exercise Notice a notice of rejection substantially in the form of
Exhibit C hereto (a "Rejection Notice") and redeliver the Warrants to which
such rejected Exercise Notice relates free through the facilities of the
Depository to the account from which they were transferred; and (B) in the
case of a Certificated Warrant, if the Warrant Agent determines that such
Exercise Notice has not been duly completed or is not in proper form, or
that the Definitive Warrant Certificate representing such Warrant is not in
proper form, then the Warrant Agent shall reject such Exercise Notice and
shall send a Rejection Notice to the Holder of such Warrants and return
such Definitive Warrant Certificate to such Holder by first class mail at
the expense of the Corporation;
(iv) by [5:00 P.M.], New York City time, on the New York Business Day
on which such Exercise Notice is received (or deemed to have been
received), notify the Corporation (and such other parties (not to exceed
two) as the Corporation shall designate in writing) of (A) the total number
of Warrants in respect of which Exercise Notices were received (or deemed
to have been received) at or prior to [3:00 P.M.], New York City time, on
such date, (B) the number of such Exercise Notices that were rejected by
the Warrant Agent pursuant to clause (iii) above and the aggregate number
of Warrants to which such rejected Exercise Notices relate, and (C) the
aggregate number of Warrants covered by Exercise Notices that have not been
so rejected (the "Exercised Warrants");
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(v) by [5:00 P.M.], New York City time, on the New York Business Day
following the Exercise Date for such Exercised Warrants, send notice of
confirmation of exercise in substantially the form of Exhibit D hereto to
the appropriate Depository Participant or Holder, as the case may be; and
(vi) promptly deliver a copy of each Exercise Notice to the
Corporation and advise the Corporation of such other matters relating to
any of the Warrants covered thereby, whether or not they constitute
Exercised Warrants, as the Corporation shall reasonably request.
(c) At or before [3:00 P.M.], New York City time, on the [fifth] New
York Business Day following the Exercise Date for any Exercised Warrant, the
Corporation shall issue, and shall cause the Trustee to authenticate and
deliver, pursuant to the Indenture, in authorized denominations, to or upon the
order of the Holder of such Exercised Warrant, the Warrant Debt Security or
Warrant Debt Securities to which such Holder is entitled, in fully registered
form, registered in such name or names as may be directed by such Holder in the
Exercise Notice relating to such Exercised Warrant.
(d) (i) The Warrant Agent shall cause its records, which may be kept
electronically, to be marked to reflect the reduction in the number of Warrants
evidenced by each Global Warrant Certificate by the number of such Warrants in
respect of which Warrant Debt Securities have been made available as provided in
Section 2.03(c) promptly after such payment has been made available. In the
absence of manifest error, the Warrant Agent's records shall be conclusive
evidence as to such matters.
(ii) If any Definitive Warrant Certificate shall be surrendered to the
Warrant Agent for exercise of fewer than all the Warrants represented thereby,
the Corporation shall execute, and the Warrant Agent shall countersign, as
provided in Section 1.02 or 1.03, as the case may be, and deliver to the Holder
of such Warrants by first class mail at the expense of the Corporation a new
Definitive Warrant Certificate of like tenor representing all Warrants remaining
unexercised after such exercise and bearing a number not contemporaneously
outstanding.
(e) The Corporation shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Debt Securities, and the
Corporation
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shall not be required to issue or deliver any Warrant Debt Securities until any
such tax or other charge shall have been paid or it has been established to the
Corporation's satisfaction that no such tax or other charge is due.
(f) Any notice to be given to the Corporation by the Warrant Agent
pursuant to this Section 2.03 shall be by telephone (promptly confirmed in
writing) or telecopy (receipt to be promptly confirmed by telephone).
Section 2.04. Designation of Agent for Receipt of Notice. The
Corporation may from time to time designate in writing to the Warrant Agent a
single designee for receipt of all notices required to be given by the Warrant
Agent to the Corporation pursuant to this Article II and all such notices
thereafter shall be given in the manner herein provided by the Warrant Agent to
such designee and each such notice shall be as effective as if given directly to
the Corporation.
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders. (a) The Corporation, the
Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and
treat the Person in whose name each Global Warrant Certificate shall be
registered in the records of the Warrant Agent as the absolute Holder of all
right, title and interest in such Global Warrant Certificate (notwithstanding
any notation of ownership or other writing thereon) for all purposes hereunder
and as the Person entitled to exercise the rights represented by the Warrants
evidenced thereby, whether or not such Warrants shall be exercised or deemed to
be exercised, and neither the Corporation nor the Warrant Agent, nor any agent
of the Corporation or the Warrant Agent shall be affected by any notice to the
contrary, except that the Warrant Agent and the Corporation shall be entitled to
rely on and act pursuant to instructions of Depository Participants as
contemplated by Article II of this Agreement.
(b) Prior to due presentment of a Definitive Warrant Certificate for
registration of transfer, the Corporation, the Warrant Agent and any agent of
the Corporation or the Warrant Agent may treat [if Debt Securities and Warrants
that are not immediately detachable are offered -- , prior to the Detachable
Date, the Person in
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whose name the Offered Debt Security to which such Warrant Certificate was
initially attached shall be registered upon the register relating to such
Offered Debt Securities and, after such Detachable Date,] the Person in whose
name such Definitive Warrant Certificate is registered as the absolute Holder of
all right, title and interest in such Definitive Warrant Certificate
(notwithstanding any notation of ownership or other writing thereon) for all
purposes hereunder and as the Person entitled to exercise the rights represented
by the Warrants evidenced thereby, whether or not such Warrants shall be
exercised or deemed to be exercised, and neither the Corporation, the Warrant
Agent nor any agent of the Corporation or the Warrant Agent shall be affected by
notice to the contrary.
Section 3.02. Holder or Owner of Warrant May Enforce Rights.
Notwithstanding any other provision of this Agreement, any Owner, in the case of
Book-Entry Warrants, and any Holder, in the case of Certificated Warrants,
without the consent of the Warrant Agent, the Trustee, the holder of any Warrant
Debt Securities or the Owner or Holder of any other Warrant, may, in and for
such Owner's or Holder's own behalf, and for such Owner's or Holder's own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Corporation suitable to enforce, or otherwise in respect of, such
Owner's or Holder's right to exercise, and to receive the Warrant Debt
Securities issuable upon exercise of, such Owner's or Holder's Warrants as
provided in such Warrants and in this Agreement.
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent. The Corporation hereby appoints [name
of Warrant Agent] as the Warrant Agent of the Corporation in respect of the
Warrants upon the terms and subject to the conditions set forth herein and in
the Warrants, and [name of Warrant Agent] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred upon
it herein and in the Warrants and such further powers and authority acceptable
to it to act on behalf of the Corporation as the Corporation may hereafter grant
to or confer upon it. All of the terms and provisions with respect to such
powers and authority contained in the Warrants are subject to and governed by
the terms and provisions hereof.
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Section 4.02. Certain Duties of the Warrant Agent. (a) Except
during the continuation of a default in the performance by the Corporation of
its obligations in respect of the Warrants, the Warrant Agent undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Warrant Agent.
(b) No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 4.03. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations set forth herein upon and subject to the terms and
conditions hereof and of the Warrants, including the following, to all of which
the Corporation agrees and to all of which the rights hereunder of the Owners
and Holders from time to time of the Warrants shall be subject:
(a) The Corporation agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Corporation for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for its
reasonable out-of-pocket expenses, disbursements and advances (including
reasonable attorneys' fees and expenses and reasonable compensation,
expenses and disbursements of its agents) incurred by the Warrant Agent
without negligence, bad faith or breach of this Agreement on its part in
connection with the services rendered by it hereunder. The Corporation
also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense (including reasonable attorneys'
fees and expenses) incurred without negligence, bad faith or breach of this
Agreement on the part of the Warrant Agent, arising out of or in connection
with its acting as such Warrant Agent hereunder or with respect to the
Warrants, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligations of
the Corporation under this subsection (a) shall survive the exercise of the
Warrants and the resignation or removal of the Warrant Agent.
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(b) The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted or thing suffered by it in
reliance upon any Warrant, resolution, opinion, report, request, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been presented
or signed by the proper parties, provided that any request or direction of
the Corporation shall be sufficiently evidenced by a Corporation Order
delivered to the Warrant Agent, and any resolution of the Board of
Directors shall be sufficiently evidenced by a copy of the resolution
certified by the Secretary or an Assistant Secretary to have been duly
adopted by the Board of Directors of the Corporation, or by a committee of
such Board of Directors or an officer of the Corporation appointed by the
Board of Directors of the Corporation for such purpose, and to be in full
force and effect on the date of such certification and delivered to the
Warrant Agent (any such resolution, a "Board Resolution").
(c) The Warrant Agent may consult with counsel satisfactory to it,
which may include counsel to the Corporation, and the written opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such written opinion.
(d) The Warrant Agent shall not be bound to make any investigation
into the facts or matters stated in any Corporation Order or Board
Resolution, but the Warrant Agent, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(e) The Warrant Agent, and any of its officers, directors and
employees, in its individual or any other capacity, may become the Owner or
Holder of, or acquire any interest in, any Warrants or other obligations of
the Corporation, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Corporation and may act on, or as depositary, trustee
or agent for, any committee or body of Owners or Holders of Warrants or
holders of [Offered Debt Securities or] Warrant Debt Securities or other
obligations of the Corporation as freely as if it were not the Warrant
Agent hereunder. Nothing in this
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Warrant Agreement shall be deemed to prevent the Warrant Agent from acting
as Trustee under the Indenture.
(f) The Warrant Agent shall not be under any liability for interest
on any monies at any time received by it pursuant to any of the provisions
of this Agreement or of the Warrants except as otherwise agreed with the
Corporation, nor shall it be obligated to segregate such monies from other
monies held by it, except as required by law.
(g) The Warrant Agent shall not be under any liability with respect
to the validity or sufficiency of this Agreement or the execution and
delivery hereof (except the due execution and delivery hereof by the
Warrant Agent) or with respect to the validity or execution of the Warrants
or the Warrant Certificates (except the countersignature thereof).
(h) The recitals contained herein and in the Warrants (except as to
the Warrant Agent's countersignature thereon) shall be taken as the
statements of the Corporation, and the Warrant Agent assumes no
responsibility for the correctness thereof.
(i) The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Corporation of any of the Warrant
Certificates countersigned by the Warrant Agent and delivered by it to the
Corporation pursuant to this Agreement or for the application by the
Corporation of any proceeds.
(j) The Warrant Agent shall have no duty or responsibility in case of
any default by the Corporation in the performance of its covenants or
agreements contained herein or in the Warrants or in the [Offered Debt
Securities or] Warrant Debt Securities or in the case of the receipt of any
written demand from an Owner or Holder of a Warrant with respect to such
default, including, without limitation, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or,
except as provided in Section 8.03, to make any demand upon the
Corporation.
(k) In acting under this Agreement and in connection with the
Warrants, the Warrant Agent is acting solely as the agent of the
Corporation and does not assume any obligation or relationship of agency or
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trust for or with any of the Owners or Holders of the Warrants.
Section 4.04. Compliance With Applicable Laws. The Warrant Agent
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Agreement and in
connection with the Warrants, including (but not limited to) the provisions of
United States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
Section 4.05. Corporate Warrant Agent Required; Eligibility. The
Corporation agrees, for the benefit of the Owners or Holders from time to time
of the Warrants, that there shall at all times be a Warrant Agent hereunder
until all of the Warrants have been exercised or are no longer exercisable,
which shall be a banking institution organized under the laws of the United
States of America or one of the states thereof and having an office or an
agent's office south of Chambers Street in the Borough of Manhattan, The City of
New York.
Section 4.06. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Warrant Agent and no appointment of a successor
Warrant Agent pursuant to this Section 4.06 shall become effective until the
acceptance of appointment by the successor Warrant Agent under Section 4.07.
(b) The Warrant Agent may resign at any time by giving written notice
of such resignation to the Corporation specifying such resignation and the date
on which it desires such resignation to become effective, provided that, without
the consent of the Corporation, such date shall not be less than 90 days after
the date on which such notice is given. If an instrument of acceptance by a
successor Warrant Agent shall not have been delivered to the Warrant Agent
within 90 days after the giving of such notice of resignation, the resigning
Warrant Agent may petition any court of competent jurisdiction for the
appointment of a successor Warrant Agent with respect to the Warrants.
(c) The Corporation may remove the Warrant Agent at any time by
giving written notice thereof to the Warrant
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Agent specifying such removal and the date on which the Corporation desires such
removal to become effective.
(d) If at any time:
(i) the Warrant Agent shall cease to be eligible to act as such under
Section 4.05 and shall fail to resign after the Corporation shall have
delivered a written request therefor, or
(ii) the Warrant Agent shall become incapable of acting as such, or
shall be adjudged a bankrupt or insolvent, or shall file a voluntary
petition in bankruptcy or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or custodian of all
or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or an order of any court shall be entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy or
similar law, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, or
(iii) the Corporation shall elect to remove the Warrant Agent,
provided that no default shall then exist with respect to the Warrants,
then in any such case, the Corporation by a Board Resolution may remove the
Warrant Agent with respect to all the Warrants.
(e) If the Warrant Agent shall resign or be removed, or if a vacancy
shall occur in the office of the Warrant Agent for any other reason, the
Corporation, by a Board Resolution, shall promptly appoint a successor Warrant
Agent with respect to the Warrants, it being understood that at any time there
shall be only one Warrant Agent with respect to the Warrants.
(f) The Corporation shall give notice to the Owners or Holders of the
Warrants of each resignation and each removal of the Warrant Agent and each
appointment of a successor Warrant Agent with respect to the Warrants in
accordance with Section 8.05. Each such notice shall include the name of the
successor Warrant Agent and the address of its Warrant Agent Office.
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Section 4.07. Acceptance of Appointment by Successor. (a) If a
successor Warrant Agent is appointed hereunder, such successor Warrant Agent so
appointed shall execute, acknowledge and deliver to the Corporation and to the
retiring Warrant Agent an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Warrant Agent shall become effective
and such successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers and duties of the retiring
Warrant Agent; provided, however, that on the request of the Corporation or the
successor Warrant Agent, such retiring Warrant Agent shall, upon payment of its
charges and disbursements then unpaid, execute and deliver an instrument
transferring to such successor Warrant Agent all the rights and powers of the
retiring Warrant Agent and shall duly assign, transfer and deliver to such
successor Warrant Agent all property and money held by such retiring Warrant
Agent hereunder.
(b) Upon the request of any such successor Warrant Agent, the
Corporation shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Warrant Agent all such rights and
powers referred to in Section 4.07(a).
(c) No successor Warrant Agent shall accept its appointment, and no
such acceptance shall be effective, unless at the time of such acceptance such
successor Warrant Agent shall be qualified and eligible under this Article IV.
Section 4.08. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Warrant Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation succeeding to all or substantially all of the
business of the Warrant Agent, shall be the successor of the Warrant Agent
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided that such corporation shall be
otherwise qualified and eligible under this Article IV. If any Warrant
Certificates shall have been countersigned, but not delivered, by the Warrant
Agent then in office, any successor by merger, conversion or consolidation to
such countersigning Warrant Agent may adopt such countersignature and deliver
the Warrant Certificates so countersigned with the same effect as if such
successor Warrant Agent had itself countersigned such Warrant Certificates.
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ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the Corporation and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. (a) The
Corporation may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided
that, in any such case, (i) either the Corporation shall be the continuing
corporation, or the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a state thereof and
such successor corporation shall expressly assume, by Supplemental Agreement (as
defined in Section 6.01(a)) satisfactory to the Warrant Agent and executed and
delivered to the Warrant Agent by such corporation, the due and punctual
observance of the obligations of the Corporation hereunder and under all
unexercised Warrants, according to their tenor, and (ii) the Corporation or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale, lease or conveyance, be in default in the
performance of any such covenant or condition. In case of any such
consolidation, merger, sale, lease or conveyance and upon such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Corporation, with the same effect as if it had been named
herein as such, and the predecessor Corporation, except in the event of a lease,
shall be relieved of any further obligation hereunder or under the Warrants.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Corporation, new Global Warrant
Certificates or Definitive Warrant Certificates, as the case may be,
representing Warrants not theretofore exercised, in exchange and substitution
for the Global Warrant Certificates and Definitive Warrant Certificates
theretofore issued, and any or all of the Warrant Debt Securities issuable
pursuant to the terms of any such unexercised Warrants; and upon the order of
such successor corporation, instead of the Corporation, and subject to all the
terms, conditions and limitations in this Agreement prescribed, the Warrant
Agent shall countersign and shall deliver the new Global Warrant Certificates or
Definitive Warrant Certificates, as the case may be, that such successor
corporation shall have caused to be signed and delivered to the Warrant Agent
for countersignature. Such Global Warrant Certificates or Definitive Warrant
Certificates, as the case may be, shall in all respects have the same legal rank
and benefit under this Agreement as the Warrant Certificates
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theretofore issued in accordance with the terms of this Agreement as though such
new Warrant Certificates had been issued at the date of issue of the Warrant
Certificates for which they are exchanged, and all the Warrant Debt Securities
so issued shall in all respects have the same legal rank and benefit under the
Indenture as the Warrant Debt Securities theretofore or thereafter issued in
accordance with its terms of this Agreement and the Indenture. In case of any
such consolidation, merger, sale, lease or conveyance, such changes in
phraseology and form (but not in substance) may be made in the new Warrant
Certificates and Warrant Debt Securities thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive a written opinion of counsel (who
may be an employee of the Corporation or other counsel acceptable to the Warrant
Agent) (an "Opinion of Counsel") as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption,
complies with the provisions of this Article V.
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Debt Warrant Agreement. (a) This
Agreement and the Warrants may be amended by the Corporation, when authorized by
a Board Resolution, and the Warrant Agent (which amendment shall take the form
of a supplemental index warrant agreement) (each, a "Supplemental Agreement")),
without the consent of the Owners or Holders of the Warrants, for the purpose
of:
(i) curing any ambiguity or of curing, correcting or supplementing
any defective or inconsistent provision contained herein or therein, or of
making any other provisions with respect to matters or questions arising
under this Agreement that shall not be inconsistent with the provisions of
this Agreement or the Warrants; or
(ii) evidencing the succession of another corporation to the
Corporation and the assumption by any such successor of the covenants of
the Corporation contained herein and in the Warrants in accordance with
Article V; or
(iii) appointing a successor Depository in accordance with Section
1.01(e); or
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(iv) evidencing and providing for the acceptance of appointment
hereunder by a successor Warrant Agent in accordance with Section 4.07; or
(v) adding to the covenants of the Corporation for the benefit of the
Owners or Holders of the Warrants or surrendering any right or power herein
conferred upon the Corporation; or
(vi) issuing Warrants in the form of Definitive Warrant Certificates
in accordance with Section 1.01(c); or
(vii) amending this Agreement and the Warrants in any manner that the
Corporation may deem to be necessary or desirable and that will not
materially and adversely affect the interests of the Owners or Holders of
the Warrants.
(b) The Corporation and the Warrant Agent may amend this Agreement
and the Warrants (which amendment shall take the form of a Supplemental
Agreement), with the consent of the Owners or Holders, as the case may be, of
not fewer than 66-2/3% in number of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Owners or Holders of the Warrants under this Agreement;
provided, however, that, without the consent of each Owner or Holder affected
thereby, no such amendment may be made that changes the determination of the
Cash Settlement Value [or Cancellation Amount, as the case may be,] of the
Warrants (or any aspects of such determination) so as to reduce the amount
receivable upon exercise or deemed exercise of the Warrants, shortens the period
of time during which the Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the Owners or Holders, as the case may
be, or reduces the number of unexercised Warrants the consent of the Owners or
Holders of which is required for amendment of this Agreement or the Warrants.
The Corporation and the Warrant Agent shall be entitled to rely upon
certification in form satisfactory to each of them that any requisite consent
has been obtained from the Owners of Warrants represented by a Global Warrant
Certificate. Such certification may be provided by Depository Participants
acting on behalf of such Owners of Warrants, provided that any such
certification is accompanied by a certification from the Depository as to the
Global Warrant Certificate holdings of such Depository Participants.
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Section 6.02. Form of Approval of Supplemental Agreements by Owners
or Holders. It shall not be necessary for the Owners or Holders of the Warrants
to approve the particular form of any proposed Supplemental Agreement, but it
shall be sufficient if the Owners or Holders, as the case may be, shall approve
the substance of the Supplemental Agreement.
Section 6.03. Effect of Supplemental Agreements. Upon the execution
of any Supplemental Agreement under this Article, this Agreement shall be
modified in accordance therewith, such Supplemental Agreement shall form a part
of this Agreement for all purposes, and, subject to the proviso to the first
sentence of Section 6.01(b), every Owner or Holder of Warrants theretofore or
thereafter countersigned and delivered hereunder shall be bound thereby.
Section 6.04. Reference in Warrants to Supplemental Agreements.
Warrants countersigned and delivered after the execution of any Supplemental
Agreement pursuant to this Article may, and shall if required by the Warrant
Agent, bear a notation in form approved by the Warrant Agent as to any matter
provided for in such Supplemental Agreement. If the Corporation shall so
determine, new Warrants so modified as to conform, in the opinion of the Warrant
Agent and the Corporation, to any such Supplemental Agreement may be prepared
and executed by the Corporation and countersigned and delivered by the Warrant
Agent in exchange for unexercised Warrants.
ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Delivery of Prospectus. The Corporation shall furnish
to the Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the Warrant Debt Securities (the "Prospectus"), and
the Warrant Agent agrees that, upon the exercise of any Warrant Certificate, the
Warrant Agent shall deliver to the person designated to receive Warrant Debt
Securities, prior to or concurrently with the delivery of such Warrant Debt
Securities, a copy of such Prospectus, as so supplemented.
Section 7.02. Governmental Approvals. The Corporation shall from
time to time take all reasonable action necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities [and the [name of national securities exchange]] and shall make all
filings under United States federal and
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state laws (including, without limitation, the maintenance of the effectiveness
of a registration statement in respect of the Warrant Debt Securities under the
Securities Act of 1933), that may be or become requisite in connection with the
issuance, sale, trading, transfer, delivery or exercise of the Warrants, each
Global Warrant Certificate and each Definitive Warrant Certificate or the
issuance, sale, transfer and delivery of the Warrant Debt Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
Section 7.03. Delivery of Warrant Debt Securities. The Corporation
agrees, for the benefit of the Owners or Holders of the Warrants, that it will
duly and punctually deliver the Warrant Debt Securities issuable upon exercise
of each Warrant in accordance with the terms of the Warrants and this Agreement,
and that the right of each such Owner or Holder, as the case may be, to receive
delivery of the Warrant Debt Securities issuable upon the exercise of each such
Warrant when such delivery is due shall be absolute and unconditional.
Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys. (a)
The Corporation shall maintain an office and agency at which the Warrants may be
presented or surrendered for exercise or registration of transfer or exchange or
cancellation and where notices and demands to or upon the Corporation in respect
of the Warrants and this Agreement may be served, which office and agency shall
be the same as the location of the Warrant Agent Office, and the Corporation
hereby appoints the Warrant Agent as its agent to receive all such
presentations, surrenders, notices and demands.
(b) The Corporation shall, on or prior to the date on which delivery
of the Warrant Debt Securities issuable upon exercise of any Warrants is due,
cause the Trustee to issue such Warrant Debt Securities, which Warrant Debt
Securities shall be held for the benefit of the Persons entitled to receive such
Warrant Debt Securities.
(c) Any money deposited with the Warrant Agent for the payment of any
amounts that may become due and payable with respect to any Warrant, and any
Warrant Debt Securities deposited with the Warrant Agent for delivery upon
exercise of any Warrant, and remaining unclaimed for three years after such
payment or delivery has become due, shall be paid or returned to the
Corporation, at the request of the Corporation, and the Person entitled to such
money or Warrant Debt Securities shall thereafter, as an unsecured general
creditor, look only to the Corporation for payment
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or delivery thereof, and all liability of the Warrant Agent with respect to such
money or Warrant Debt Securities shall thereupon cease; provided, however, that
the Warrant Agent, before being required to make any such repayment or return,
may at the expense of the Corporation, cause notice to be given in accordance
with Section 8.05 to the Person entitled to such money or Warrant Debt
Securities that such money or Warrant Debt Securities remain unclaimed and that,
after a date specified therein, which shall be not less than 30 days from the
date of such notice, any unclaimed balance of such money or unclaimed Warrant
Debt Securities then remaining will be repaid or returned to the Corporation.
Section 7.05. Corporate Existence. Subject to Article V, the
Corporation shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Corporation shall not be
required to preserve any right or franchise if its Board of Directors or a
committee thereof shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Corporation and that the loss
thereof is not disadvantageous in any material respect to the Owners or Holders
of the Warrants, as the case may be.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants. The Corporation may,
from time to time, issue additional Warrants under this Agreement. All Warrants
issued hereunder, from and after the date they are issued, shall be identical.
Section 8.02. Payment of Taxes. The Corporation shall pay all
documentary stamp taxes attributable to the initial issuance of Warrants;
provided, however, that the Corporation shall not be required to pay any tax or
other governmental charge that may be payable in respect of any transfer
involving any beneficial or record interest in or ownership interest of any
Warrants.
Section 8.03. Notices and Demands to the Corporation and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Corporation by any Owner or Holder pursuant to the provisions of the Warrants,
the Warrant Agent shall promptly forward such notice or demand to the
Corporation.
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Section 8.04. Addresses for Notices. Any communications from the
Corporation to the Warrant Agent with respect to this Agreement shall be
addressed to [name of Warrant Agent], [address] (facsimile: (___) ___-____)
(telephone: (___) ___-____), Attention: [Corporate Trust Department]; and any
communications from the Warrant Agent to the Corporation with respect to this
Agreement shall be addressed to Bankers Trust New York Corporation, 280 Park
Avenue, New York, New York 10017 (facsimile: (212) ___-____) (telephone: (212)
___-____), Attention: [________________] (or, in either case, at such other
address as shall be specified in writing to the other by the Warrant Agent or
the Corporation, as the case may be).
Section 8.05. Notices to Owners and Holders. The Corporation or the
Warrant Agent shall give any notice to be given to the Owners of Book-Entry
Warrants by providing the Depository with a form of notice to be distributed by
the Depository to Depository Participants in accordance with the customs and
practices of the Depository. The Corporation or the Warrant Agent shall give
notice to the Holders of Certificated Warrants by mailing written notice by
first class mail, postage prepaid, to such Holders as their names and addresses
appear in the Warrant Register [or, prior to the Detachable Date, on the
register of the Offered Debt Securities].
SECTION 8.06. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT ISSUED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Section 8.07. Benefits of Debt Warrant Agreement. Nothing in this
Agreement or in the Warrants expressed or implied and nothing that may be
inferred from any of the provisions hereof or thereof is intended, or shall be
construed, to confer upon, or give to, any Person other than the Corporation,
the Warrant Agent and their respective successors and assigns, and the Owners or
Holders of the Warrants, as the case may be, any right, remedy or claim under or
by reason of this Agreement or the Warrants or of any covenant, condition,
stipulation, promise or agreement hereof or thereof, and all covenants,
conditions, stipulations, promises and agreements contained in this Agreement or
in the Warrants shall be for the sole and exclusive benefit of the Corporation
and the Warrant Agent and their respective successors and assigns and of the
Owners or Holders of the Warrants, as the case may be.
Section 8.08. Successors and Assigns. All covenants and agreements
in this Agreement by the
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Corporation shall bind its successors and assigns, whether so expressed or not.
Section 8.09. Debt Warrant Agreement and Warrants Solely Corporate
Obligations. No recourse for the payment of any amounts due in respect of, or
for the delivery of any Warrant Debt Securities issuable upon exercise of, any
Warrant or for any claim based on any Warrant or this Agreement shall be had
against any director or officer or stockholder, past, present or future, of the
Corporation. Any such claim against any such Person is expressly waived as a
condition of, and as consideration for, the execution and delivery of this
Agreement and the issue of the Warrants.
Section 8.10. Severability. If any provision in this Agreement or in
the Warrants shall be invalid, illegal, or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions, or of
such provisions in any other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 8.11. Headings. The descriptive headings of the several
Articles and Sections and the Table of Contents of this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
Section 8.12. Counterparts. This Agreement may be executed by the
parties hereto in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 8.13. Inspection of Debt Warrant Agreement. A copy of this
Agreement shall be available at all reasonable times at the Warrant Agent Office
for inspection by the Owners or Holders of the Warrants, as the case may be, the
Depository Participants and the Indirect Participants. In the case of
Certificated Warrants, the Warrant Agent may require the Holder of such Warrant
to submit such Holder's Warrant Certificate for inspection by the Warrant Agent.
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IN WITNESS WHEREOF, this Debt Warrant Agreement has been duly executed
by the parties hereto as of the day and year first above written.
BANKERS TRUST NEW YORK CORPORATION
By:___________________________
Name:
Title:
[SEAL]
Attest:
___________________________
[Assistant] Secretary
[NAME OF WARRANT AGENT], as Warrant Agent
By:___________________________
Name:
Title:
[SEAL]
Attest:
_____________________________
[Assistant Secretary]
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EXHIBIT A
[Form of Legend if Debt Securities with Warrants that are not immediately
detachable are offered: PRIOR TO ____________, THIS WARRANT CERTIFICATE MAY
BE TRANSFERRED OR EXCHANGED IF AND ONLY IF THE [TITLE OF OFFERED DEBT
SECURITY] TO WHICH IT WAS INITIALLY ATTACHED
IS SO TRANSFERRED OR EXCHANGED.]
[Form of Legend if Warrants are not immediately exercisable: WARRANTS
EVIDENCED BY THIS WARRANT CERTIFICATE CANNOT
BE EXERCISED PRIOR TO ________ __, 199__.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER [3:00 P.M.], NEW YORK CITY TIME,
ON ________ __, 199__
No. _________ CUSIP No. ____________
GLOBAL WARRANT CERTIFICATE
representing
Warrants to purchase
[Title of Warrant Debt Securities]
BANKERS TRUST NEW YORK CORPORATION
This certifies that [______________] or registered assigns is the
registered holder of [insert number initially issued] Warrants to purchase
certain debt securities (the "Warrants"), or such lesser amount as is indicated
in the records of [name of Warrant Agent], as Warrant Agent. Each Warrant
entitles the [beneficial owner thereof (an "Owner")] [Holder (as defined below)
hereof], subject to the provisions contained herein and in the Debt Warrant
Agreement referred to below, to purchase from Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), $_________ principal
amount of the Corporation's [Title of Warrant Debt Securities] (the "Warrant
Debt Securities") of Bankers Trust New York Corporation (the "Corporation"),
issued or to be issued under the Indenture (as hereinafter defined), at the
Exercise Price set forth below. [During the period from ________ __, 199__
through and including ________ __, 199__,] the exercise price of each Warrant
shall be [$_______] [____% of the principal amount of the Warrant Debt
Securities subject to such Warrant] plus [accrued amortization, if any, of the
original issue discount of the
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Warrant Debt Securities] [accrued interest, if any, from the most recent date
from which interest shall have been paid on the Warrant Debt Securities or, if
no interest shall have been paid on the Warrant Debt Securities, from ________
__, 199__]. [During the period from ________ __, 199__ through and including
________ __, 199__, the exercise price of each Warrant shall be [$_______]
[____% of the principal amount of the Warrant Debt Securities subject to such
Warrant] plus [accrued amortization, if any, of the original issue discount of
the Warrant Debt Securities] [accrued interest, if any, from the most recent
date from which interest shall have been paid on the Warrant Debt Securities or,
if no interest shall have been paid on the Warrant Debt Securities, from
________ __, 199__].] [In each case, the original issue discount of $_______
for each $1,000 principal amount of Warrant Debt Securities shall be amortized
at a ___% annual rate, computed on a[n] [semi-]annual basis [using a 360-day
year consisting of twelve 30-day months].] The exercise price of each Warrant
as set forth above is referred to in this Warrant Certificate as the "Exercise
Price."
The term "Holder" as used herein shall mean [if Debt Securities with
Warrants that are not immediately detachable are offered -- , prior to
________________, 19__ (the "Detachable Date"), the registered owner of the
Corporation's [title of Offered Debt Securities] to which such Warrant
Certificate was initially attached, and after such Detachable Date,] the person
in whose name at the time such Warrant Certificate shall be registered upon the
books to be maintained by the Warrant Agent for that purpose pursuant to Section
1.04 of the Debt Warrant Agreement.
Subject to the terms of the Debt Warrant Agreement, each Warrant may
be exercised in whole but not in part on any New York Business Day (as defined
below) from [the date of issuance (specify other date if applicable)] until
[3:00 P.M.], New York City time, on [_________ (specify date upon which right to
exercise Warrants expires)] or, if such date is not a New York Business Day, on
the next succeeding New York Business Day (the "Expiration Date"). Each Warrant
not exercised at or before [3:00 P.M.], New York City time, on the Expiration
Date shall become void, and all rights of the Owner or Holder of such Warrant
under this Agreement or otherwise shall cease. Not fewer than [(specify minimum
exercise amount)] [nor more than [(specify maximum exercise amount)] Warrants
may be exercised by or on behalf of any one [Owner] [Holder] at any one time.
References herein to "U.S. dollars", "U.S.$" or "$" are references to the
currency of the United States of America. As used herein, the term "New York
Business Day"
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means any day other than a Saturday or Sunday or a day on which the New York
Stock Exchange or the American Stock Exchange [or (list any other relevant
securities exchanges)] is not open for securities trading or banking
institutions generally in The City of New York are authorized or required by law
or executive order to close.
This [Global] [Definitive] Warrant Certificate is issued under and in
accordance with the Debt Warrant Agreement, dated as of ________ __, 199__ (the
"Debt Warrant Agreement"), between the Corporation and the Warrant Agent, and is
subject to the terms and provisions contained in the Debt Warrant Agreement, to
all of which terms and provisions all [Owners] [Holders] of the Warrants
represented by this [Global] [Definitive] Warrant Certificate [and the Holder of
this Global Warrant Certificate] consent by acceptance hereof [by the Depository
(as defined below)]. Copies of the Debt Warrant Agreement are on file at the
Warrant Agent Office at ______________, New York, New York, _____, Attention:
Corporate Trust Department, or at such other office as may be specified in a
notice given to the [Owners] [Holders] of the Warrants. [Except as provided in
the Debt Warrant Agreement, Owners will not be entitled to receive definitive
certificates evidencing their Warrants. Warrant holdings will be held through a
depository selected by the Corporation, which initially is [The Depository Trust
Company], or its agent (the "Depository", which term, as used herein, includes
any successor depository selected by the Corporation) as further provided in the
Debt Warrant Agreement.]
Capitalized terms included herein but not defined herein have the
meanings assigned to them in the Debt Warrant Agreement.
The Warrants evidenced by this Warrant Certificate may be exercised at
any time during the period specified above by delivering (i) [such Warrant on
the records of the Depository free to the Warrant Account] [this Warrant
Certificate to the Warrant Agent at the Warrant Agent Office], (ii) an Exercise
Notice for such Warrant in good order in the form of [Exhibit B-1] [Exhibit B-2]
to the Debt Warrant Agreement, and (iii) payment of the Exercise Price in U.S.
dollars [in cash or by cashier's check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available funds]
payable to the account of the Corporation.
By [5:00 P.M.], New York City time, on the New York Business Day on
which such Exercise Notice is received (or deemed to have been received), the
Warrant Agent shall
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notify the Corporation (and such other parties (not to exceed two) as the
Corporation shall designate in writing) of the number of Warrants in respect of
which Exercise Notices, not rejected pursuant to the Debt Warrant Agreement,
were received (or deemed to have been received) at or prior to [3:00 P.M.], New
York City time, on such date, the number of such Exercise Notices that were
rejected by the Warrant Agent pursuant to the Debt Warrant Agreement and the
number of Warrants to which such rejected Exercise Notices relate. By [5:00
P.M.], New York City Time, on the New York Business Day following the Exercise
Date for such Warrants the Warrant Agent shall send notice of confirmation of
exercise in substantially the form of Exhibit D to the Debt Warrant Agreement to
the appropriate [Depository Participant] [Holder].
At or before [3:00 P.M.], New York City time, on the [fifth] New York
Business Day following the Exercise Date for such Warrants, the Corporation
shall issue, and shall cause the Trustee to authenticate and deliver, pursuant
to the Indenture, in authorized denominations, to or upon the order of the
Holder of such Warrants, the Warrant Debt Security or Warrant Debt Securities to
which such Holder is entitled, in fully registered form, registered in such name
or names as may be directed by such Holder in the Exercise Notice relating to
such Exercised Warrant.
[The Warrant Agent will cause its records to be marked to reflect the
reduction in the number of Warrants represented by this Global Warrant
Certificate by the number of Warrants for which payment has been made in
accordance with the Index Warrant Agreement.] [If this Definitive Warrant
Certificate shall be surrendered to the Warrant Agent for exercise of fewer than
all the Warrants represented hereby, the Warrant Agent shall issue and deliver
to the Holder of the Warrants represented hereby by first class mail at the
expense of the Corporation a Definitive Warrant Certificate representing all
Warrants remaining unexercised after such exercise.]
The Corporation, the Warrant Agent and any agent of the Corporation or
the Warrant Agent may deem and treat the registered Holder hereof as the
absolute Holder of all right, title and interest in the Warrants evidenced
hereby (notwithstanding any notation of ownership or other writing hereon) for
any purpose and as the Person entitled to exercise the rights represented by the
Warrants evidenced hereby, and neither the Corporation nor the Warrant Agent nor
any agent of the Corporation or the Warrant Agent shall be affected by any
notice to the contrary, except that the
A-4
<PAGE>
Corporation and the Warrant Agent shall be entitled to rely on and act pursuant
to instructions of Depository Participants as contemplated herein and in the
Index Warrant Agreement.
The Warrant Debt Securities to be issued and delivered upon the
exercise of Warrants evidenced by this Warrant Certificate will be issued under
and in accordance with an Indenture, [dated as of November 1, 1991, as amended
by the First Supplemental Indenture, dated as of September 1, 1993 (as so
amended, and as further amended from time to time, the "Indenture"), between the
Corporation and The Chase Manhattan Bank (National Association)] [dated as of
April 1, 1992, as amended by the First Supplemental Indenture, dated as of
January 15, 1993 (as so amended, and as further amended from time to time, the
"Indenture"), between the Corporation and Marine Midland Bank, N.A.] [dated as
of ________ __, 199_ (as amended from time to time, the "Indenture"), between
the Corporation and ______________], as trustee (such trustee, and any
successors to such trustee, the "Trustee"), and will be subject to the terms and
provisions contained in the Warrant Debt Securities and in the Indenture.
Copies of the Indenture, including the form of the Warrant Debt Securities, are
on file at the corporate trust office of the Trustee [and at __________].
[If Debt Securities with Warrants that are not immediately detachable
are offered -- Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [title of Offered Debt Security]
(the "Offered Debt Security") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Debt Security. Additionally, on or prior
to the Detachable Date, each transfer of such Offered Debt Security on the
register of the Offered Debt Securities shall operate also to transfer this
Warrant Certificate. After the Detachable Date, and subject to the terms of the
Debt Warrant Agreement,] [If Debt Securities with Warrants that are immediately
detachable or if Warrants alone are offered -- Subject to the terms of the Debt
Warrant Agreement,] upon due presentment for registration of transfer or
exchange of this [Global] [Definitive] Warrant Certificate at the Warrant Agent
Office, the Corporation shall execute and the Warrant Agent shall countersign
and deliver in the name of the designated transferee a new [Global] [Definitive]
Warrant Certificate or [Global] [Definitive] Warrant Certificates of like tenor
and representing in the aggregate a like number of unexercised Warrants as
evidenced by this [Global] [Definitive] Warrant
A-5
<PAGE>
Certificate at the time of such registration of transfer, which shall be issued
to the designated transferee in exchange for this [Global] [Definitive] Warrant
Certificate, subject to the limitations provided in the Debt Warrant Agreement,
without charge.
The Warrants shall not entitle the Owner or Holder thereof to any of
the rights of a registered owner of the Warrant Debt Securities, including,
without limitation, the right to receive the payment of principal of, premium,
if any, or interest, if any, on the Warrant Debt Securities or to enforce any of
the covenants in the Warrant Debt Securities or the Indenture[, except to the
extent that the consent of the Owners or Holders of Warrant Certificates is
expressly required by the terms of the Warrant Debt Securities for certain
modifications of the Warrant Debt Securities]. [No amendment or modification of
the Indenture or the forms of the Warrant Debt Securities that would adversely
affect the rights of the Owners or Holders of Warrants shall be made prior to
the issuance of any Warrant Debt Securities without the written consent of the
Owners or Holders of Warrants representing the right to purchase at least a
majority of the maximum principal amount of the Warrant Debt Securities that may
be issued pursuant to Warrants that may be issued pursuant to this Agreement.]
This [Global] [Definitive] Warrant Certificate and the Debt Warrant
Agreement are subject to amendment as provided in the Debt Warrant Agreement.
THIS [GLOBAL] [DEFINITIVE] WARRANT CERTIFICATE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This [Global] [Definitive] Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant Agent.
A-6
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
Dated as of ________ __, 199__
BANKERS TRUST NEW YORK CORPORATION
By:___________________________
Name:
Title:
[SEAL]
Attest:_______________________
Name:
Title:
Countersigned on the date
above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
A-7
<PAGE>
EXHIBIT B-1
Form of Exercise Notice
for Warrants Represented by a Global Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation Debt Warrants Expiring
________ __, 199__ (the "Warrants")
1. We refer to the Debt Warrant Agreement, dated as of ________ __,
199__ (the "Debt Warrant Agreement"), between Bankers Trust New York Corporation
(the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant
Agent"). On behalf of certain beneficial owners, each of whom is exercising no
fewer than [__________] Warrants covered by this Notice and whose Warrants are
held through the Depository in our name, we hereby irrevocably exercise
[_____________] Warrants (the "Exercised Warrants").
2. We have instructed the Depository to deliver the Exercised
Warrants free through the Depository to the Warrant Account [Account No.
_______________])[, and we have made payment of the Exercise Price as provided
in Section 2.01(b) of the Debt Warrant Agreement].
3. We hereby certify that we are a participant of [The Depository
Trust Company] (the "Depository") with the present right to use and receive its
services.
4. We hereby acknowledge that if you determine that this Exercise
Notice has not been duly completed, or is not in proper form, or you are unable
to verify that we are a participant of the Depository as provided above, this
Exercise Notice will be void and of no effect and will be deemed not to have
been delivered.
5. We hereby direct you to make payment to us of amounts payable to
the beneficial owners of the Tendered Warrants as a result of the exercise of
the Tendered Warrants hereunder as follows:
<PAGE>
[ ] By cashier's check or an official bank
check;
or
[ ] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank:_________________________________
Account No.:__________________________
ABA Routing No.:______________________
Reference:____________________________
Capitalized terms used herein and not defined have the meanings
assigned to them in the Debt Warrant Agreement.
Dated: ________ __, 199__
[NAME OF DEPOSITORY
PARTICIPANT]
[Participant Number]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-1-2
<PAGE>
EXHIBIT B-2
Form of Exercise Notice
for Warrants Represented by a Definitive Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation Debt Warrants Expiring
________ __, 199__ (the "Warrants")
1. We refer to the Debt Warrant Agreement, dated as of ________ __,
199__ (the "Debt Warrant Agreement"), between Bankers Trust New York Corporation
(the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant
Agent"). We hereby irrevocably exercise [_____________] Warrants (the
"Exercised Warrants") and deliver to you herewith a Definitive Warrant
Certificate or Certificates, registered in the name of the undersigned,
representing a number of Warrants at least equal to the number of Exercised
Warrants and payment of the Exercise Price as provided in Section 2.01(b) of the
Debt Warrant Agreement.
2. We hereby acknowledge that if you determine that this Exercise
Notice has not been duly completed or is not in proper form, this Exercise
Notice will be void and of no effect and will be deemed not to have been
delivered.
3. We hereby direct you to make payment of amounts payable to us as a
result of the exercise of the Warrants hereunder as follows:
[ ] By cashier's check or an official bank
check;
or
[ ] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank:_________________________________
Account No.:__________________________
<PAGE>
ABA Routing No.:______________________
Reference:____________________________
Capitalized terms used herein and not defined have the meanings
assigned to them in the Debt Warrant Agreement.
Dated: ________ __, 199__
[NAME OF HOLDER]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-2-2
<PAGE>
EXHIBIT C
Form of Rejection Notice
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation Debt Warrants Expiring
________ __, 199__ (the "Warrants")
We refer to the Debt Warrant Agreement, dated as of ________ __, 199__
(the "Debt Warrant Agreement"), between Bankers Trust New York Corporation (the
"Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent").
In the case of Exercised Warrants represented by a Global Warrant
Certificate and rejected pursuant to Section 2.02(c)(iv) of the Debt Warrant
Agreement: You are hereby notified that [the Exercise Notice delivered by you
was determined by us not to have been [duly completed] [in proper form]] [we
were not able to verify that you are a Depository Participant of [The Depository
Trust Company] in the manner, and pursuant to the procedures], as set forth in
the Debt Warrant Agreement. Accordingly, we have rejected your Exercise Notice
as being unsatisfactory as to form.
In the case of Tendered Warrants represented by a Definitive Warrant
Certificate and rejected pursuant to Section 2.02(c)(ii) of the Debt Warrant
Agreement: You are hereby notified that [the Exercise Notice delivered by you
was determined by us not to have been [duly completed] [in proper form]] [the
Definitive Warrant Certificate delivered by you was determined by us not to have
been in proper form], as set forth in the Debt Warrant Agreement. Accordingly,
we have rejected your Exercise Notice as being unsatisfactory as to form.
<PAGE>
Capitalized terms used herein and not defined have the meanings
assigned to them in the Debt Warrant Agreement.
Dated: ________ __, 199__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D
Form of Confirmation of Exercise
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation Warrants Expiring
________ __, 199__ (the "Warrants")
We refer to the Debt Warrant Agreement, dated as of ________ __, 199__
(the "Debt Warrant Agreement"), between Bankers Trust New York Corporation (the
"Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent").
We hereby confirm receipt of your Exercise Notice with respect to
____________ Warrants (the "Exercised Warrants"), and the [Definitive Warrant
Certificates representing the] Warrants relating thereto, which Exercise Notice
[and Definitive Warrant Certificates] we have found to be duly completed and in
good order[, and we have verified, in the manner provided in the Debt Warrant
Agreement, that you are a Depository Participant].
Capitalized terms used herein and not defined have the meanings
assigned to them in the Debt Warrant Agreement.
Dated: ________ __, 199__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
<PAGE>
EXHIBIT 4.7
================================================================================
CURRENCY WARRANT AGREEMENT
dated as of ________ __, 199__
between
BANKERS TRUST NEW YORK CORPORATION
and
[NAME OF WARRANT AGENT], as Warrant Agent
---------------------------
[Name of Currency] Currency [Put/Call] Warrants
Expiring ________ __, 199__
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
PARTIES....................................................... 1
RECITALS...................................................... 1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants;
Book-Entry Procedures; Successor
Depository..................................... 1
Section 1.02. Form; Denominations; Execution,
Countersignature, Delivery and
Dating of Global Warrant
Certificates................................... 4
Section 1.03. Definitive Warrant Certificates................ 5
Section 1.04. Maintenance of Warrant Register;
Registration of Transfers and
Exchanges of Global Warrant
Certificates................................... 7
Section 1.05. Mutilated, Destroyed, Lost and
Stolen Warrant Certificates.................... 9
Section 1.06. Cancellation of Warrants....................... 10
ARTICLE II
[EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS
Section 2.01. Duration of Warrants; Method of
Exercise; Minimum [and Maximum]
Exercise Amounts; Notice of
Exercise....................................... 11
Section 2.02. Exercise of Warrants........................... 14
Section 2.03. Automatic Exercise of Warrants................. 21
[Section 2.04. Cancellation of Warrants...................... 24
[Section 2.05. Discontinuance or Modification of
Base Currency.................................. 24
Section 2.06. Designation of Agent for Receipt of
Notice......................................... 24
[Section 2.07. Extraordinary Events.......................... 24
[Section 2.08. Temporary Suspension of the Right
to Exercise the Warrants....................... 24
<PAGE>
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders........................... 24
Section 3.02. Holder or Owner of Warrant May
Enforce Rights................................. 25
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent.................................. 25
Section 4.02. Certain Duties of the Warrant
Agent.......................................... 26
Section 4.03. Conditions of Warrant Agent's
Obligations.................................... 26
Section 4.04. Compliance With Applicable Laws................ 29
Section 4.05. Corporate Warrant Agent Required;
Eligibility.................................... 29
Section 4.06. Resignation and Removal;
Appointment of Successor....................... 29
Section 4.07. Acceptance of Appointment by
Successor...................................... 30
Section 4.08. Merger, Conversion, Consolidation
or Succession to Business...................... 31
ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the
Corporation and Sales, Leases and
Conveyances Permitted Subject to
Certain Conditions............................. 32
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Currency Warrant
Agreement...................................... 33
Section 6.02. Form of Approval of Supplemental
Agreements by Owners or Holders................ 34
Section 6.03. Effect of Supplemental Agreements.............. 35
-ii-
<PAGE>
Section 6.04. Reference in Warrants to
Supplemental Agreements........................ 35
ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Listing of Warrants on National
Securities Exchange............................ 35
Section 7.02. Governmental Approvals......................... 36
Section 7.03. Payment of Cash Settlement Value
[or Cancellation Amount]....................... 36
Section 7.04. Maintenance of Office or Agency;
Unclaimed Moneys............................... 36
Section 7.05. Corporate Existence............................ 37
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants................. 37
Section 8.02. Payment of Taxes............................... 37
Section 8.03. Notices and Demands to the
Corporation and Warrant Agent.................. 38
Section 8.04. Addresses for Notices.......................... 38
Section 8.05. Notices to Owners and Holders.................. 38
SECTION 8.06. GOVERNING LAW.................................. 38
Section 8.07. Benefits of Currency Warrant
Agreement...................................... 38
Section 8.08. Successors and Assigns......................... 39
Section 8.09. Currency Warrant Agreement and
Warrants Solely Corporate
Obligations.................................... 39
Section 8.10. Severability................................... 39
Section 8.11. Headings....................................... 39
Section 8.12. Counterparts................................... 39
Section 8.13. Inspection of Currency Warrant
Agreement...................................... 39
Exhibit A Form of Warrant Certificate
Exhibit B-1 Form of Exercise Notice from
Depository Participant
Exhibit B-2 Form of Exercise Notice from Holder
of Definitive Warrant Certificate
Exhibit C Form of Rejection Notice
Exhibit D Form of Confirmation of Exercise
Exhibit E-1 Form of Depository Participant
Certificate
-iii-
<PAGE>
Exhibit E-2 Form of Holder Certificate
-iv-
<PAGE>
CURRENCY WARRANT AGREEMENT
CURRENCY WARRANT AGREEMENT, dated as of ________ __, 199__ (as
modified, amended or supplemented, this "Agreement"), between BANKERS TRUST NEW
YORK CORPORATION, a corporation organized and existing under the laws of the
State of New York (the "Corporation"), and [NAME OF WARRANT AGENT], a [banking
association] [corporation] organized and existing under the laws of
______________, as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Corporation proposes to sell [put] [call] warrants (each,
a "Warrant") representing the right to receive from the Corporation the Cash
Settlement Amount (as defined in Section 2.02(f)) in [U.S. dollars (specify
other Reference Currency if applicable)] of the right to [purchase] [sell]
[(specify base amount)] of [(specify Base Currency)] (the "Base Currency") at a
price of [(specify Strike Price, including currency)]; and
WHEREAS, the Corporation desires the Warrant Agent to act on behalf of
the Corporation, and the Warrant Agent is willing so to act, in connection with
the issuance, transfer, exchange, exercise and cancellation of the Warrants, and
the Corporation desires to set forth herein, among other things, the provisions
of the Warrants and the terms and conditions under which they may be issued,
transferred, exchanged, exercised and canceled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants; Book-Entry
Procedures; Successor Depository. (a) Each Warrant shall represent the right,
subject to the provisions contained herein and therein, to receive the Cash
Settlement Value (as defined in Section 2.02(g)) [or the Cancellation Amount (as
defined in Section 2.04(b)), as the case may be,] of such Warrant. Such Cash
Settlement Value [or
<PAGE>
Cancellation Amount, as the case may be,] shall be payable in [U.S. dollars
(specify other currency if applicable)]. In no event shall any registered
holder of a Warrant (each, a "Holder") or any Owner (as defined in Section
1.01(c)) be entitled to receive any interest on any Cash Settlement Value [or
Cancellation Amount, as the case may be]. No Warrant shall require or entitle
the Holder or Owner thereof to sell, deliver, purchase or take delivery of any
amount of the Base Currency to or from the Corporation, nor shall the
Corporation be under any obligation to purchase or take delivery of, or sell or
deliver, any amount of such Base Currency to or from the Holders or Owners
thereof.
(b) The Warrants shall constitute direct, unconditional and unsecured
obligations of the Corporation.
(c) The Warrants shall initially be issued in book-entry form and
represented by one or more global certificates (each, a "Global Warrant
Certificate"). Owners of beneficial interests in a Global Warrant Certificate
(each, an "Owner") shall not be entitled to receive definitive certificates
evidencing the Warrants; provided, however, that the Corporation shall issue
Warrants in definitive form (each, a "Definitive Warrant Certificate", and with
the Global Warrant Certificates, the "Warrant Certificates") in exchange for a
Global Warrant Certificate if (i) the Depository (as defined in Section 1.01(d))
has notified the Corporation that it is unwilling or unable to continue as
Depository for such Global Warrant Certificate or if at any time it has ceased
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when it is required to be so registered in order to act as
Depository, and a successor Depository is not appointed by the Corporation
within 90 days, (ii) the Corporation at any time shall determine to have the
Warrants represented by Definitive Warrant Certificates and shall execute and
deliver to the Warrant Agent a written order signed in the name of the
Corporation by its Chairman of the Board, its Vice Chairman, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary (each such order, a "Corporation Order") stating that the
Corporation wishes to issue Warrants in definitive form in exchange for such
Global Warrant Certificate, or (iii) there shall have occurred and be continuing
a default in the payment of the Cash Settlement Amount [or Cancellation Amount,
as the case may be,] with respect to the Warrants. In any such instance, and in
accordance with the provisions of this Agreement,
-2-
<PAGE>
each Owner shall be entitled to have registered in its name the number of
Warrants in definitive form equivalent to such Owner's beneficial interest in
such Global Warrant Certificate and shall be entitled to physical delivery of
Definitive Warrant Certificates representing such Warrants by the Depository
Participant or Indirect Participant (each as defined in Section 1.01(d)) through
which such Owner's beneficial interest is reflected.
(d) Each Global Warrant Certificate shall initially be registered in
the name of, and the Holder of each Warrant represented by such Global Warrant
Certificate shall be, [The Depository Trust Company] or its agent (the
"Depository", which term shall include any nominee of the Depository and any
successor depository selected by the Corporation as provided in Section
1.01(e)), and shall be deposited with the Depository or its agent for credit to
the accounts of the Depository Participants as shown on the records of the
Depository from time to time. The Warrant holdings of Depository Participants
shall be recorded on the books of the Depository. The Warrant holdings of
Indirect Participants and of Owners who are customers of Depository Participants
shall be reflected on the books and records of such Depository Participants and
shall not be known to the Warrant Agent, the Corporation or the Depository. The
Warrant holdings of Owners who are customers of Indirect Participants shall be
reflected on the books and records of such Indirect Participants and shall not
be known to the Warrant Agent, the Corporation, the Depository Participants or
the Depository. Neither the Corporation nor the Warrant Agent shall have any
responsibility or liability for any aspect of the records relating to beneficial
ownership interests in a Global Warrant Certificate or for maintaining,
supervising or reviewing any records relating to any such beneficial ownership
interest. As used herein, the term "Depository Participant" shall include any
participant in the Depository's system and, for purposes of this Agreement,
shall also mean any participant in the book-entry system of any successor
Depository. As used herein, the term "Indirect Participant" shall include any
other bank, securities dealer, trust company or other Person (as defined below)
that clears or maintains a custodial relationship with a Depository Participant,
either directly or indirectly. As used herein, the term "Person" shall include
any individual, corporation, partnership, joint venture, association, joint-
stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
(e) The Corporation may from time to time select a new Person to act
as Depository and, if such selection is
-3-
<PAGE>
made, the Corporation shall promptly give the Warrant Agent and the existing
Depository notice to such effect identifying the new Depository. As promptly as
practicable thereafter, the Depository shall deliver each Global Warrant
Certificate then held by it to the Warrant Agent, and the Warrant Agent shall
register the transfer of such Global Warrant Certificate to the new Depository
as provided in Section 1.04. Appropriate changes may be made in each Global
Warrant Certificate, and in the notice of exercise and the related notices
delivered in connection with an exercise or deemed exercise of Warrants to
reflect the selection of the new Depository.
Section 1.02. Form; Denominations; Execution, Countersignature,
Delivery and Dating of Global Warrant Certificates. (a) At any time and from
time to time after the execution and delivery of this Agreement, the Corporation
may deliver one or more Global Warrant Certificates, each representing any
integral number of Warrants [not exceeding ________________ Warrants originally
issued,] executed by the Corporation as set forth in Section 1.02(b), to the
Warrant Agent for countersignature, together with a Corporation Order for the
countersignature and delivery of such Warrants, and the Warrant Agent shall
manually countersign and deliver such Warrants in accordance with such
Corporation Order. During such time as Warrants shall be represented by Global
Warrant Certificates, the Corporation may issue additional Warrants in
accordance with the terms of this Agreement either by issuing an additional
Global Warrant Certificate or by issuing a new Global Warrant Certificate in
exchange for the existing Global Warrant Certificate, provided that any such
exchange shall conform to the requirements set forth in Section 1.04(f).
(b) Each Global Warrant Certificate, whenever issued, shall be in
registered form substantially in the form of Exhibit A, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. Each Global Warrant Certificate shall be printed,
lithographed, typewritten, mimeographed or engraved on steel engraved borders or
otherwise reproduced in any other manner as may be approved by the officers
executing the same (such execution to be conclusive evidence of such approval)
and may have imprinted or otherwise reproduced thereon such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the officers of the Corporation executing the same may approve (such execution
to be conclusive evidence of such approval) and that are not inconsistent with
the provisions of this Agreement, or as may be required to comply with any law
or
-4-
<PAGE>
with any rule or regulation made pursuant thereto, or with any rule or
regulation of any securities exchange on which the Warrants may be listed, or of
the Depository, or to conform to usage. Each Global Warrant Certificate shall be
signed on behalf of the Corporation by its Chairman of the Board, its Vice
Chairman, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any such officer on any Global Warrant Certificate
may be either manual or facsimile. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Global Warrant Certificate that has
been duly countersigned and delivered by the Warrant Agent.
(c) No Global Warrant Certificate shall be entitled to any benefit
under this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, unless such Global Warrant Certificate
has been countersigned by the Warrant Agent. Such signature by the Warrant
Agent upon any Global Warrant Certificate executed by the Corporation shall be
conclusive evidence, and the only evidence, that such Global Warrant Certificate
so countersigned has been duly issued hereunder.
(d) Any Global Warrant Certificate bearing the manual or facsimile
signatures of individuals who were at the time of such signature the proper
officers of the Corporation shall bind the Corporation, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
countersignature and delivery of such Global Warrant Certificate or did not hold
such offices at the date of such Global Warrant Certificate.
(e) Each Global Warrant Certificate shall be dated the date of its
countersignature.
Section 1.03. Definitive Warrant Certificates. (a) Any Definitive
Warrant Certificate issued in accordance with Section 1.01(c), whenever issued,
shall be in registered form substantially in the form of Exhibit A, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement or necessary or desirable for individual
Definitive Warrant Certificates, provided that each such Definitive Warrant
Certificate shall have imprinted on the reverse thereof the Exercise Notice
substantially in the form of Exhibit B-2. Each Definitive Warrant Certificate
may represent any integral number of Warrants [not exceeding ________________
Warrants originally issued], shall be
-5-
<PAGE>
printed, lithographed, typewritten, mimeographed or engraved on steel engraved
borders or otherwise reproduced in any other manner as may be approved by the
officers executing the same (such execution to be conclusive evidence of such
approval), and may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the officers of the Corporation executing the same may approve
(such execution to be conclusive evidence of such approval) and that are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto, or
with any rule or regulation of any securities exchange on which the Warrants may
be listed, or of the Depository, or to conform to usage. Each Definitive Warrant
Certificate shall be signed on behalf of the Corporation upon the same
conditions, in substantially the same manner and with the same effect as set
forth in Section 1.02 with respect to Global Warrant Certificates.
(b) Each Definitive Warrant Certificate, when so signed on behalf of
the Corporation, shall be delivered to the Warrant Agent together with a
Corporation Order for the countersignature and delivery of such Warrants, and
the Warrant Agent shall manually countersign and deliver such Warrants in
accordance with such Corporation Order upon the same conditions, in
substantially the same manner and with the same effect as set forth in Section
1.02 with respect to Global Warrant Certificates. Each Definitive Warrant
Certificate shall be dated the date of its countersignature.
(c) No Definitive Warrant Certificate shall be entitled to any
benefit under this Agreement or be valid or obligatory for any purpose, and no
Warrant evidenced thereby shall be exercisable, unless such Definitive Warrant
Certificate has been countersigned by the Warrant Agent. Such signature by the
Warrant Agent upon any Definitive Warrant Certificate executed by the
Corporation shall be conclusive evidence, and the only evidence, that such
Definitive Warrant Certificate so countersigned has been duly issued hereunder.
(d) Any Definitive Warrant Certificate bearing the manual or facsimile
signatures of individuals who were at the time of such signature the proper
officers of the Corporation shall bind the Corporation, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
countersignature and delivery of such Definitive Warrant Certificate or did not
hold such offices at the date of such Definitive Warrant Certificate.
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(e) Definitive Warrant Certificates delivered in exchange for a
Global Warrant Certificate shall be registered in such names and addresses
(including tax identification numbers) and in such denominations as shall be
requested in writing by the Depository or its nominee in whose name such Global
Warrant Certificate is registered, upon written certification to the Corporation
and the Warrant Agent, in form satisfactory to each of them, of the existing
beneficial ownership interests in such Global Warrant Certificate.
(f) The Holder of any Warrant represented by a Definitive Warrant
Certificate shall be the Person in whose name such Definitive Warrant
Certificate is registered in the Warrant Register (as defined in Section 1.04)
at such time.
Section 1.04. Maintenance of Warrant Register; Registration of
Transfers and Exchanges of Global Warrant Certificates. (a) The Corporation
shall cause to be kept at the Warrant Agent Office (as defined in Section
1.04(b)) a register (the "Warrant Register"), which may be maintained
electronically and in which, subject to such reasonable regulations as it may
prescribe, the Corporation shall provide for the registration and registration
of transfer, exchange, exercise and cancellation of Warrants. The Warrant Agent
is hereby appointed "Warrant Registrar" for the purpose of registering Warrant
Certificates and transfers and exchanges of Warrant Certificates as herein
provided.
(b) A Warrant Certificate may be transferred at the option of the
Holder thereof upon surrender of such Warrant Certificate at the office or
agency of the Warrant Agent maintained for the purpose of transferring,
exchanging, exercising and canceling the Warrants, which shall be south of
Chambers Street in the Borough of Manhattan, The City of New York (the "Warrant
Agent Office"), and which is, on the date of this Agreement,
_______________________, New York, New York, _____, Attention: [Corporate Trust
Department], or at the office of any successor Warrant Agent as provided in
Article IV. Upon any such registration of transfer, the Corporation shall
execute, and the Warrant Agent shall countersign and deliver, as provided in
Section 1.02 or 1.03, as the case may be, in the name of the designated
transferee a new Global Warrant Certificate or Definitive Warrant Certificate,
as the case may be, of like tenor, of any authorized denomination and
representing in the aggregate a like number of unexercised Warrants as evidenced
by such Warrant Certificate at the time of such registration of
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transfer, and bearing a number not contemporaneously outstanding.
(c) A Warrant Certificate may be exchanged at the option of the
Holder thereof for other Global Warrant Certificates or Definitive Warrant
Certificates, as the case may be, of like tenor, of any authorized denomination
and representing in the aggregate a like number of unexercised Warrants, upon
surrender of such Warrant Certificate at the Warrant Agent Office. Whenever any
Warrant Certificate is so surrendered for exchange, the Corporation shall
execute, and the Warrant Agent shall countersign and deliver, as provided in
Section 1.02 or 1.03, as the case may be, the Global Warrant Certificates or
Definitive Warrant Certificates, as the case may be, that the Holder of such
exchanged Warrant Certificate is entitled to receive and bearing a number not
contemporaneously outstanding.
(d) Any Warrant Certificate presented or surrendered for registration
of transfer or for exchange shall be duly endorsed or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent
and the Corporation, duly signed by the registered Holder thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed by a bank or trust company, by a broker or dealer
that is a member of the National Association of Securities Dealers, Inc. or by a
member of a national securities exchange.
(e) Except as otherwise provided herein or in a Global Warrant
Certificate, the Warrant Agent shall register the transfer of such Global
Warrant Certificate on the records of the Warrant Agent only to the Depository,
to a nominee of the Depository, to a successor Depository or to a nominee of the
successor Depository.
(f) A Global Warrant Certificate may be exchanged for a new Global
Warrant Certificate to reflect the issuance by the Corporation of additional
Warrants[; provided, however, that in no event shall the number of Warrants
represented by any Global Warrant Certificate exceed ___________________
originally issued]. To effect such an exchange, the Corporation shall deliver
to the Warrant Agent a new Global Warrant Certificate duly executed on behalf of
the Corporation as provided in Section 1.02, together with a Corporation Order
for the countersignature and delivery of such Warrants. The Warrant Agent shall
countersign such new Global Warrant Certificate as provided in Section 1.02 and
in accordance with such Corporation Order, and shall deliver such new Global
Warrant Certificate to the Depository in
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exchange for, and upon receipt of, the Global Warrant Certificate then held by
the Depository. The Warrant Agent shall cancel the Global Warrant Certificate
delivered to it by the Depository and return the canceled Global Warrant
Certificate to the Corporation.
(g) All Warrant Certificates issued upon any registration of transfer
or exchange of Global Warrant Certificates or Definitive Warrant Certificates,
as the case may be, shall be valid obligations of the Corporation, evidencing
the same obligations of the Corporation and entitled to the same benefits under
this Agreement, as the Warrant Certificates surrendered upon such registration
of transfer or exchange. The Warrant Agent shall not be required to effect any
exchange or transfer that would result in the issuance of a Warrant Certificate
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant.
(h) No service charge shall be made for any registration of transfer
or exchange of Warrant Certificates, but the Corporation may require payment of
a sum sufficient to cover any stamp or other tax or other governmental charge
that may be imposed in connection with any such transfer or exchange.
Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant
Certificates. (a) If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Corporation shall execute, and the Warrant Agent shall
countersign and deliver in exchange therefor, as provided in Section 1.02 or
1.03, as the case may be, a new Warrant Certificate of like tenor representing a
like number of unexercised Warrants and bearing a number not contemporaneously
outstanding.
(b) If there shall be delivered by a Holder of a Warrant Certificate
to the Corporation and the Warrant Agent (i) evidence to their satisfaction of
the destruction, loss or theft of any Warrant Certificate, (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, and (iii) funds sufficient to cover any cost or expense
to the Corporation (including any fees charged by the Warrant Agent) relating to
the issuance of a new Warrant Certificate, then, in the absence of notice to the
Corporation or the Warrant Agent that such Warrant Certificate has been acquired
by a bona fide purchaser, the Corporation shall execute, and the Warrant Agent
shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case
may be, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new
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Warrant Certificate of like tenor representing a like number of unexercised
Warrants and bearing a number not contemporaneously outstanding.
(c) If the Warrants evidenced by any such mutilated, destroyed, lost
or stolen Warrant Certificate have been exercised, or have been or are about to
be deemed to be exercised, the Corporation in its discretion may, instead of
issuing a new Warrant Certificate, treat the same as if it had received written
irrevocable notice of exercise in good form in respect thereof, as provided
herein.
(d) Upon the issuance of any new Warrant Certificate under this
Section, the Corporation may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Warrant Agent)
connected therewith.
(e) Every new Warrant Certificate issued pursuant to this Section
1.05 in lieu of any mutilated, destroyed, lost or stolen Warrant Certificate
shall constitute an original additional contractual obligation of the
Corporation, whether or not the mutilated, destroyed, lost or stolen Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all
other Warrant Certificates duly issued hereunder.
(f) The provisions of this Section 1.05 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 1.06. Cancellation of Warrants. (a) If the Corporation
shall purchase or otherwise acquire Warrants represented by a Global Warrant
Certificate, such Warrants may, at the option of the Corporation and upon
notification to the Warrant Agent, be surrendered free through a Depository
Participant for credit to the Warrant Account (as defined in Section 2.01(b))
and if so credited, the Warrant Agent shall promptly note the cancellation of
such Warrants by notation on the records of the Warrant Agent and on the Warrant
Register.
(b) When all of the Warrants represented by any Global Warrant
Certificate have been exercised by the Owner thereof, automatically exercised or
otherwise canceled, and
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upon receipt of the same by the Warrant Agent, the Warrant Agent shall promptly
cancel such Global Warrant Certificate.
(c) The Corporation may at any time deliver to the Warrant Agent for
cancellation any Definitive Warrant Certificates previously countersigned and
delivered hereunder that the Corporation may have acquired in any manner
whatsoever, and the Warrant Agent shall promptly cancel all Definitive Warrant
Certificates so delivered.
(d) All Warrant Certificates surrendered for exercise, registration
of transfer or exchange or cancellation, if surrendered to any Person other than
the Warrant Agent, shall be delivered to the Warrant Agent, and the Warrant
Agent shall promptly cancel all such Warrant Certificates and all other Warrant
Certificates surrendered to it for exercise, registration of transfer or
exchange or cancellation.
(e) No Warrant Certificate shall be countersigned in lieu of or in
exchange for any Warrant Certificate canceled as provided in this Section 1.06
except as expressly permitted by this Agreement. All canceled Warrant
Certificates held by the Warrant Agent shall be destroyed by it unless by
written order the Corporation requests their return to it.
ARTICLE II
[EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS
Section 2.01. Duration of Warrants; Method of Exercise; Minimum [and
Maximum] Exercise Amounts; Notice of Exercise. (a) Subject to the limitations
described herein, each Warrant may be exercised in whole but not in part on any
New York Business Day (as defined in Section 2.01(f)) from [its date of issuance
(specify other date if applicable)] until [3:00 P.M.], New York City time, on
the earlie[st] of (i) [______________ (specify date upon which right to exercise
Warrants expires)] or, if such date is not a New York Business Day, on the next
succeeding New York Business Day (the "Expiration Date"), [or] (ii) the date of
automatic exercise as provided in Section 2.03 [or (iii) the date of
cancellation as provided in Section 2.04][; provided that the Corporation may
temporarily suspend the right of the Holders to exercise their Warrants pursuant
to the provisions of Section 2.08]. [No exercise price shall be payable by any
Holder or Owner in connection with the exercise of any Warrant.] [The exercise
price for each Warrant shall be $_____ and shall be payable [in U.S.
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dollars (specify other currency if applicable)] (the "Exercise Price").]
(b) Except in the case of automatic exercise, each Warrant may be
exercised by:
(i) in the case of any Warrant represented by a Global Warrant
Certificate (each, a "Book-Entry Warrant"), (A) transfer of such Warrant on
the records of the Depository free to the Warrant Agent's Depository
Participant account (entitled ____________________), or such other account
of the Warrant Agent at the Depository as the Warrant Agent shall specify
(the "Warrant Account"), [and] (B) delivery to the Warrant Agent as
provided in Section 2.01(d)(i)(C) of written notice (an "Exercise Notice")
duly completed and executed by a Depository Participant acting on behalf of
the Owner of such Warrant [and (C) payment of the Exercise Price [in U.S.
dollars (specify other currency if applicable)] [in cash or by cashier's
check or official bank check in New York Clearing House funds] [by bank
wire transfer in immediately available funds] payable to the account of the
Corporation]; and
(ii) in the case of Warrants represented by a Definitive Warrant
Certificate (each, a "Certificated Warrant"), (A) surrender of such
Definitive Warrant Certificate to the Warrant Agent at the Warrant Agent
Office, [and] (B) delivery to the Warrant Agent as provided in Section
2.01(d)(ii)(C) of an Exercise Notice duly completed and executed by the
Holder of such Warrant [and (C) payment of the Exercise Price [in U.S.
dollars (specify other currency if applicable)] [in cash or by cashier's
check or official bank check in New York Clearing House funds] [by bank
wire transfer in immediately available funds] payable to the account of the
Corporation];
provided, however, that each Exercise Notice is subject to rejection by the
Warrant Agent as provided herein.
(c) Not fewer than [specify minimum exercise amount] [nor more than
[specify maximum exercise amount]] Warrants may be exercised by or on behalf of
any one Owner or, in the case of Certificated Warrants, any one Holder at any
one time, except that no such minimum [or maximum] exercise amount shall apply
in the case of (i) the automatic exercise of any Warrants, or (ii) the exercise
of any Warrants on the Expiration Date.
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(d) An Exercise Notice [may be conditioned as set forth in Section
2.02(b), but] shall [otherwise] be unconditional. Each Exercise Notice shall be
irrevocable and:
(i) in the case of any Book-Entry Warrant, shall (A) be in the form of
Exhibit B-1 hereto, [(B) shall include a certification by the Depository
Participant submitting such Exercise Notice that the Owners affected by
such Exercise Notice are not Currency Country Residents (as defined in
Section 2.01(f))] and (C) shall be sent to the Warrant Agent in writing at
its address as set forth in such form of Exercise Notice or at such other
address as the Warrant Agent may specify from time to time by notice given
in accordance with Section 8.05; and
(ii) in the case of any Certificated Warrant, shall (A) be in the form
of Exhibit B-2 hereto and shall, unless otherwise agreed by the Corporation
and the Warrant Agent, be set forth on the reverse of the Definitive
Warrant Certificate representing such Certificated Warrant, [(B) shall
include a certification by the Holder of such Certificated Warrants that
such Holder is not a Currency Country Resident] and (C) shall be sent to
the Warrant Agent in writing at its address as set forth in such form of
Exercise Notice or at such other address as the Warrant Agent may specify
from time to time by notice given in accordance with Section 8.05.
(e) Except as provided in Section 2.02(c), the Warrant Agent and the
Corporation shall be entitled to rely conclusively on any Exercise Notice
received by the Warrant Agent with no duty of inquiry by either of them.
(f) As used in this Agreement, "New York Business Day" means any day
other than a Saturday or Sunday or a day on which the [New York Stock Exchange
or American Stock Exchange (list any other relevant securities exchanges)] is
not open for securities trading or banking institutions generally in The City of
New York are authorized or required by law or executive order to close;
"Currency Country Business Day" means any day other than (i) a Saturday or
Sunday or a day on which banking institutions generally in [(specify name of
Currency country)] are authorized or required by law or executive order to close
or (ii) a day on which the [(list names of relevant exchanges)] are not open for
business[; and "Currency Country Resident" means a resident of, or any
corporation or other Person organized under the laws of [(specify name of
Currency country)], its
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territories, its possessions or other areas subject to its jurisdiction].
Section 2.02. Exercise of Warrants. (a) Except in the case of
automatic exercise as provided in Section 2.03 [or cancellation as provided in
Section 2.04] and subject to Section 2.02(c)([ii]) [and 2.02(f)], the exercise
date (the "Exercise Date") for a Warrant shall be (i) the New York Business Day
on which the Warrant Agent receives delivery of such Warrant to the Warrant
Account, in the case of Book-Entry Warrants, or of the Definitive Warrant
Certificate representing such Warrant at the Warrant Agent Office, in the case
of Certificated Warrants, [and] an Exercise Notice relating to such Warrant in
good order [and payment of the Exercise Price in the manner specified in Section
2.01(b)], if such receipt occurs at or prior to [3:00] P.M., New York City time,
on such New York Business Day, and (ii) otherwise the New York Business Day next
succeeding the day on which the Warrant Agent receives such Warrant[, the
Exercise Price] and such Exercise Notice, which next succeeding New York
Business Day shall be the day on which such Warrant[, Exercise Price] and
Exercise Notice shall be deemed to have been received. If any Exercise Notice[,
the related Exercise Price] or the Warrants to which such Exercise Notice
relates are received after [3:00] P.M., New York City time, on the Expiration
Date, such Exercise Notice shall be void and of no effect and shall be deemed
not to have been delivered. Except in the case of automatic exercise as
provided in Section 2.03, the "Valuation Date" for a Warrant shall be the first
Currency Country Business Day next succeeding the Exercise Date of such Warrant.
[The "Designated Exercise Date" for a Warrant shall be the date that, but for
the provisions of Section 2.02(f), would be the Exercise Date for such Warrant
in accordance with this Section 2.02(a).]
[(b) Notwithstanding anything in this Agreement to the contrary, if a
Depository Participant, in the case of Book-Entry Warrants, or a Holder, in the
case of Certificated Warrants, has specified in its Exercise Notice that such
Exercise Notice is conditional (a "Conditional Exercise Notice"), then such
Conditional Exercise Notice shall be void and of no effect, and shall be
disregarded for all purposes of this Agreement, if [Describe the terms upon
which the Exercise Notice may be conditional, which may be as follows: the Spot
Rate (as defined in Section 2.02(g)) on the day that, but for the provisions of
this Section 2.02(b), would be the Valuation Date for such Warrants is more than
__________ [above] [below] the Spot Rate on the [Designated] Exercise Date of
such Warrants (or, if the [Designated] Exercise Date is not a Currency Country
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Business Day, on the immediately preceding Currency Country Business Day) (the
"Reference Value").]
(c) Following receipt of proper delivery of any Warrant[, the
Exercise Price] and the Exercise Notice related to such Warrant in accordance
with Section 2.01(b), the Warrant Agent shall:
[(i) deposit all funds received by it in payment of the Exercise Price
of such Warrant to the account of the Corporation maintained with it for
such purpose (unless otherwise instructed in writing by the Corporation),
and advise the Corporation by telephone and in writing, by facsimile
transmission or otherwise, at the end of each day on which any such payment
is received of the amount so deposited to its account;]
(ii)(A) in the case of a Book-Entry Warrant, promptly determine
whether such Exercise Notice has been duly completed and is in proper form
and verify that the Person that executed such Exercise Notice is listed as
a Depository Participant in the most recent published edition of the
Depository's Eligible Corporate Securities Book (or the comparable
publication of any successor Depository) and, if such Person is not listed
therein, make reasonable efforts to obtain verbal verification from the
Depository's Planning Department (telephone number 212-709-1000) (or the
comparable department of a successor Depository) that such Person is a
Depository Participant; and (B) in the case of a Certificated Warrant,
promptly determine whether such Exercise Notice has been duly completed and
is in proper form and whether the Definitive Warrant Certificate
representing such Warrant is in proper form;
(iii)(A) in the case of a Book-Entry Warrant, if the Warrant Agent
determines that such Exercise Notice has not been duly completed or is not
in proper form, or is unable through the procedures described in clause
([ii])(A) above to verify that the Person that submitted such Exercise
Notice is a Depository Participant, then the Warrant Agent shall reject
such Exercise Notice and shall send to the Depository Participant that
submitted such Exercise Notice a notice of rejection substantially in the
form of Exhibit C hereto (a "Rejection Notice") and redeliver the Warrants
to which such rejected Exercise Notice relates free through the facilities
of the Depository to the account from which they were transferred; and (B)
in the case of a Certificated Warrant, if the
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Warrant Agent determines that such Exercise Notice has not been duly
completed or is not in proper form, or that the Definitive Warrant
Certificate representing such Warrant is not in proper form, then the
Warrant Agent shall reject such Exercise Notice and shall send a Rejection
Notice to the Holder of such Warrants and return such Definitive Warrant
Certificate to such Holder by first class mail at the expense of the
Corporation;
(iv) by [5:00 P.M.], New York City time, on the New York Business Day
on which such Exercise Notice is received (or deemed to have been
received), notify the Corporation (and such other parties (not to exceed
two) as the Corporation shall designate in writing) of (A) the total number
of Warrants in respect of which Exercise Notices were received (or deemed
to have been received) at or prior to [3:00 P.M.], New York City time, on
such date [and] (B) the number of such Exercise Notices that were rejected
by the Warrant Agent pursuant to clause ([iii]) above and the aggregate
number of Warrants to which such rejected Exercise Notices relate[, and (C)
the number of such Exercise Notices that were Conditional Exercise Notices
and the aggregate number of Warrants to which such Conditional Exercise
Notices relate];
[(v) if any of such Exercise Notices are Conditional Exercise
Notices, by [5:00 P.M.], New York City time, on the Valuation Date for such
Warrants (or, if such Valuation Date is not a New York Business Day, on the
next succeeding New York Business Day), (A) determine the Reference Value
for such Warrants and the Spot Rate for the date that, but for the
provisions of Section 2.02(b), would be the Valuation Date of such
Warrants; (B) determine whether any Conditional Exercise Notices have
become void pursuant to such Section 2.02(b); and (C) if so, promptly
notify the Corporation (and such other parties (not to exceed two) as the
Corporation shall designate in writing) and send a Rejection Notice to the
appropriate Depository Participant or Holder, as the case may be, and (x)
in the case of Book-Entry Warrants, redeliver such Warrants free through
the facilities of the Depository to the account from which they were
transferred or (y) in the case of Certificated Warrants, return such
Warrants to such Holder by first class mail at the expense of the
Corporation.]
(vi) by [5:00 P.M.], New York City time, on the Valuation Date for
such Warrants (or, if such Valuation
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Date is not a New York Business Day, on the next succeeding New York
Business Day), determine the aggregate number of Warrants covered by
Exercise Notices that have not [become void pursuant to Section 2.02(b) or]
been rejected pursuant to clause ([iii]) above (the "[Exercised] [Tendered]
Warrants");
[(vii) by [5:00 P.M.], New York City time, on the Valuation Date for
the Tendered Warrants (or, if such Valuation Date is not a New York
Business Day, on the next succeeding New York Business Day), determine
pursuant to Section 2.02(f) the number of such Tendered Warrants that shall
not be Delayed Exercise Warrants (such Tendered Warrants, the "Exercised
Warrants");]
(viii) by [5:00 P.M.], New York City time, on the Valuation Date for
the Exercised Warrants (or, if such Valuation Date is not a New York
Business Day, on the next succeeding New York Business Day), (A) determine
the Cash Settlement Value of the Exercised Warrants, (B) notify the
Corporation (and such other parties (not to exceed two) as the Corporation
shall designate in writing) of the aggregate Cash Settlement Value with
respect to such Exercised Warrants, and (C) send notice of confirmation of
exercise in substantially the form of Exhibit D hereto to the appropriate
Depository Participant or Holder, as the case may be; and
(ix) promptly deliver a copy of each such Exercise Notice to the
Corporation and advise the Corporation of such other matters relating to
any of the Warrants covered thereby, whether or not they constitute
[Tendered Warrants or] Exercised Warrants, as the Corporation shall
reasonably request.
(d) At or before [3:00 P.M.], New York City time, on the [second] New
York Business Day following the Valuation Date for any Exercised Warrants (or,
if such Valuation Date is not a New York Business Day, on the [third] New York
Business Day after such Valuation Date) (such date, with respect to such
Exercised Warrants, the "Settlement Date"), the Corporation shall make available
to the Warrant Agent funds in an amount equal to, and for the payment of, the
aggregate Cash Settlement Value of such Exercised Warrants. On the New York
Business Day on which the Corporation has made adequate funds available to the
Warrant Agent at or prior to [3:00 P.M.], New York City time, the Warrant Agent
shall make payment available (i) if the Exercised Warrants are Book-Entry
Warrants, in the form of a wire transfer to the appropriate Depository
Participant after [3:00 P.M.], New York City time, but prior to the
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close of business, on such day, such payment to be in the amount of the
aggregate Cash Settlement Value of the Exercised Warrants exercised by such
Depository Participant, and (ii) if the Exercised Warrants are Certificated
Warrants, in the form of one or more cashier's checks or official bank checks to
each appropriate Holder after [3:00 P.M.], New York City time, but prior to the
close of business, on such day, such payment to be in the amount of the Cash
Settlement Value of the Exercised Warrants exercised by such Holder. In the case
of payments by the Warrant Agent to a Depository Participant, the Warrant Agent
shall have no responsibility for the crediting by such Depository Participant of
the Cash Settlement Value of such Warrants to the appropriate Owners.
(e) (i) The Warrant Agent shall cause its records, which may be kept
electronically, to be marked to reflect the reduction in the number of Warrants
evidenced by each Global Warrant Certificate by the number of such Warrants for
which payment has been made available as provided in Section 2.02(d) promptly
after such payment has been made available. In the absence of manifest error,
the Warrant Agent's records shall be conclusive evidence as to such matters.
(ii) If any Definitive Warrant Certificate shall be surrendered to the
Warrant Agent for exercise of fewer than all the Warrants represented thereby,
the Corporation shall execute, and the Warrant Agent shall countersign, as
provided in Section 1.02 or 1.03, as the case may be, and deliver to the Holder
of such Warrants by first class mail at the expense of the Corporation a new
Definitive Warrant Certificate of like tenor representing all Warrants remaining
unexercised after such exercise and bearing a number not contemporaneously
outstanding.
[(f) The Corporation may, at its sole option, elect to limit the
aggregate number of Warrants for which any Designated Exercise Date shall be the
Exercise Date to a number not less than ________________ (the "Maximum
Exercisable Number").
(i) The Corporation may, at its sole option, notify the Warrant Agent
in writing (including by facsimile transmission) not later than [3:00
P.M.], New York City time, on the Valuation Date with respect to any
Tendered Warrants (or, if such Valuation Date is not a New York Business
Day, on the next succeeding New York Business Day), that the Corporation
has elected to exercise its option under this Section 2.02(f) to limit the
number of such Tendered Warrants for which the
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Exercise Date to which such Valuation Date relates shall be the Designated
Exercise Date for such Warrants to a number (the "Elected Maximum Number")
not smaller than the Maximum Exercisable Number. If the Warrant Agent shall
not have received such notice by such time, none of the following
provisions in this Section 2.02(f) shall apply to such Tendered Warrants,
such Designated Exercise Date shall be the Exercise Date for such Tendered
Warrants, and all of such Tendered Warrants shall be deemed to be
"Exercised Warrants" for purposes of this Agreement.
(ii) If the Warrant Agent shall have received the notice contemplated
by clause (i) above by the time specified in such clause (i), then prior to
[5:00 P.M.], New York City time, on such Valuation Date (or, if such
Valuation Date is not a New York Business Day, on the next succeeding New
York Business Day), the Warrant Agent shall select by lot from all such
Tendered Warrants, subject to clause (iii) below, Tendered Warrants for
which the Exercise Date shall be such Designated Exercise Date in an
aggregate number equal to the Elected Maximum Number; provided that if, as
a result of such selection, any Owner or Holder, as the case may be, would
be deemed to have exercised less than [(specify minimum exercise amount)]
Warrants, then the Warrant Agent shall first select additional Tendered
Warrants of such Owners or Holders so that no such Owner or Holder shall be
deemed to have exercised fewer than [(specify minimum exercise amount)]
Warrants. Only the Tendered Warrants so selected shall be deemed to be
"Exercised Warrants" for purposes of Section 2.02(c). The Tendered
Warrants not so selected shall be referred to herein as "Delayed Exercise
Warrants" and shall be subject to exercise as provided in clause (iii)
below.
(iii) For purposes of this Section 2.02, each Delayed Exercise
Warrant shall be deemed to have a new Designated Exercise Date on the New
York Business Day next succeeding its original Designated Exercise Date,
and this Section 2.02 shall apply to such Delayed Exercise Warrants as if
one or more Exercise Notices with respect to the Delayed Exercise Warrants
had been received by the Warrant Agent prior to [3:00 P.M.], New York City
time, on such New York Business Day, provided that (x) any Delayed Exercise
Warrant with respect to which any such deemed Designated Exercise Date is
on or after the earlier of the Expiration Date and the Delisting Date shall
be subject to automatic exercise as provided in Section 2.03[, and (y) the
Reference
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Value for any Delayed Exercise Warrant covered by a Conditional Exercise
Notice shall in any event be determined by reference to the original
Designated Exercise Date therefor (or, if such date is not a Currency
Country Business Day, on the immediately preceding Currency Country
Business Day)]; provided, however, that, other than in the case of
automatic exercise [or cancellation], if the aggregate number of such
Delayed Exercise Warrants, together with any additional Tendered Warrants
for which the Designated Exercise Date is such New York Business Day shall
again exceed the Maximum Exercisable Number, the provisions of this Section
2.02(f) shall apply, mutatis mutandis, to the exercise of such Delayed
Exercise Warrants and such additional Tendered Warrants, provided that such
Delayed Exercise Warrants shall be given priority over such additional
Tendered Warrants in the selection pursuant to clause (ii) above, and among
such Delayed Exercise Warrants, priority in such selections shall be given
to Warrants in the order of their original Designated Exercise Dates, with
Warrants having the same original Designated Exercise Date being selected
by lot as described in clause (ii) above.
(iv) In connection with any issuance by the Corporation of additional
Warrants under this Agreement, the Corporation shall have the right, but
shall not be obligated, to increase the Maximum Exercisable Number.]
(g) For purposes of this Agreement:
The "Cash Settlement Value" of any Warrant that is exercised (whether
exercised automatically or by Exercise Notice) shall mean the amount,
stated in U.S. dollars, computed by subtracting [from 50] [50 from] an
amount equal to 50 times a fraction, the numerator of which is the Spot
Rate on the Exercise Date and the denominator of which is the Strike Price
(as defined below), provided that if such amount is less than zero, the
Cash Settlement Value shall be zero.
The "Strike Price" of a Warrant shall mean [Insert amount or method
for determining amount].
The "Spot Rate" on any date shall mean the offered spot rate of
________ [U.S. dollars (or specify other Reference Currency)] for
____________ [(specify Base Currency)] as quoted by __________ (the "Spot
Rate Reference Bank") at 10:00 A.M., New York City time, on such date or,
if such bank is not quoting such rate at
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such time, the rate quoted by such other leading bank in the foreign
exchange markets as may be selected by the Corporation in good faith and
notified to the Warrant Agent. The Spot Rate shall be calculated to
__________ decimal places.
"U.S. dollars", "U.S.$" or "$" are references to the currency of the
United States of America.
"[Base currency] or "[_______________]" are references to the currency
of [(specify name of Currency country)].
(h) Any notice to be given to the Corporation by the Warrant Agent
pursuant to this Section 2.02 or Section 2.03 shall be by telephone (promptly
confirmed in writing) or telecopy (receipt to be promptly confirmed by
telephone). Any notice to be given to the Spot Rate Reference Bank pursuant to
this Section 2.02 or Section 2.03 shall be by telecopy (receipt to be promptly
confirmed by telephone).
Section 2.03. Automatic Exercise of Warrants. (a) [Unless
previously canceled pursuant to Section 2.04,] all Warrants with respect to
which
(i) there has been no proper delivery of Warrants to the Warrant
Account, in the case of Book-Entry Warrants, or of Definitive Warrant
Certificates to the Warrant Agent Office, in the case of Certificated
Warrants[, or no delivery of the Exercise Price as provided in Section
2.01(b)] or no valid Exercise Notice has been received by the Warrant Agent
at or prior to [3:00 P.M.], New York City time, on the earlier to occur of
(A) the Expiration Date for such Warrants and (B) the last New York
Business Day prior to the effective date on which the Warrants are delisted
from, or permanently suspended from trading on, the __________ Stock
Exchange without being accepted for listing on or prior to such New York
Business Day on another United States national securities exchange (such
New York Business Day, the "Delisting Date"),
(ii) the Exercise Date has been postponed pursuant to Section 2.02(f)
to a date on or after the earlier of the Expiration Date or the Delisting
Date,
[or (iii) [list other events causing automatic exercise of Warrants,
if applicable]]
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will be automatically exercised on such Expiration Date or Delisting Date [or
on the date on which (specify other events leading to automatic exercise)] (any
such date, a "Deemed Exercise Date") without any requirement of notice of
exercise to the Warrant Agent. On the Deemed Exercise Date, all the Warrants
will be canceled and will represent only a right to receive the Cash Settlement
Value upon satisfaction of the requirements set forth in Section 2.03(b). The
Valuation Date for such Warrants shall be the first Currency Country Business
Day next succeeding such Deemed Exercise Date.
(b) On the Valuation Date for the Warrants to be automatically
exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not
a New York Business Day, on the next succeeding New York Business Day), the
Warrant Agent shall (i) determine the Cash Settlement Value of such Warrants;
(ii) by [5:00 P.M.], New York City time, on such Valuation Date (or, if such
Valuation Date is not a New York Business Day, on the next succeeding New York
Business Day) notify the Corporation (and such other parties (not to exceed two)
as the Corporation shall designate in writing) of the Cash Settlement Value of
such Warrants; and (iii) advise the Corporation of such other matters relating
to the automatically exercised Warrants as the Corporation shall reasonably
request.
(c) At or before [3:00 P.M.], New York City time, on the [third] New
York Business Day following the Valuation Date for any Warrants automatically
exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not
a New York Business Day, on the [fourth] New York Business Day after such
Valuation Date) (such date, with respect to such Warrants, the "Settlement
Date"), the Corporation shall make available to the Warrant Agent funds in an
amount equal to, and for the payment of, [(y)] the aggregate Cash Settlement
Value of such automatically exercised Warrants [minus (y) the aggregate Exercise
Price with respect to such Warrants, provided that if such amount is less than
zero, no such funds shall be made available]. On the New York Business Day on
which the Corporation has made adequate funds available to the Warrant Agent at
or prior to [3:00 P.M.], New York City time, the Warrant Agent shall make
payment available (i) if the automatically exercised Warrants are Book-Entry
Warrants, in the form of a wire transfer to the appropriate Depository
Participant after [3:00 P.M.], New York City time, but prior to the close of
business, on such day, such payment to be in the amount of [(x)] the aggregate
Cash Settlement Value of the Warrants held at the time of automatic exercise by
such Depository Participant [minus (y) the aggregate Exercise Price with
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respect to such Warrants, provided that if such amount is less than zero, then
no such payment shall be made], and (ii) if the automatically exercised Warrants
are Certificated Warrants, in the form of one or more cashier's checks or
official bank checks to each appropriate Holder after [3:00 P.M.], New York City
time, but prior to the close of business, on such day, such payment to be in the
amount of [(x)] the Cash Settlement Value of the Warrants registered in the name
of such Holder on the date of automatic exercise [minus (y) the aggregate
Exercise Price with respect to such Warrants, provided that if such amount is
less than zero, then no such payment shall be made]; provided, however, that the
Warrant Agent shall withhold any such payment in respect of any Warrant until
the conditions set forth in Section 2.03(d) have been satisfied with respect to
such Warrant. In the case of payments by the Warrant Agent to a Depository
Participant, the Warrant Agent shall have no responsibility for the crediting by
such Depository Participant of the Cash Settlement Value of such Warrants to the
appropriate Owners.
(d) The Warrant Agent shall withhold payment of the Cash Settlement
Value with respect to any automatically exercised Warrant until:
(i) if such Warrant is a Book-Entry Warrant, [(A)] such Warrant is
delivered on the records of the Depository free to the Warrant Account [and
(B) the Warrant Agent receives at the Warrant Agent Office a written
certification substantially in the form of Exhibit E-1 hereto, dated no
earlier than the Deemed Exercise Date, executed by a Depository Participant
acting on behalf of the Owner of such Warrant, to the effect that such
Owner is not a Currency Country Resident]; and
(ii) if such Warrant is a Certificated Warrant, [(A)] the Definitive
Warrant Certificate representing such Warrant is surrendered to the Warrant
Agent at the Warrant Agent Office, [and (B) the Warrant Agent receives at
the Warrant Agent Office a certification in the form of Exhibit E-2 hereto,
dated no earlier than the Deemed Expiration Date, to the effect that the
Holder of such Definitive Warrant Certificate is not a Currency Country
Resident].
(e) When payment has been made in respect of all Warrants represented
by a Warrant Certificate, the Warrant Agent shall, promptly upon receipt of such
Warrant Certificate, cancel such Warrant Certificate and deliver it to the
Corporation.
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[Section 2.04. Cancellation of Warrants. (a) [insert conditions and
effects of cancellation, if applicable].]
(b) [The "Cancellation Amount" of a Warrant shall mean [Insert amount
or method for determining amount].]
[Section 2.05. Discontinuance or Modification of Base Currency. [(If
Base Currency is a unit of two or more currencies, specify method for
calculating Cash Settlement Value and Cancellation Amount in the event of a
discontinuation or modification in such Base Currency)].]
Section 2.06. Designation of Agent for Receipt of Notice. The
Corporation may from time to time designate in writing to the Warrant Agent a
single designee for receipt of all notices required to be given by the Warrant
Agent to the Corporation pursuant to this Article II and all such notices
thereafter shall be given in the manner herein provided by the Warrant Agent to
such designee and each such notice shall be as effective as if given directly to
the Corporation.
[Section 2.07. Extraordinary Events. [(Specify conditions and
effects of extraordinary events, if applicable)].]
[Section 2.08. Temporary Suspension of the Right to Exercise the
Warrants. [(Specify conditions and method of temporary suspension of right to
exercise, if applicable)].]
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders. (a) The Corporation, the
Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and
treat the Person in whose name each Global Warrant Certificate shall be
registered in the records of the Warrant Agent as the absolute Holder of all
right, title and interest in such Global Warrant Certificate (notwithstanding
any notation of ownership or other writing thereon) for all purposes hereunder
and as the Person entitled to exercise the rights represented by the Warrants
evidenced thereby, whether or not such Warrants shall be exercised or deemed to
be exercised, and neither the Corporation nor the Warrant Agent, nor any agent
of the Corporation or the Warrant Agent
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shall be affected by any notice to the contrary, except that the Warrant Agent
and the Corporation shall be entitled to rely on and act pursuant to
instructions of Depository Participants as contemplated by Article II of this
Agreement.
(b) Prior to due presentment of a Definitive Warrant Certificate for
registration of transfer, the Corporation, the Warrant Agent and any agent of
the Corporation or the Warrant Agent may treat the Person in whose name such
Definitive Warrant Certificate is registered as the absolute Holder of all
right, title and interest in such Definitive Warrant Certificate
(notwithstanding any notation of ownership or other writing thereon) for all
purposes hereunder and as the Person entitled to exercise the rights represented
by the Warrants evidenced thereby, whether or not such Warrants shall be
exercised or deemed to be exercised, and neither the Corporation, the Warrant
Agent nor any agent of the Corporation or the Warrant Agent shall be affected by
notice to the contrary.
Section 3.02. Holder or Owner of Warrant May Enforce Rights.
Notwithstanding any other provision of this Agreement, any Owner, in the case of
Book-Entry Warrants, and any Holder, in the case of Certificated Warrants,
without the consent of the Warrant Agent or the Owner or Holder of any other
Warrant, may, in and for such Owner's or Holder's own behalf, and for such
Owner's or Holder's own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Corporation suitable to enforce, or
otherwise in respect of, such Owner's or Holder's right to exercise, and to
receive payment for, such Owner's or Holder's Warrants as provided in such
Warrants and in this Agreement.
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent. The Corporation hereby appoints [name
of Warrant Agent] as the Warrant Agent of the Corporation in respect of the
Warrants upon the terms and subject to the conditions set forth herein and in
the Warrants, and [name of Warrant Agent] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred upon
it herein and in the Warrants and such further powers and authority acceptable
to it to act on behalf of the Corporation as the Corporation may hereafter grant
to or confer upon it. All of the terms and provisions with respect to such
powers and authority
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contained in the Warrants are subject to and governed by the terms and
provisions hereof.
Section 4.02. Certain Duties of the Warrant Agent. (a) Except
during the continuation of a default in the performance by the Corporation of
its obligations in respect of the Warrants, the Warrant Agent undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Warrant Agent.
(b) No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 4.03. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations set forth herein upon and subject to the terms and
conditions hereof and of the Warrants, including the following, to all of which
the Corporation agrees and to all of which the rights hereunder of the Owners
and Holders from time to time of the Warrants shall be subject:
(a) The Corporation agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Corporation for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for its
reasonable out-of-pocket expenses, disbursements and advances (including
reasonable attorneys' fees and expenses and reasonable compensation,
expenses and disbursements of its agents) incurred by the Warrant Agent
without negligence, bad faith or breach of this Agreement on its part in
connection with the services rendered by it hereunder. The Corporation
also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense (including reasonable attorneys'
fees and expenses) incurred without negligence, bad faith or breach of this
Agreement on the part of the Warrant Agent, arising out of or in connection
with its acting as such Warrant Agent hereunder or with respect to the
Warrants, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligations of
the
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Corporation under this subsection (a) shall survive the exercise of the
Warrants and the resignation or removal of the Warrant Agent.
(b) The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted or thing suffered by it in
reliance upon any Warrant, resolution, opinion, report, request, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been presented
or signed by the proper parties, provided that any request or direction of
the Corporation shall be sufficiently evidenced by a Corporation Order
delivered to the Warrant Agent, and any resolution of the Board of
Directors shall be sufficiently evidenced by a copy of the resolution
certified by the Secretary or an Assistant Secretary to have been duly
adopted by the Board of Directors of the Corporation, or by a committee of
such Board of Directors or an officer of the Corporation appointed by the
Board of Directors of the Corporation for such purpose, and to be in full
force and effect on the date of such certification and delivered to the
Warrant Agent (any such resolution, a "Board Resolution").
(c) The Warrant Agent may consult with counsel satisfactory to it,
which may include counsel to the Corporation, and the written opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such written opinion.
(d) The Warrant Agent shall not be bound to make any investigation
into the facts or matters stated in any Corporation Order or Board
Resolution, but the Warrant Agent, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(e) The Warrant Agent, and any of its officers, directors and
employees, in its individual or any other capacity, may become the Owner or
Holder of, or acquire any interest in, any Warrants or other obligations of
the Corporation, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Corporation and may act on, or as depositary, trustee
or agent for, any committee
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or body of Owners or Holders of Warrants or other obligations of the
Corporation as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest
on any monies at any time received by it pursuant to any of the provisions
of this Agreement or of the Warrants except as otherwise agreed with the
Corporation, nor shall it be obligated to segregate such monies from other
monies held by it, except as required by law.
(g) The Warrant Agent shall not be under any liability with respect
to the validity or sufficiency of this Agreement or the execution and
delivery hereof (except the due execution and delivery hereof by the
Warrant Agent) or with respect to the validity or execution of the Warrants
or the Warrant Certificates (except the countersignature thereof).
(h) The recitals contained herein and in the Warrants (except as to
the Warrant Agent's countersignature thereon) shall be taken as the
statements of the Corporation, and the Warrant Agent assumes no
responsibility for the correctness thereof.
(i) The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Corporation of any of the Warrant
Certificates countersigned by the Warrant Agent and delivered by it to the
Corporation pursuant to this Agreement or for the application by the
Corporation of any proceeds.
(j) The Warrant Agent shall have no duty or responsibility in case of
any default by the Corporation in the performance of its covenants or
agreements contained herein or in the Warrants or in the case of the
receipt of any written demand from an Owner or Holder of a Warrant with
respect to such default, including, without limitation, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 8.03, to make any demand upon
the Corporation.
(k) In acting under this Agreement and in connection with the
Warrants, the Warrant Agent is acting solely as the agent of the
Corporation and does not assume any obligation or relationship of agency or
trust for or with any of the Owners or Holders of the Warrants.
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Section 4.04. Compliance With Applicable Laws. The Warrant Agent
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Agreement and in
connection with the Warrants, including (but not limited to) the provisions of
United States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
Section 4.05. Corporate Warrant Agent Required; Eligibility. The
Corporation agrees, for the benefit of the Owners or Holders from time to time
of the Warrants, that there shall at all times be a Warrant Agent hereunder
until all of the Warrants have been exercised or are no longer exercisable,
which shall be a banking institution organized under the laws of the United
States of America or one of the states thereof and having an office or an
agent's office south of Chambers Street in the Borough of Manhattan, The City of
New York.
Section 4.06. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Warrant Agent and no appointment of a successor
Warrant Agent pursuant to this Section 4.06 shall become effective until the
acceptance of appointment by the successor Warrant Agent under Section 4.07.
(b) The Warrant Agent may resign at any time by giving written notice
of such resignation to the Corporation specifying such resignation and the date
on which it desires such resignation to become effective, provided that, without
the consent of the Corporation, such date shall not be less than 90 days after
the date on which such notice is given. If an instrument of acceptance by a
successor Warrant Agent shall not have been delivered to the Warrant Agent
within 90 days after the giving of such notice of resignation, the resigning
Warrant Agent may petition any court of competent jurisdiction for the
appointment of a successor Warrant Agent with respect to the Warrants.
(c) The Corporation may remove the Warrant Agent at any time by
giving written notice thereof to the Warrant Agent specifying such removal and
the date on which the Corporation desires such removal to become effective.
(d) If at any time:
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(i) the Warrant Agent shall cease to be eligible to act as such under
Section 4.05 and shall fail to resign after the Corporation shall have
delivered a written request therefor, or
(ii) the Warrant Agent shall become incapable of acting as such, or
shall be adjudged a bankrupt or insolvent, or shall file a voluntary
petition in bankruptcy or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or custodian of all
or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or an order of any court shall be entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy or
similar law, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, or
(iii) the Corporation shall elect to remove the Warrant Agent,
provided that no default shall then exist with respect to the Warrants,
then in any such case, the Corporation by a Board Resolution may remove the
Warrant Agent with respect to all the Warrants.
(e) If the Warrant Agent shall resign or be removed, or if a vacancy
shall occur in the office of the Warrant Agent for any other reason, the
Corporation, by a Board Resolution, shall promptly appoint a successor Warrant
Agent with respect to the Warrants, it being understood that at any time there
shall be only one Warrant Agent with respect to the Warrants.
(f) The Corporation shall give notice to the Owners or Holders of the
Warrants of each resignation and each removal of the Warrant Agent and each
appointment of a successor Warrant Agent with respect to the Warrants in
accordance with Section 8.05. Each such notice shall include the name of the
successor Warrant Agent and the address of its Warrant Agent Office.
Section 4.07. Acceptance of Appointment by Successor. (a) If a
successor Warrant Agent is appointed hereunder, such successor Warrant Agent so
appointed shall execute, acknowledge and deliver to the Corporation and to the
retiring Warrant Agent an instrument accepting such
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appointment, and thereupon the resignation or removal of the retiring Warrant
Agent shall become effective and such successor Warrant Agent, without any
further act, deed or conveyance, shall become vested with all the rights, powers
and duties of the retiring Warrant Agent; provided, however, that on the request
of the Corporation or the successor Warrant Agent, such retiring Warrant Agent
shall, upon payment of its charges and disbursements then unpaid, execute and
deliver an instrument transferring to such successor Warrant Agent all the
rights and powers of the retiring Warrant Agent and shall duly assign, transfer
and deliver to such successor Warrant Agent all property and money held by such
retiring Warrant Agent hereunder.
(b) Upon the request of any such successor Warrant Agent, the
Corporation shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Warrant Agent all such rights and
powers referred to in Section 4.07(a).
(c) No successor Warrant Agent shall accept its appointment, and no
such acceptance shall be effective, unless at the time of such acceptance such
successor Warrant Agent shall be qualified and eligible under this Article IV.
Section 4.08. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Warrant Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation succeeding to all or substantially all of the
business of the Warrant Agent, shall be the successor of the Warrant Agent
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided that such corporation shall be
otherwise qualified and eligible under this Article IV. If any Warrant
Certificates shall have been countersigned, but not delivered, by the Warrant
Agent then in office, any successor by merger, conversion or consolidation to
such countersigning Warrant Agent may adopt such countersignature and deliver
the Warrant Certificates so countersigned with the same effect as if such
successor Warrant Agent had itself countersigned such Warrant Certificates.
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ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the Corporation and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. (a) The
Corporation may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided
that, in any such case, (i) either the Corporation shall be the continuing
corporation, or the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a state thereof and
such successor corporation shall expressly assume, by Supplemental Agreement (as
defined in Section 6.01(a)) satisfactory to the Warrant Agent and executed and
delivered to the Warrant Agent by such corporation, the due and punctual
payment of the Cash Settlement Value [or Cancellation Amount, as the case may
be,] with respect to all unexercised Warrants, according to their tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of this Agreement to be performed by the Corporation, and (ii) the
Corporation or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, lease or
conveyance, be in default in the performance of any such covenant or condition.
In case of any such consolidation, merger, sale, lease or conveyance and upon
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Corporation, with the same effect as if it
had been named herein as such, and the predecessor Corporation, except in the
event of a lease, shall be relieved of any further obligation hereunder or under
the Warrants. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Corporation, new Global
Warrant Certificates or Definitive Warrant Certificates, as the case may be,
representing Warrants not theretofore exercised, in exchange and substitution
for the Global Warrant Certificates and Definitive Warrant Certificates
theretofore issued; and upon the order of such successor corporation, instead of
the Corporation, and subject to all the terms, conditions and limitations in
this Agreement prescribed, the Warrant Agent shall countersign and shall deliver
the new Global Warrant Certificates or Definitive Warrant Certificates, as the
case may be, that such successor corporation shall have caused to be signed and
delivered to the Warrant Agent for countersignature. Such Global Warrant
Certificates or Definitive Warrant Certificates, as the case may be, shall in
all respects have
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the same legal rank and benefit under this Agreement as the Warrant Certificates
theretofore issued in accordance with the terms of this Agreement as though such
new Warrant Certificates had been issued at the date of issue of the Warrant
Certificates for which they are exchanged. In case of any such consolidation,
merger, sale, lease or conveyance, such changes in phraseology and form (but not
in substance) may be made in the new Warrant Certificates as may be appropriate.
(b) The Warrant Agent may receive a written opinion of counsel (who
may be an employee of the Corporation or other counsel acceptable to the Warrant
Agent) (an "Opinion of Counsel") as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption,
complies with the provisions of this Article V.
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Currency Warrant Agreement. (a) This
Agreement and the Warrants may be amended by the Corporation, when authorized by
a Board Resolution, and the Warrant Agent (which amendment shall take the form
of a supplemental currency warrant agreement) (each, a "Supplemental
Agreement")), without the consent of the Owners or Holders of the Warrants, for
the purpose of:
(i) curing any ambiguity or of curing, correcting or supplementing
any defective or inconsistent provision contained herein or therein, or of
making any other provisions with respect to matters or questions arising
under this Agreement that shall not be inconsistent with the provisions of
this Agreement or the Warrants; or
(ii) evidencing the succession of another corporation to the
Corporation and the assumption by any such successor of the covenants of
the Corporation contained herein and in the Warrants in accordance with
Article V; or
(iii) appointing a successor Depository in accordance with Section
1.01(e); or
(iv) evidencing and providing for the acceptance of appointment
hereunder by a successor Warrant Agent in accordance with Section 4.07; or
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(v) adding to the covenants of the Corporation for the benefit of the
Owners or Holders of the Warrants or surrendering any right or power herein
conferred upon the Corporation; or
(vi) issuing Warrants in the form of Definitive Warrant Certificates
in accordance with Section 1.01(c); or
(vii) amending this Agreement and the Warrants in any manner that the
Corporation may deem to be necessary or desirable and that will not
materially and adversely affect the interests of the Owners or Holders of
the Warrants.
(b) The Corporation and the Warrant Agent may amend this Agreement
and the Warrants (which amendment shall take the form of a Supplemental
Agreement), with the consent of the Owners or Holders, as the case may be, of
not fewer than 66-2/3% in number of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Owners or Holders of the Warrants under this Agreement;
provided, however, that, without the consent of each Owner or Holder affected
thereby, no such amendment may be made that changes the determination of the
Cash Settlement Value [or Cancellation Amount, as the case may be,] of the
Warrants (or any aspects of such determination) so as to reduce the amount
receivable upon exercise or deemed exercise of the Warrants, shortens the period
of time during which the Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the Owners or Holders, as the case may
be, or reduces the number of unexercised Warrants the consent of the Owners or
Holders of which is required for amendment of this Agreement or the Warrants.
The Corporation and the Warrant Agent shall be entitled to rely upon
certification in form satisfactory to each of them that any requisite consent
has been obtained from the Owners of Warrants represented by a Global Warrant
Certificate. Such certification may be provided by Depository Participants
acting on behalf of such Owners of Warrants, provided that any such
certification is accompanied by a certification from the Depository as to the
Global Warrant Certificate holdings of such Depository Participants.
Section 6.02. Form of Approval of Supplemental Agreements by Owners
or Holders. It shall not be necessary for the Owners or Holders of the Warrants
to approve the particular form of any proposed Supplemental Agreement, but
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it shall be sufficient if the Owners or Holders, as the case may be, shall
approve the substance of the Supplemental Agreement.
Section 6.03. Effect of Supplemental Agreements. Upon the execution
of any Supplemental Agreement under this Article, this Agreement shall be
modified in accordance therewith, such Supplemental Agreement shall form a part
of this Agreement for all purposes, and, subject to the proviso to the first
sentence of Section 6.01(b), every Owner or Holder of Warrants theretofore or
thereafter countersigned and delivered hereunder shall be bound thereby.
Section 6.04. Reference in Warrants to Supplemental Agreements.
Warrants countersigned and delivered after the execution of any Supplemental
Agreement pursuant to this Article may, and shall if required by the Warrant
Agent, bear a notation in form approved by the Warrant Agent as to any matter
provided for in such Supplemental Agreement. If the Corporation shall so
determine, new Warrants so modified as to conform, in the opinion of the Warrant
Agent and the Corporation, to any such Supplemental Agreement may be prepared
and executed by the Corporation and countersigned and delivered by the Warrant
Agent in exchange for unexercised Warrants.
ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Listing of Warrants on National Securities Exchange.
(a) The Corporation covenants, for the benefit of the Owners or Holders of the
Warrants, as the case may be, that (i) it will seek to obtain the listing of the
Warrants on [name of national securities exchange] and (ii) until the Expiration
Date, it will not seek the delisting of the Warrants from, or permanent
suspension of their trading on, [name of national securities exchange] unless
prior to such delisting or suspension the Warrants shall have been listed, and
shall be trading, on another national securities exchange.
(b) The Corporation shall advise the Warrant Agent of the date of any
expected delisting or permanent suspension of trading of the Warrants as soon as
is practicable and will immediately inform the Warrant Agent after the
Corporation has received notice that such delisting or suspension has occurred,
but in no event shall notice of such delisting or suspension be given to the
Warrant Agent later than [3:00 P.M.], New York City time, on
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the fifth New York Business Day preceding the date that such delisting or
suspension occurs.
(c) The Corporation shall notify the Owners or Holders of the
Warrants in accordance with Section 8.05 as promptly as is practicable of any
expected delisting or suspension of trading of the Warrants.
Section 7.02. Governmental Approvals. The Corporation shall from
time to time take all reasonable action necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and the [name of national securities exchange], and shall make all
filings under United States federal and state laws, that may be or become
requisite in connection with the issuance, sale, trading, transfer, delivery or
exercise of the Warrants, each Global Warrant Certificate and each Definitive
Warrant Certificate.
Section 7.03. Payment of Cash Settlement Value [or Cancellation
Amount]. The Corporation agrees, for the benefit of the Owners or Holders of
the Warrants, that it will duly and punctually pay the Cash Settlement Value [or
Cancellation Amount, as the case may be,] on each Warrant in accordance with the
terms of the Warrants and this Agreement, and that the right of each such Owner
or Holder, as the case may be, to receive payment of the Cash Settlement Amount
[or Cancellation Amount, as the case may be,] on such Warrant when such amount
is due and payable shall be absolute and unconditional.
Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys. (a)
The Corporation shall maintain an office and agency at which the Warrants may be
presented or surrendered for exercise or registration of transfer or exchange or
cancellation and where notices and demands to or upon the Corporation in respect
of the Warrants and this Agreement may be served, which office and agency shall
be the same as the location of the Warrant Agent Office, and the Corporation
hereby appoints the Warrant Agent as its agent to receive all such
presentations, surrenders, notices and demands.
(b) The Corporation shall, on or prior to each due date of the Cash
Settlement Value [or Cancellation Amount, as the case may be,] on any Warrant,
deposit with the Warrant Agent a sum sufficient to pay the Cash Settlement Value
[or Cancellation Amount, as the case may be,] so becoming due, such sum to be
held for the benefit of the Persons entitled to such Cash Settlement Value [or
Cancellation Amount, as the case may be].
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(c) Any money deposited with the Warrant Agent for the payment of the
Cash Settlement Value [or Cancellation Amount, as the case may be,] on any
Warrant and remaining unclaimed for three years after such Cash Settlement Value
[or Cancellation Amount, as the case may be,] has become due and payable, shall
be paid to the Corporation, at the request of the Corporation, and the Person
entitled to such money shall thereafter, as an unsecured general creditor, look
only to the Corporation for payment thereof, and all liability of the Warrant
Agent with respect to such money shall thereupon cease; provided, however, that
the Warrant Agent, before being required to make any such repayment, may at the
expense of the Corporation, cause notice to be given in accordance with Section
8.05 to the Person entitled to such money that such money remains unclaimed and
that, after a date specified therein, which shall be not less than 30 days from
the date of such notice, any unclaimed balance of such money then remaining will
be repaid to the Corporation.
Section 7.05. Corporate Existence. Subject to Article V, the
Corporation shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Corporation shall not be
required to preserve any right or franchise if its Board of Directors or a
committee thereof shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Corporation and that the loss
thereof is not disadvantageous in any material respect to the Owners or Holders
of the Warrants, as the case may be.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants. The Corporation may,
from time to time, issue additional Warrants under this Agreement. All Warrants
issued hereunder, from and after the date they are issued, shall be identical.
Section 8.02. Payment of Taxes. The Corporation shall pay all
documentary stamp taxes attributable to the initial issuance of Warrants;
provided, however, that the Corporation shall not be required to pay any tax or
other governmental charge that may be payable in respect of any transfer
involving any beneficial or record interest in or ownership interest of any
Warrants.
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Section 8.03. Notices and Demands to the Corporation and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Corporation by any Owner or Holder pursuant to the provisions of the Warrants,
the Warrant Agent shall promptly forward such notice or demand to the
Corporation.
Section 8.04. Addresses for Notices. Any communications from the
Corporation to the Warrant Agent with respect to this Agreement shall be
addressed to [name of Warrant Agent], [address] (facsimile: (___) ___-____)
(telephone: (___) ___-____), Attention: [Corporate Trust Department]; any
communications from the Warrant Agent to the Corporation with respect to this
Agreement shall be addressed to Bankers Trust New York Corporation, 280 Park
Avenue, New York, New York 10017 (facsimile: (212) ___-____) (telephone:
(212) ___-_____), Attention: [_______________]; and any communications from the
Warrant Agent to the Spot Rate Reference Bank with respect to this Agreement
shall be addressed to [name of Spot Rate Reference Bank], [address] (facsimile:
(___) ___-____) (telephone: (___) ___-____), Attention: [Corporate Foreign
Exchange] (or, in any such case, at such other address as shall be specified in
writing to each of the others by the Warrant Agent, the Corporation or the Spot
Rate Reference Bank, as the case may be).
Section 8.05. Notices to Owners and Holders. The Corporation or the
Warrant Agent shall give any notice to be given to the Owners of Book-Entry
Warrants by providing the Depository with a form of notice to be distributed by
the Depository to Depository Participants in accordance with the customs and
practices of the Depository. The Corporation or the Warrant Agent shall give
notice to the Holders of Certificated Warrants by mailing written notice by
first class mail, postage prepaid, to such Holders as their names and addresses
appear in the Warrant Register.
SECTION 8.06. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT ISSUED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Section 8.07. Benefits of Currency Warrant Agreement. Nothing in
this Agreement or in the Warrants expressed or implied and nothing that may be
inferred from any of the provisions hereof or thereof is intended, or shall be
construed, to confer upon, or give to, any Person other than the Corporation,
the Warrant Agent and their respective successors and assigns, and the Owners or
Holders of the Warrants, as the case may be, any right, remedy or
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claim under or by reason of this Agreement or the Warrants or of any covenant,
condition, stipulation, promise or agreement hereof or thereof, and all
covenants, conditions, stipulations, promises and agreements contained in this
Agreement or in the Warrants shall be for the sole and exclusive benefit of the
Corporation and the Warrant Agent and their respective successors and assigns
and of the Owners or Holders of the Warrants, as the case may be.
Section 8.08. Successors and Assigns. All covenants and agreements
in this Agreement by the Corporation shall bind its successors and assigns,
whether so expressed or not.
Section 8.09. Currency Warrant Agreement and Warrants Solely
Corporate Obligations. No recourse for the payment of the Cash Settlement Value
[or Cancellation Amount, as the case may be,] of any Warrant or for any claim
based on any Warrant or this Agreement shall be had against any director or
officer or stockholder, past, present or future, of the Corporation. Any such
claim against any such Person is expressly waived as a condition of, and as
consideration for, the execution and delivery of this Agreement and the issue of
the Warrants.
Section 8.10. Severability. If any provision in this Agreement or in
the Warrants shall be invalid, illegal, or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions, or of
such provisions in any other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 8.11. Headings. The descriptive headings of the several
Articles and Sections and the Table of Contents of this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
Section 8.12. Counterparts. This Agreement may be executed by the
parties hereto in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 8.13. Inspection of Currency Warrant Agreement. A copy of
this Agreement shall be available at all reasonable times at the Warrant Agent
Office for inspection by the Owners or Holders of the Warrants, as the case may
be, the Depository Participants and the Indirect Participants. In the case of
Certificated Warrants, the Warrant Agent may require the Holder of such Warrant
to
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submit such Holder's Warrant Certificate for inspection by the Warrant Agent.
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IN WITNESS WHEREOF, this Currency Warrant Agreement has been duly
executed by the parties hereto as of the day and year first above written.
BANKERS TRUST NEW YORK CORPORATION
By:___________________________
Name:
Title:
[SEAL]
Attest:
___________________________
[Assistant] Secretary
[NAME OF WARRANT AGENT], as Warrant Agent
By:___________________________
Name:
Title:
[SEAL]
Attest:
_____________________________
[Assistant Secretary]
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EXHIBIT A
[WARRANTS EVIDENCED BY THIS WARRANT CERTIFICATE CANNOT
BE EXERCISED PRIOR TO ________ __, 199__.]
[NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE WARRANT AGENT HAS RECEIVED
THE CERTIFICATION DESCRIBED IN THE CURRENCY
WARRANT AGREEMENT]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER [3:00 P.M.], NEW YORK CITY TIME,
ON ________ __, 199__
No. _________ CUSIP No. ____________
GLOBAL WARRANT CERTIFICATE
representing
________ [Name of Currency] Currency [Put/Call] Warrants
Expiring ________ __, 199__
BANKERS TRUST NEW YORK CORPORATION
This certifies that [______________] or registered assigns is the
registered holder of [insert number initially issued] [insert name of Currency]
Currency [Put/Call] Warrants (the "Warrants"), or such lesser amount as is
indicated in the records of [name of Warrant Agent], as Warrant Agent. Each
Warrant entitles the [beneficial owner thereof (an "Owner")] [registered holder
thereof (a "Holder")], subject to the provisions contained herein and in the
Currency Warrant Agreement referred to below, to receive from Bankers Trust New
York Corporation (the "Corporation") the cash settlement value (the "Cash
Settlement Value") in [U.S. dollars (specify other currency if applicable)] of
the right to [purchase] [sell] [(specify base amount)] of [(specify Base
Currency)] (the "Base Currency") at a price of [(specify Strike Price, including
currency)], as further described below. [No exercise price shall be payable by
any Holder or Owner in connection with the exercise of any Warrant.] [The
exercise price for each Warrant shall be $_____ and shall be payable in [U.S.
dollars (specify other currency if applicable)] (the "Exercise Price").] In no
event shall any [Owner] [Holder] be entitled to any interest on the Cash
Settlement Value [or Cancellation Amount] (unless the Corporation shall default
in the payment of such Cash Settlement Value).
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Subject to the terms of the Currency Warrant Agreement, each Warrant
may be exercised or deemed to be exercised in whole but not in part on any New
York Business Day (as defined below) from [the date of issuance (specify other
date if applicable)] until [3:00 P.M.], New York City time, on the earlie[st] of
(i) [_________ (specify date upon which right to exercise Warrants expires)] or,
if such date is not a New York Business Day, on the next succeeding New York
Business Day (the "Expiration Date"), [or] (ii) the date of automatic exercise
[or (iii) the date of cancellation], as further described below and as provided
in the Currency Warrant Agreement. Except in the case of automatic exercise or
any exercise on the Expiration Date, not fewer than [(specify minimum exercise
amount)] [nor more than [(specify maximum exercise amount)] Warrants may be
exercised by or on behalf of any one [Owner] [Holder] at any one time.
References herein to "U.S. dollars", "U.S.$" or "$" are references to the
currency of the United States of America. References to "[(insert name of Base
Currency)]" or "[__________]" are references to the currency of [(insert name of
Currency country)]. As used herein, the term "New York Business Day" means any
day other than a Saturday or Sunday or a day on which the New York Stock
Exchange or the American Stock Exchange [or (list any other relevant securities
exchanges)] is not open for securities trading or banking institutions generally
in The City of New York are authorized or required by law or executive order to
close; "Currency Country Business Day" means any day other than (i) a Saturday
or a Sunday or a day on which banking institutions generally in [(specify name
of Currency country)] are authorized or required by law or executive order to
close or (ii) a day on which the [names of relevant stock exchanges] are not
open for business[; and "Currency Country Resident" means a resident of, or any
corporation or other Person organized under the laws of [(specify name of
Currency country)], its territories, its possessions or other areas subject to
its jurisdiction].
This [Global] [Definitive] Warrant Certificate is issued under and in
accordance with the Currency Warrant Agreement, dated as of ________ __, 199__
(the "Currency Warrant Agreement"), between the Corporation and the Warrant
Agent, and is subject to the terms and provisions contained in the Currency
Warrant Agreement, to all of which terms and provisions all [Owners] [Holders]
of the Warrants represented by this [Global] [Definitive] Warrant Certificate
[and the Holder of this Global Warrant Certificate] consent by acceptance hereof
[by the Depository (as defined below)]. Copies of the Currency Warrant
Agreement are on file at the Warrant Agent Office at ______________, New York,
New York, _____, Attention:
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Corporate Trust Department, or at such other office as may be specified in a
notice given to the [Owners] [Holders] of the Warrants. [Except as provided in
the Currency Warrant Agreement, Owners will not be entitled to receive
definitive certificates evidencing their Warrants. Warrant holdings will be
held through a depository selected by the Corporation, which initially is [The
Depository Trust Company], or its agent (the "Depository", which term, as used
herein, includes any successor depository selected by the Corporation) as
further provided in the Currency Warrant Agreement.]
Capitalized terms included herein but not defined herein have the
meanings assigned to them in the Currency Warrant Agreement.
The Cash Settlement Value of any Exercised Warrants (whether exercised
automatically or by Exercise Notice) will be the amount, stated in U.S. dollars,
computed by subtracting [from 50] [50 from] an amount equal to 50 times a
fraction, the numerator of which is the Spot Rate (as defined below) on the
Exercise Date and the denominator of which is the Strike Price (as defined
below), provided that if such amount is less than zero, the Cash Settlement
Value shall be zero. [The Cancellation Amount of any Exercised Warrants shall
mean [Insert method for determining amount].] The "Strike Price" of a Warrant
shall mean [Insert amount or method for determining amount]. The "Spot Rate" on
any date will be the offered spot rate of __________ [U.S. dollars (or specify
other Reference Currency)] for ____________ [(specify Base Currency)] for
__________ as quoted by __________ at 10:00 A.M., New York City time, on such
date or, if such bank is not quoting such rate at such time, the rate quoted by
such other leading bank in the foreign exchange markets as may be selected by
the Corporation in good faith and notified to the Warrant Agent. The Spot Rate
will be calculated to __________ decimal places.
Except in the case of automatic exercise [or cancellation] as further
provided below and in the Currency Warrant Agreement, and subject to any Maximum
Exercisable Number of Warrants, the "Valuation Date" for any Warrant shall be
the first Currency Country Business Day next succeeding the "Exercise Date",
which shall be the New York Business Day on which the Warrant Agent has received
(i) delivery of [such Warrant on the records of the Depository free to the
Warrant Account] [the Definitive Warrant Certificate representing such Warrant
at the Warrant Agent Office][, (ii) the Exercise Price] and ([iii]) an Exercise
Notice for such Warrant in good order in the form
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of [Exhibit B-1] [Exhibit B-2] to the Currency Warrant Agreement, [which shall
include certification that the [exercising Owner] [Holder] is not a Currency
Country Resident,] at or prior to [3:00 P.M.], New York City time; provided that
if the Warrant Agent receives such Warrant[, the Exercise Price] or the Exercise
Notice after [3:00 P.M.] on such day, the "Exercise Date" shall be the next
succeeding New York Business Day and such Warrant[, Exercise Price] and Exercise
Notice shall be deemed to have been received on such next succeeding New York
Business Day. Any delivery of a Warrant or Exercise Notice received after [3:00
P.M.], New York City time, on the Expiration Date shall be void and of no effect
and shall be deemed not to have been delivered. [A [Depository Participant]
[Holder] may specify in its irrevocable Exercise Notice in relation to a Warrant
that such Exercise Notice is conditional (a "Conditional Exercise Notice"), and
in such case such Conditional Exercise Notice shall be void and of no effect and
shall be disregarded for all purposes of the Currency Warrant Agreement if
[Describe the terms upon which the Exercise Notice may be conditional, which may
be as follows: the Spot Rate on the day that, but for the provisions of this
sentence, would be the Valuation Date for such Warrant is more than
[_________________] [above] [below] the Spot Rate on the [Designated] Exercise
Date of such Warrants (or, if such date is not a Currency Country Business Day,
on the immediately preceding Currency Country Business Day) (the "Reference
Value").]
By [5:00 P.M.], New York City time, on the New York Business Day on
which such Exercise Notice is received (or deemed to have been received), the
Warrant Agent shall notify the Corporation (and such other parties (not to
exceed two) as the Corporation shall designate in writing) of the number of
Warrants in respect of which Exercise Notices, not rejected pursuant to the
Currency Warrant Agreement, were received (or deemed to have been received) at
or prior to [3:00 P.M.], New York City time, on such date, the number of such
Exercise Notices that were rejected by the Warrant Agent pursuant to the
Currency Warrant Agreement and the number of Warrants to which such rejected
Exercise Notices relate [and the number of such Exercise Notices that were
Conditional Exercise Notices (and the number of Warrants to which such
Conditional Exercise Notices relate)]. By [5:00 P.M.], New York City time, on
the Valuation Date for such Warrants (or if such Valuation Date is not a New
York Business Day, then the next succeeding New York Business Day), the Warrant
Agent shall (i) [(x) after obtaining the Reference Value and the Spot Rate for
such Valuation Date, determine whether any Conditional Exercise Notices have
become void pursuant to
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Section 2.02(b) of the Currency Warrant Agreement, and if so, promptly notify
the Corporation (and such other parties (not to exceed two) as the Corporation
shall designate in writing) and send a Rejection Notice in the form of Exhibit C
to the Currency Warrant Agreement to the appropriate [Depository Participant]
[Holder] and redeliver such Warrants to such [Depository Participant] [Holder]
as provided in the Currency Warrant Agreement and (y)] determine the aggregate
number of [Tendered] [Exercised] Warrants, (ii) [determine pursuant to Section
2.02(f) of the Currency Warrant Agreement the number of such Tendered Warrants
which shall be Exercised Warrants, (iii)] determine the Cash Settlement Value
(in the manner provided in Section 2.02(h) of the Currency Warrant Agreement) of
the Exercised Warrants, (iv) notify the Corporation (and such other parties (not
to exceed two) as the Corporation shall designate in writing) of the Cash
Settlement Value with respect to such Warrants, (v) send notice of confirmation
of exercise in substantially the form of Exhibit D to the Currency Warrant
Agreement to the appropriate [Depository Participant] [Holder] and (vi) notify
the Corporation (and such other parties (not to exceed two) as the Corporation
shall designate in writing) of such other matters relating to the Exercised
Warrants as the Corporation shall reasonably request.
If the Corporation has made adequate funds available to the Warrant
Agent in a timely manner as provided in the Currency Warrant Agreement, the
Warrant Agent will make payment in the form of a wire transfer to the
appropriate Depository Participant on the [second] New York Business Day
following the Valuation Date (or, if such Valuation Date is not a New York
Business Day, on the [third] New York Business Day after such Valuation Date)
(the "Settlement Date"), all as provided in the Currency Warrant Agreement, such
payment to be in the amount of the Cash Settlement Value in respect of Exercised
Warrants exercised by such Depository Participant. [The Warrant Agent shall
have no responsibility for the crediting by such Depository Participant of the
Cash Settlement Value of such Warrants to the appropriate Owners.]
[The Warrant Agent will cause its records to be marked to reflect the
reduction in the number of Warrants represented by this Global Warrant
Certificate by the number of Warrants for which payment has been made in
accordance with the Currency Warrant Agreement.] [If this Definitive Warrant
Certificate shall be surrendered to the Warrant Agent for exercise of fewer than
all the Warrants represented hereby, the Warrant Agent shall issue and deliver
to the Holder of the Warrants represented hereby by
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first class mail at the expense of the Corporation a Definitive Warrant
Certificate representing all Warrants remaining unexercised after such
exercise.]
All Warrants with respect to which (i) there has been no proper
delivery of Warrants to the Warrant Account and no valid Exercise Notice has
been received by the Warrant Agent at or prior to [3:00 P.M.], New York City
time, on the earlier to occur of (A) the Expiration Date for such Warrants and
(B) the last New York Business Day prior to the effective date on which the
Warrants are delisting from, or permanently suspended from trading on, the [name
of national securities exchange] without being accepted for listing on or prior
to such New York Business Day on another United States national securities
exchange (such New York Business Day, the "Delisting Date"), (ii) the Exercise
Date has been postponed pursuant to Section 2.02(f) of the Currency Warrant
Agreement to a date on or after the earlier of the Expiration Date and the
Delisting Date, [or (iii) list other events causing automatic exercise of
Warrants, if applicable] will be automatically exercised on such Expiration Date
or Delisting Date [or on the date on which (list other dates of automatic
exercise)] (any such date, a "Deemed Exercise Date") without any requirement of
notice of exercise to the Warrant Agent. The Valuation Date for such Warrants
shall be the first Currency Country Business Day following such Deemed Exercise
Date.
[(Insert provisions relating to discontinuation or modification of
currency unit)]
The Corporation, the Warrant Agent and any agent of the Corporation or
the Warrant Agent may deem and treat the registered Holder hereof as the
absolute Holder of all right, title and interest in the Warrants evidenced
hereby (notwithstanding any notation of ownership or other writing hereon) for
any purpose and as the Person entitled to exercise the rights represented by the
Warrants evidenced hereby, and neither the Corporation nor the Warrant Agent nor
any agent of the Corporation or the Warrant Agent shall be affected by any
notice to the contrary, except that the Corporation and the Warrant Agent shall
be entitled to rely on and act pursuant to instructions of Depository
Participants as contemplated herein and in the Currency Warrant Agreement.
Subject to the terms of the Currency Warrant Agreement, upon due
presentment for registration of transfer or exchange of this [Global]
[Definitive] Warrant Certificate at the Warrant Agent Office, the Corporation
shall execute and the Warrant Agent shall countersign and
A-6
<PAGE>
deliver in the name of the designated transferee a new [Global] [Definitive]
Warrant Certificate or [Global] [Definitive] Warrant Certificates of like tenor
and representing in the aggregate a like number of unexercised Warrants as
evidenced by this [Global] [Definitive] Warrant Certificate at the time of such
registration of transfer, which shall be issued to the designated transferee in
exchange for this [Global] [Definitive] Warrant Certificate, subject to the
limitations provided in the Currency Warrant Agreement, without charge.
This [Global] [Definitive] Warrant Certificate and the Currency
Warrant Agreement are subject to amendment as provided in the Currency Warrant
Agreement.
THIS [GLOBAL] [DEFINITIVE] WARRANT CERTIFICATE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This [Global] [Definitive] Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant Agent.
A-7
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
Dated as of ________ __, 199__
BANKERS TRUST NEW YORK CORPORATION
By:___________________________
Name:
Title:
[SEAL]
Attest:_______________________
Name:
Title:
Countersigned on the date
above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
A-8
<PAGE>
EXHIBIT B-1
Form of Exercise Notice
for Warrants Represented by a Global Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation [name of Currency]
Currency [Put/Call] Warrants Expiring ________ __, 199__ (the
"Warrants")
1. We refer to the Currency Warrant Agreement, dated as of ________
__, 199__ (the "Currency Warrant Agreement"), between Bankers Trust New York
Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent
(the "Warrant Agent"). On behalf of certain beneficial owners, each of whom is
exercising no fewer than [__________] Warrants covered by this Notice and whose
Warrants are held through the Depository in our name, we hereby irrevocably
exercise [_____________] Warrants (the "Tendered Warrants").
2. This Exercise Notice [is] [is not] a Conditional Exercise Notice.
[We hereby acknowledge that a Conditional Exercise Notice will be void and of no
effect (and shall be disregarded for all purposes under the Currency Warrant
Agreement) if the Spot Rate on the date that, but for the provisions of Section
2.02(b) of the Currency Warrant Agreement, would be the Valuation Date for the
Warrants is more than [__________] [above] [below] the Spot Rate on the
[Designated] Exercise Date (or, if the [Designated] Exercise Date is not a
Currency Country Business Day, on the immediately preceding Currency Country
Business Day).]
3. We have instructed the Depository to deliver the Exercised
Warrants free through the Depository to the Warrant Account [Account No.
_______________])[, and we have made payment of the Exercise Price as provided
in Section 2.01(b) of the Currency Warrant Agreement].
4. We hereby acknowledge that this Exercise Notice[, the Exercise
Price] and the Tendered Warrants must be received by you by [3:00 P.M.], New
York City time, on a New York Business Day in order for the Valuation Date of
the
<PAGE>
Tendered Warrants to be the Currency Country Business Day next succeeding such
New York Business Day, and that if this Exercise Notice[, the Exercise Price] or
the Tendered Warrants are received by you after [3:00 P.M.], New York City time,
but prior to the close of business on a New York Business Day, the Valuation
Date of the Tendered Warrants shall be the Currency Country Business Day next
succeeding the first New York Business Day following the day on which this
Exercise Notice[, the Exercise Price] and the Tendered Warrants are received.
[We further acknowledge that if this Conditional Exercise Notice[, the Exercise
Price] or the Tendered Warrants are received by you after [3:00] P.M., New York
City time, but prior to the close of business on a New York Business Day, that
for purposes of making the determinations required by such Conditional Exercise
Notice, the Warrants will be deemed to be exercised on the New York Business Day
next succeeding the day on which this Exercise Notice[, the Exercise Price] and
the Tendered Warrants are received.]
5. We hereby certify that we are a participant of [The Depository
Trust Company] (the "Depository") with the present right to use and receive its
services.
6. We hereby acknowledge that if you determine that this Exercise
Notice has not been duly completed, or is not in proper form, or you are unable
to verify that we are a participant of the Depository as provided above, this
Exercise Notice will be void and of no effect and will be deemed not to have
been delivered.
7. We hereby direct you to make payment to us of amounts payable to
the beneficial owners of the Tendered Warrants as a result of the exercise of
the Tendered Warrants hereunder as follows:
[_] By cashier's check or an official bank
check;
or
[_] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank:_________________________________
Account No.:__________________________
ABA Routing No.:______________________
B-1-2
<PAGE>
Reference:____________________________
[8. We hereby certify that none of the clients on whose behalf we are
exercising the above referenced Warrants are Currency Country Residents.]
Capitalized terms used herein and not defined have the meanings
assigned to them in the Currency Warrant Agreement.
Dated: ________ __, 199__
[NAME OF DEPOSITORY
PARTICIPANT]
[Participant Number]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-1-3
<PAGE>
EXHIBIT B-2
Form of Exercise Notice
for Warrants Represented by a Definitive Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation [name of Currency]
Currency [Put/Call] Warrants Expiring ________ __, 199__ (the
"Warrants")
1. We refer to the Currency Warrant Agreement, dated as of ________
__, 199__ (the "Currency Warrant Agreement"), between Bankers Trust New York
Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent
(the "Warrant Agent"). We hereby irrevocably exercise [_____________] Warrants
(the "Tendered Warrants") and deliver to you herewith a Definitive Warrant
Certificate or Certificates, registered in the name of the undersigned,
representing a number of Warrants at least equal to the number of Exercised
Warrants [and payment of the Exercise Price as provided in Section 2.01(b) of
the Currency Warrant Agreement].
2. This Exercise Notice [is] [is not] a Conditional Exercise Notice.
[We hereby acknowledge that a Conditional Exercise Notice will be void and of no
effect (and shall be disregarded for all purposes under the Currency Warrant
Agreement) if the Spot Rate on the date that, but for the provisions of Section
2.02(b) of the Currency Warrant Agreement, would be the Valuation Date for the
Warrants is more than [__________] [above] [below] the Spot Rate on the Exercise
Date (or, if the Exercise Date is not a Currency Country Business Day, on the
immediately preceding Currency Country Business Day).]
3. We hereby acknowledge that this Exercise Notice[, the Exercise
Price] and the Definitive Warrant Certificates representing the Tendered
Warrants must be received by you by [3:00] P.M., New York City time, on a New
York Business Day in order for the Valuation Date of the Tendered Warrants to be
the Currency Country Business Day next succeeding such New York Business Day,
and that if this Exercise Notice[, the Exercise Price] or such Definitive
Warrant Certificates are received by you after [3:00] P.M., New York City time,
but prior to the close of business on a
<PAGE>
New York Business Day, the Valuation Date of the Tendered Warrants shall be the
Currency Country Business Day next succeeding the first New York Business Day
following the day on which this Exercise Notice[, the Exercise Price] and such
Definitive Warrant Certificates are received. [We further acknowledge that if
this Conditional Exercise Notice[, the Exercise Price] or such Definitive
Warrant Certificates are received by you after [3:00] P.M., New York City time,
but prior to the close of business on a New York Business Day, that for purposes
of making the determinations required by such Conditional Exercise Notice, the
Warrants will be deemed to be exercised on the New York Business Day next
succeeding the day on which this Exercise Notice[, the Exercise Price] and such
Definitive Warrant Certificates are received.]
4. We hereby acknowledge that if you determine that this Exercise
Notice has not been duly completed or is not in proper form, this Exercise
Notice will be void and of no effect and will be deemed not to have been
delivered.
5. We hereby direct you to make payment of amounts payable to us as a
result of the exercise of the Warrants hereunder as follows:
[_] By cashier's check or an official bank
check;
or
[_] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank:_________________________________
Account No.:__________________________
ABA Routing No.:______________________
Reference:____________________________
[6. We hereby certify that at the time this notice is delivered to
you, the beneficial owners of the Tendered Warrants are not Currency Country
Residents.]
B-2-2
<PAGE>
Capitalized terms used herein and not defined have the meanings
assigned to them in the Currency Warrant Agreement.
Dated: ________ __, 199__
[NAME OF HOLDER]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-2-3
<PAGE>
EXHIBIT C
Form of Rejection Notice
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation [name of Currency]
Currency [Put/Call] Warrants Expiring ________ __, 199__ (the
"Warrants")
We refer to the Currency Warrant Agreement, dated as of ________ __,
199__ (the "Currency Warrant Agreement"), between Bankers Trust New York
Corporation (the "Corporation") and the undersigned, as Warrant Agent (the
"Warrant Agent").
In the case of Tendered Warrants represented by a Global Warrant
Certificate and rejected pursuant to Section 2.02(c)(v) of the Currency Warrant
Agreement: You are hereby notified that [the Exercise Notice delivered by you
was determined by us not to have been [duly completed] [in proper form]] [we
were not able to verify that you are a Depository Participant of [The Depository
Trust Company] in the manner, and pursuant to the procedures], as set forth in
the Currency Warrant Agreement. Accordingly, we have rejected your Exercise
Notice as being unsatisfactory as to form.
In the case of Tendered Warrants represented by a Definitive Warrant
Certificate and rejected pursuant to Section 2.02(c)(ii) of the Currency Warrant
Agreement: You are hereby notified that [the Exercise Notice delivered by you
was determined by us not to have been [duly completed] [in proper form]] [the
Definitive Warrant Certificate delivered by you was determined by us not to have
been in proper form], as set forth in the Currency Warrant Agreement.
Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to
form.
[In the case of Tendered Warrants that become void pursuant to Section
2.02(b) of the Currency Warrant Agreement: You are hereby notified that we have
rejected your Conditional Exercise Notice because the Spot Rate on the Valuation
Date was [____________], and the Spot Rate on the [Designated] Exercise Date
(or, if the [Designated] Exercise Date was not a Currency Country Business Day,
on
<PAGE>
the immediately preceding Currency Country Business Day) was [_______________].]
Capitalized terms used herein and not defined have the meanings
assigned to them in the Currency Warrant Agreement.
Dated: ________ __, 199__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D
Form of Confirmation of Exercise
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation [name of Currency]
Currency [Put/Call] Warrants Expiring ________ __, 199__ (the
"Warrants")
We refer to the Currency Warrant Agreement, dated as of ________ __,
199__ (the "Currency Warrant Agreement"), between Bankers Trust New York
Corporation (the "Corporation") and the undersigned, as Warrant Agent (the
"Warrant Agent").
We hereby confirm receipt of your Exercise Notice with respect to
____________ Warrants (the "Exercised Warrants"), and the [Definitive Warrant
Certificates representing the] Warrants relating thereto, which Exercise Notice
[and Definitive Warrant Certificates] we have found to be duly completed and in
good order[, and we have verified, in the manner provided in the Currency
Warrant Agreement, that you are a Depository Participant].
[The Corporation has elected to limit the number of Warrants that may
have an Exercise Date of ___________ __, 199__ to [____________]. Of the
Tendered Warrants, [_______________] Warrants have been selected to be Warrants
that will have an Exercise Date on such date (such Warrants, the "Exercised
Warrants"). The remaining [_____________] Tendered Warrants are deemed to be
Delayed Exercise Warrants.] [The Corporation has not elected to limit the
number of Warrants that may be exercised pursuant to Section 2.02(f) of the
Currency Warrant Agreement. Accordingly, all of the Tendered Warrants will have
an Exercise Date of __________ __, 199__ and are hereinafter referred to as
"Exercised Warrants".]
We hereby confirm that the aggregate Cash Settlement Value of [payment
currency] [_________________] of such Exercised Warrants ([payment currency]
[_____________] per Warrant) [minus the aggregate Exercise Price thereof] will
be made available to you in the form of a [wire transfer] [check], [two] New
York Business Days after the Valuation Date for the Exercised Warrants (or, if
the Valuation Date for the Exercised Warrants was not a New
<PAGE>
York Business Day, [three] New York Business Days after the Valuation Date) in
accordance with the terms of the Currency Warrant Agreement.
Capitalized terms used herein and not defined have the meanings
assigned to them in the Currency Warrant Agreement.
Dated: ________ __, 199__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
D-2
<PAGE>
EXHIBIT E-1
Form of Depository Participant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Automatic Exercise of Bankers Trust New York Corporation [name of
Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__
(the "Warrants")
We refer to the Currency Warrant Agreement, dated as of ________ __,
199__ (the "Currency Warrant Agreement"), between Bankers Trust New York
Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent
(the "Warrant Agent").
We hereby certify that:
(a) we are acting on behalf of the Owners of ____________ Warrants,
which have been automatically exercised pursuant to the Currency Warrant
Agreement and which we have delivered free on the records of the Depository
to the Warrant Account[; and
(b) we have received certification from such Owners that the
beneficial owners of such Warrants are not Currency Country Residents].
<PAGE>
Capitalized terms used herein and not defined have the meanings
assigned to them in the Currency Warrant Agreement.
Dated: ________ __, 199__
[NAME OF DEPOSITORY
PARTICIPANT]
[Participant Number]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
D-1-2
<PAGE>
EXHIBIT E-2
Form of Holder Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Automatic Exercise of Bankers Trust New York Corporation [name of
Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__
(the "Warrants")
We refer to the Currency Warrant Agreement, dated as of ________ __,
199__ (the "Currency Warrant Agreement"), between Bankers Trust New York
Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent
(the "Warrant Agent").
We hereby certify that:
(a) we are the Holders of ____________ Warrants, which have been
automatically exercised pursuant to the Currency Warrant Agreement; [and]
(b) we have surrendered the Definitive Warrant Certificates
representing such Warrants at the Warrant Agent Office[; and
(c) as of the date hereof, the beneficial owners of such Warrants are
not Currency Country Residents].
<PAGE>
Capitalized terms used herein and not defined have the meanings
assigned to them in the Currency Warrant Agreement.
Dated: ________ __, 199__
[NAME OF HOLDER]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
E-2-2
<PAGE>
EXHIBIT 4.8
================================================================================
INDEX WARRANT AGREEMENT
dated as of ________ __, 199__
between
BANKERS TRUST NEW YORK CORPORATION
and
[NAME OF WARRANT AGENT], as Warrant Agent
----------------
[Name of Index] Index [Put/Call] Warrants
Expiring ________ __, 199__
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
PARTIES....................................................... 1
RECITALS...................................................... 1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants;
Book-Entry Procedures; Successor
Depository..................................... 1
Section 1.02. Form; Denominations; Execution,
Countersignature, Delivery and
Dating of Global Warrant
Certificates................................... 4
Section 1.03. Definitive Warrant Certificates................ 5
Section 1.04. Maintenance of Warrant Register;
Registration of Transfers and
Exchanges of Global Warrant
Certificates................................... 7
Section 1.05. Mutilated, Destroyed, Lost and
Stolen Warrant Certificates.................... 9
Section 1.06. Cancellation of Warrants....................... 10
ARTICLE II
[EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS
Section 2.01. Duration of Warrants; Method of
Exercise; Minimum [and Maximum]
Exercise Amounts; Notice of
Exercise....................................... 11
Section 2.02. Exercise of Warrants........................... 14
Section 2.03. Automatic Exercise of Warrants................. 21
[Section 2.04. Cancellation of Warrants...................... 24
Section 2.05. Discontinuance or Modification of
Index.......................................... 24
Section 2.06. Designation of Agent for Receipt of
Notice......................................... 25
[Section 2.07. Extraordinary Events.......................... 25
Section 2.08. Temporary Suspension of the Right
to Exercise the Warrants....................... 25
-i-
<PAGE>
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders........................... 25
Section 3.02. Holder or Owner of Warrant May
Enforce Rights................................. 26
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent.................................. 26
Section 4.02. Certain Duties of the Warrant
Agent.......................................... 26
Section 4.03. Conditions of Warrant Agent's
Obligations.................................... 27
Section 4.04. Compliance With Applicable Laws................ 29
Section 4.05. Corporate Warrant Agent Required;
Eligibility.................................... 30
Section 4.06. Resignation and Removal;
Appointment of Successor....................... 30
Section 4.07. Acceptance of Appointment by
Successor...................................... 31
Section 4.08. Merger, Conversion, Consolidation
or Succession to Business...................... 32
ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the
Corporation and Sales, Leases and
Conveyances Permitted Subject to
Certain Conditions............................. 32
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Index Warrant
Agreement...................................... 34
Section 6.02. Form of Approval of Supplemental
Agreements by Owners or Holders................ 35
Section 6.03. Effect of Supplemental Agreements............... 35
-ii-
<PAGE>
Section 6.04. Reference in Warrants to
Supplemental Agreements........................ 36
ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Listing of Warrants on National
Securities Exchange............................ 36
Section 7.02. Governmental Approvals......................... 36
Section 7.03. Payment of Cash Settlement Value
[or Cancellation Amount]....................... 37
Section 7.04. Maintenance of Office or Agency;
Unclaimed Moneys............................... 37
Section 7.05. Corporate Existence............................ 38
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants................. 38
Section 8.02. Payment of Taxes............................... 38
Section 8.03. Notices and Demands to the
Corporation and Warrant Agent.................. 38
Section 8.04. Addresses for Notices.......................... 39
Section 8.05. Notices to Owners and Holders.................. 39
SECTION 8.06. GOVERNING LAW.................................. 39
Section 8.07. Benefits of Index Warrant
Agreement...................................... 39
Section 8.08. Successors and Assigns......................... 39
Section 8.09. Index Warrant Agreement and
Warrants Solely Corporate
Obligations.................................... 40
Section 8.10. Severability................................... 40
Section 8.11. Headings....................................... 40
Section 8.12. Counterparts................................... 40
Section 8.13. Inspection of Index Warrant
Agreement...................................... 40
EXHIBITS
Exhibit A Form of Warrant Certificate
Exhibit B-1 Form of Exercise Notice from
Depository Participant
Exhibit B-2 Form of Exercise Notice from Holder
of Definitive Warrant Certificate
Exhibit C Form of Rejection Notice
Exhibit D Form of Confirmation of Exercise
-iii-
<PAGE>
Exhibit E-1 Form of Depository Participant
Certificate
Exhibit E-2 Form of Holder Certificate
-iv-
<PAGE>
INDEX WARRANT AGREEMENT
INDEX WARRANT AGREEMENT, dated as of ________ __,
199__ (as modified, amended or supplemented, this
"Agreement"), between BANKERS TRUST NEW YORK CORPORATION, a
corporation organized and existing under the laws of the
State of New York (the "Corporation"), and [NAME OF WARRANT
AGENT], a [banking association] [corporation] organized and
existing under the laws of ______________, as Warrant Agent
(the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Corporation proposes to sell [put]
[call] warrants (each, a "Warrant") representing the right
to receive from the Corporation an amount in [U.S. dollars
(specify other currency if applicable)] to be determined by
reference to [decreases] [increases] in the [(insert name of
security index or describe portfolio of specified stocks or
other securities)] (the "Index"); and
WHEREAS, the Corporation desires the Warrant Agent
to act on behalf of the Corporation, and the Warrant Agent
is willing so to act, in connection with the issuance,
transfer, exchange, exercise and cancellation of the
Warrants, and the Corporation desires to set forth herein,
among other things, the provisions of the Warrants and the
terms and conditions under which they may be issued,
transferred, exchanged, exercised and canceled;
NOW, THEREFORE, in consideration of the premises
and of the mutual agreements herein contained, the parties
hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants;
Book-Entry Procedures; Successor Depository. (a) Each
Warrant shall represent the right, subject to the provisions
contained herein and therein, to receive the Cash Settlement
Value (as defined in Section 2.02(g)) [or the Cancellation
Amount (as defined in Section 2.04(b)), as the case may be,]
of such Warrant. Such Cash Settlement Value [or
Cancellation Amount, as the case may be,] shall be payable
<PAGE>
in [U.S. dollars (specify other currency if applicable)].
In no event shall any registered holder of a Warrant (each,
a "Holder") or any Owner (as defined in Section 1.01(c)) be
entitled to receive any interest on any Cash Settlement
Value [or Cancellation Amount, as the case may be], and the
Warrants shall not entitle the Holders or Owners thereof to
any of the rights of the holder of any of the securities on
which the Index is based (the "Underlying Securities") or
any other securities. No Warrant shall require or entitle
the Holder or Owner thereof to sell, deliver, purchase or
take delivery of any Underlying Securities or any other
securities to or from the Corporation, nor shall the
Corporation be under any obligation to purchase or take
delivery of, or sell or deliver, any such securities to or
from the Holders or Owners thereof.
(b) The Warrants shall constitute direct,
unconditional and unsecured obligations of the Corporation.
(c) The Warrants shall initially be issued in
book-entry form and represented by one or more global
certificates (each, a "Global Warrant Certificate"). Owners
of beneficial interests in a Global Warrant Certificate
(each, an "Owner") shall not be entitled to receive
definitive certificates evidencing the Warrants; provided,
however, that the Corporation shall issue Warrants in
definitive form (each, a "Definitive Warrant Certificate",
and with the Global Warrant Certificates, the "Warrant
Certificates") in exchange for a Global Warrant Certificate
if (i) the Depository (as defined in Section 1.01(d)) has
notified the Corporation that it is unwilling or unable to
continue as Depository for such Global Warrant Certificate
or if at any time it has ceased to be a clearing agency
registered under the Securities Exchange Act of 1934, as
amended, at a time when it is required to be so registered
in order to act as Depository, and a successor Depository is
not appointed by the Corporation within 90 days, (ii) the
Corporation at any time shall determine to have the Warrants
represented by Definitive Warrant Certificates and shall
execute and deliver to the Warrant Agent a written order
signed in the name of the Corporation by its Chairman of the
Board, its Vice Chairman, its President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary (each such order, a "Corporation
Order") stating that the Corporation wishes to issue
Warrants in definitive form in exchange for such Global
Warrant Certificate, or (iii) there shall have occurred and
be continuing a default in the payment of the Cash
-2-
<PAGE>
Settlement Amount [or Cancellation Amount, as the case may
be,] with respect to the Warrants. In any such instance,
and in accordance with the provisions of this Agreement,
each Owner shall be entitled to have registered in its name
the number of Warrants in definitive form equivalent to such
Owner's beneficial interest in such Global Warrant
Certificate and shall be entitled to physical delivery of
Definitive Warrant Certificates representing such Warrants
by the Depository Participant or Indirect Participant (each
as defined in Section 1.01(d)) through which such Owner's
beneficial interest is reflected.
(d) Each Global Warrant Certificate shall
initially be registered in the name of, and the Holder of
each Warrant represented by such Global Warrant Certificate
shall be, [The Depository Trust Company] or its agent (the
"Depository", which term shall include any nominee of the
Depository and any successor depository selected by the
Corporation as provided in Section 1.01(e)), and shall be
deposited with the Depository or its agent for credit to the
accounts of the Depository Participants as shown on the
records of the Depository from time to time. The Warrant
holdings of Depository Participants shall be recorded on the
books of the Depository. The Warrant holdings of Indirect
Participants and of Owners who are customers of Depository
Participants shall be reflected on the books and records of
such Depository Participants and shall not be known to the
Warrant Agent, the Corporation or the Depository. The
Warrant holdings of Owners who are customers of Indirect
Participants shall be reflected on the books and records of
such Indirect Participants and shall not be known to the
Warrant Agent, the Corporation, the Depository Participants
or the Depository. Neither the Corporation nor the Warrant
Agent shall have any responsibility or liability for any
aspect of the records relating to beneficial ownership
interests in a Global Warrant Certificate or for
maintaining, supervising or reviewing any records relating
to any such beneficial ownership interest. As used herein,
the term "Depository Participant" shall include any
participant in the Depository's system and, for purposes of
this Agreement, shall also mean any participant in the book-
entry system of any successor Depository. As used herein,
the term "Indirect Participant" shall include any other
bank, securities dealer, trust company or other Person (as
defined below) that clears or maintains a custodial
relationship with a Depository Participant, either directly
or indirectly. As used herein, the term "Person" shall
include any individual, corporation, partnership, joint
venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
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(e) The Corporation may from time to time select
a new Person to act as Depository and, if such selection is
made, the Corporation shall promptly give the Warrant Agent
and the existing Depository notice to such effect
identifying the new Depository. As promptly as practicable
thereafter, the Depository shall deliver each Global Warrant
Certificate then held by it to the Warrant Agent, and the
Warrant Agent shall register the transfer of such Global
Warrant Certificate to the new Depository as provided in
Section 1.04. Appropriate changes may be made in each
Global Warrant Certificate, and in the notice of exercise
and the related notices delivered in connection with an
exercise or deemed exercise of Warrants to reflect the
selection of the new Depository.
Section 1.02. Form; Denominations; Execution,
Countersignature, Delivery and Dating of Global Warrant
Certificates. (a) At any time and from time to time after
the execution and delivery of this Agreement, the
Corporation may deliver one or more Global Warrant
Certificates, each representing any integral number of
Warrants [not exceeding ________________ Warrants originally
issued,] executed by the Corporation as set forth in Section
1.02(b), to the Warrant Agent for countersignature, together
with a Corporation Order for the countersignature and
delivery of such Warrants, and the Warrant Agent shall
manually countersign and deliver such Warrants in accordance
with such Corporation Order. During such time as Warrants
shall be represented by Global Warrant Certificates, the
Corporation may issue additional Warrants in accordance with
the terms of this Agreement either by issuing an additional
Global Warrant Certificate or by issuing a new Global
Warrant Certificate in exchange for the existing Global
Warrant Certificate, provided that any such exchange shall
conform to the requirements set forth in Section 1.04(f).
(b) Each Global Warrant Certificate, whenever
issued, shall be in registered form substantially in the
form of Exhibit A, with such appropriate insertions,
omissions, substitutions and other variations as are
required or permitted by this Agreement. Each Global
Warrant Certificate shall be printed, lithographed,
typewritten, mimeographed or engraved on steel engraved
borders or otherwise reproduced in any other manner as may
be approved by the officers executing the same (such
execution to be conclusive evidence of such approval) and
may have imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification or
designation and such legends or endorsements as the officers
of the Corporation executing the same may approve (such
execution to be conclusive evidence of such approval) and
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that are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto, or with
any rule or regulation of any securities exchange on which
the Warrants may be listed, or of the Depository, or to
conform to usage. Each Global Warrant Certificate shall be
signed on behalf of the Corporation by its Chairman of the
Board, its Vice Chairman, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant
Secretaries. The signature of any such officer on any
Global Warrant Certificate may be either manual or
facsimile. Typographical and other minor errors or defects
in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of any
Global Warrant Certificate that has been duly countersigned
and delivered by the Warrant Agent.
(c) No Global Warrant Certificate shall be
entitled to any benefit under this Agreement or be valid or
obligatory for any purpose, and no Warrant evidenced thereby
shall be exercisable, unless such Global Warrant Certificate
has been countersigned by the Warrant Agent. Such signature
by the Warrant Agent upon any Global Warrant Certificate
executed by the Corporation shall be conclusive evidence,
and the only evidence, that such Global Warrant Certificate
so countersigned has been duly issued hereunder.
(d) Any Global Warrant Certificate bearing the
manual or facsimile signatures of individuals who were at
the time of such signature the proper officers of the
Corporation shall bind the Corporation, notwithstanding that
such individuals or any of them have ceased to hold such
offices prior to the countersignature and delivery of such
Global Warrant Certificate or did not hold such offices at
the date of such Global Warrant Certificate.
(e) Each Global Warrant Certificate shall be
dated the date of its countersignature.
Section 1.03. Definitive Warrant Certificates.
(a) Any Definitive Warrant Certificate issued in accordance
with Section 1.01(c), whenever issued, shall be in
registered form substantially in the form of Exhibit A, with
such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this
Agreement or necessary or desirable for individual
Definitive Warrant Certificates, provided that each such
Definitive Warrant Certificate shall have imprinted on the
reverse thereof the Exercise Notice substantially in the
form of Exhibit B-2. Each Definitive Warrant Certificate
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may represent any integral number of Warrants [not exceeding
________________ Warrants originally issued], shall be
printed, lithographed, typewritten, mimeographed or engraved
on steel engraved borders or otherwise reproduced in any
other manner as may be approved by the officers executing
the same (such execution to be conclusive evidence of such
approval), and may have imprinted or otherwise reproduced
thereon such letters, numbers or other marks of
identification or designation and such legends or
endorsements as the officers of the Corporation executing
the same may approve (such execution to be conclusive
evidence of such approval) and that are not inconsistent
with the provisions of this Agreement, or as may be required
to comply with any law or with any rule or regulation made
pursuant thereto, or with any rule or regulation of any
securities exchange on which the Warrants may be listed, or
of the Depository, or to conform to usage. Each Definitive
Warrant Certificate shall be signed on behalf of the
Corporation upon the same conditions, in substantially the
same manner and with the same effect as set forth in Section
1.02 with respect to Global Warrant Certificates.
(b) Each Definitive Warrant Certificate, when so
signed on behalf of the Corporation, shall be delivered to
the Warrant Agent together with a Corporation Order for the
countersignature and delivery of such Warrants, and the
Warrant Agent shall manually countersign and deliver such
Warrants in accordance with such Corporation Order upon the
same conditions, in substantially the same manner and with
the same effect as set forth in Section 1.02 with respect to
Global Warrant Certificates. Each Definitive Warrant
Certificate shall be dated the date of its countersignature.
(c) No Definitive Warrant Certificate shall be
entitled to any benefit under this Agreement or be valid or
obligatory for any purpose, and no Warrant evidenced thereby
shall be exercisable, unless such Definitive Warrant
Certificate has been countersigned by the Warrant Agent.
Such signature by the Warrant Agent upon any Definitive
Warrant Certificate executed by the Corporation shall be
conclusive evidence, and the only evidence, that such
Definitive Warrant Certificate so countersigned has been
duly issued hereunder.
(d) Any Definitive Warrant Certificate bearing
the manual or facsimile signatures of individuals who were
at the time of such signature the proper officers of the
Corporation shall bind the Corporation, notwithstanding that
such individuals or any of them have ceased to hold such
offices prior to the countersignature and delivery of such
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Definitive Warrant Certificate or did not hold such offices
at the date of such Definitive Warrant Certificate.
(e) Definitive Warrant Certificates delivered in
exchange for a Global Warrant Certificate shall be
registered in such names and addresses (including tax
identification numbers) and in such denominations as shall
be requested in writing by the Depository or its nominee in
whose name such Global Warrant Certificate is registered,
upon written certification to the Corporation and the
Warrant Agent, in form satisfactory to each of them, of the
existing beneficial ownership interests in such Global
Warrant Certificate.
(f) The Holder of any Warrant represented by a
Definitive Warrant Certificate shall be the Person in whose
name such Definitive Warrant Certificate is registered in
the Warrant Register (as defined in Section 1.04) at such
time.
Section 1.04. Maintenance of Warrant Register;
Registration of Transfers and Exchanges of Global Warrant
Certificates. (a) The Corporation shall cause to be kept
at the Warrant Agent Office (as defined in Section 1.04(b))
a register (the "Warrant Register"), which may be maintained
electronically and in which, subject to such reasonable
regulations as it may prescribe, the Corporation shall
provide for the registration and registration of transfer,
exchange, exercise and cancellation of Warrants. The
Warrant Agent is hereby appointed "Warrant Registrar" for
the purpose of registering Warrant Certificates and
transfers and exchanges of Warrant Certificates as herein
provided.
(b) A Warrant Certificate may be transferred at
the option of the Holder thereof upon surrender of such
Warrant Certificate at the office or agency of the Warrant
Agent maintained for the purpose of transferring,
exchanging, exercising and canceling the Warrants, which
shall be south of Chambers Street in the Borough of
Manhattan, The City of New York (the "Warrant Agent
Office"), and which is, on the date of this Agreement,
_______________________, New York, New York, _____,
Attention: [Corporate Trust Department], or at the office
of any successor Warrant Agent as provided in Article IV.
Upon any such registration of transfer, the Corporation
shall execute, and the Warrant Agent shall countersign and
deliver, as provided in Section 1.02 or 1.03, as the case
may be, in the name of the designated transferee a new
Global Warrant Certificate or Definitive Warrant
Certificate, as the case may be, of like tenor, of any
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authorized denomination and representing in the aggregate a
like number of unexercised Warrants as evidenced by such
Warrant Certificate at the time of such registration of
transfer, and bearing a number not contemporaneously
outstanding.
(c) A Warrant Certificate may be exchanged at the
option of the Holder thereof for other Global Warrant
Certificates or Definitive Warrant Certificates, as the case
may be, of like tenor, of any authorized denomination and
representing in the aggregate a like number of unexercised
Warrants, upon surrender of such Warrant Certificate at the
Warrant Agent Office. Whenever any Warrant Certificate is
so surrendered for exchange, the Corporation shall execute,
and the Warrant Agent shall countersign and deliver, as
provided in Section 1.02 or 1.03, as the case may be, the
Global Warrant Certificates or Definitive Warrant
Certificates, as the case may be, that the Holder of such
exchanged Warrant Certificate is entitled to receive and
bearing a number not contemporaneously outstanding.
(d) Any Warrant Certificate presented or
surrendered for registration of transfer or for exchange
shall be duly endorsed or accompanied by a written
instrument or instruments of transfer in form satisfactory
to the Warrant Agent and the Corporation, duly signed by the
registered Holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney,
such signature to be guaranteed by a bank or trust company,
by a broker or dealer that is a member of the National
Association of Securities Dealers, Inc. or by a member of a
national securities exchange.
(e) Except as otherwise provided herein or in a
Global Warrant Certificate, the Warrant Agent shall register
the transfer of such Global Warrant Certificate on the
records of the Warrant Agent only to the Depository, to a
nominee of the Depository, to a successor Depository or to a
nominee of the successor Depository.
(f) A Global Warrant Certificate may be exchanged
for a new Global Warrant Certificate to reflect the issuance
by the Corporation of additional Warrants[; provided,
however, that in no event shall the number of Warrants
represented by any Global Warrant Certificate exceed
___________________ originally issued]. To effect such an
exchange, the Corporation shall deliver to the Warrant Agent
a new Global Warrant Certificate duly executed on behalf of
the Corporation as provided in Section 1.02, together with a
Corporation Order for the countersignature and delivery of
such Warrants. The Warrant Agent shall countersign such new
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Global Warrant Certificate as provided in Section 1.02 and
in accordance with such Corporation Order, and shall deliver
such new Global Warrant Certificate to the Depository in
exchange for, and upon receipt of, the Global Warrant
Certificate then held by the Depository. The Warrant Agent
shall cancel the Global Warrant Certificate delivered to it
by the Depository and return the canceled Global Warrant
Certificate to the Corporation.
(g) All Warrant Certificates issued upon any
registration of transfer or exchange of Global Warrant
Certificates or Definitive Warrant Certificates, as the case
may be, shall be valid obligations of the Corporation,
evidencing the same obligations of the Corporation and
entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered upon such registration of
transfer or exchange. The Warrant Agent shall not be
required to effect any exchange or transfer that would
result in the issuance of a Warrant Certificate evidencing a
fraction of a Warrant or a number of full Warrants and a
fraction of a Warrant.
(h) No service charge shall be made for any
registration of transfer or exchange of Warrant
Certificates, but the Corporation may require payment of a
sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with
any such transfer or exchange.
Section 1.05. Mutilated, Destroyed, Lost and
Stolen Warrant Certificates. (a) If any mutilated Warrant
Certificate is surrendered to the Warrant Agent, the
Corporation shall execute, and the Warrant Agent shall
countersign and deliver in exchange therefor, as provided in
Section 1.02 or 1.03, as the case may be, a new Warrant
Certificate of like tenor representing a like number of
unexercised Warrants and bearing a number not
contemporaneously outstanding.
(b) If there shall be delivered by a Holder of a
Warrant Certificate to the Corporation and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss
or theft of any Warrant Certificate, (ii) such security or
indemnity as may be required by them to save each of them
and any agent of either of them harmless, and (iii) funds
sufficient to cover any cost or expense to the Corporation
(including any fees charged by the Warrant Agent) relating
to the issuance of a new Warrant Certificate, then, in the
absence of notice to the Corporation or the Warrant Agent
that such Warrant Certificate has been acquired by a bona
fide purchaser, the Corporation shall execute, and the
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Warrant Agent shall countersign and deliver, as provided in
Section 1.02 or 1.03, as the case may be, in lieu of any
such destroyed, lost or stolen Warrant Certificate, a new
Warrant Certificate of like tenor representing a like number
of unexercised Warrants and bearing a number not
contemporaneously outstanding.
(c) If the Warrants evidenced by any such
mutilated, destroyed, lost or stolen Warrant Certificate
have been exercised, or have been or are about to be deemed
to be exercised, the Corporation in its discretion may,
instead of issuing a new Warrant Certificate, treat the same
as if it had received written irrevocable notice of exercise
in good form in respect thereof, as provided herein.
(d) Upon the issuance of any new Warrant
Certificate under this Section, the Corporation may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of
the Warrant Agent) connected therewith.
(e) Every new Warrant Certificate issued pursuant
to this Section 1.05 in lieu of any mutilated, destroyed,
lost or stolen Warrant Certificate shall constitute an
original additional contractual obligation of the
Corporation, whether or not the mutilated, destroyed, lost
or stolen Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the
benefits of this Agreement equally and proportionately with
any and all other Warrant Certificates duly issued
hereunder.
(f) The provisions of this Section 1.05 are
exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 1.06. Cancellation of Warrants. (a) If
the Corporation shall purchase or otherwise acquire Warrants
represented by a Global Warrant Certificate, such Warrants
may, at the option of the Corporation and upon notification
to the Warrant Agent, be surrendered free through a
Depository Participant for credit to the Warrant Account (as
defined in Section 2.01(b)) and if so credited, the Warrant
Agent shall promptly note the cancellation of such Warrants
by notation on the records of the Warrant Agent and on the
Warrant Register.
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(b) When all of the Warrants represented by any
Global Warrant Certificate have been exercised by the Owner
thereof, automatically exercised or otherwise canceled, and
upon receipt of the same by the Warrant Agent, the Warrant
Agent shall promptly cancel such Global Warrant Certificate.
(c) The Corporation may at any time deliver to
the Warrant Agent for cancellation any Definitive Warrant
Certificates previously countersigned and delivered
hereunder that the Corporation may have acquired in any
manner whatsoever, and the Warrant Agent shall promptly
cancel all Definitive Warrant Certificates so delivered.
(d) All Warrant Certificates surrendered for
exercise, registration of transfer or exchange or
cancellation, if surrendered to any Person other than the
Warrant Agent, shall be delivered to the Warrant Agent, and
the Warrant Agent shall promptly cancel all such Warrant
Certificates and all other Warrant Certificates surrendered
to it for exercise, registration of transfer or exchange or
cancellation.
(e) No Warrant Certificate shall be countersigned
in lieu of or in exchange for any Warrant Certificate
canceled as provided in this Section 1.06 except as
expressly permitted by this Agreement. All canceled Warrant
Certificates held by the Warrant Agent shall be destroyed by
it unless by written order the Corporation requests their
return to it.
ARTICLE II
[EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS
Section 2.01. Duration of Warrants; Method of
Exercise; Minimum [and Maximum] Exercise Amounts; Notice of
Exercise. (a) Subject to the limitations described herein,
each Warrant may be exercised in whole but not in part on
any New York Business Day (as defined in Section 2.01(f))
from [its date of issuance (specify other date if
applicable)] until [3:00 P.M.], New York City time, on the
earlie[st] of (i) [______________ (specify date upon which
right to exercise Warrants expires)] or, if such date is not
a New York Business Day, on the next succeeding New York
Business Day (the "Expiration Date"), [or] (ii) the date of
automatic exercise as provided in Section 2.03 [or (iii) the
date of cancellation as provided in Section 2.04][; provided
that the Corporation may temporarily suspend the right of
the Holders to exercise their Warrants pursuant to the
provisions of Section 2.08]. [No exercise price shall be
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payable by any Holder or Owner in connection with the
exercise of any Warrant.] [The exercise price for each
Warrant shall be $_____ and shall be payable [in U.S.
dollars (specify other currency if applicable)] (the
"Exercise Price").]
(b) Except in the case of automatic exercise,
each Warrant may be exercised by:
(i) in the case of any Warrant represented by a
Global Warrant Certificate (each, a "Book-Entry
Warrant"), (A) transfer of such Warrant on the records
of the Depository free to the Warrant Agent's
Depository Participant account (entitled
____________________), or such other account of the
Warrant Agent at the Depository as the Warrant Agent
shall specify (the "Warrant Account"), [and]
(B) delivery to the Warrant Agent as provided in
Section 2.01(d)(i)(C) of written notice (an "Exercise
Notice") duly completed and executed by a Depository
Participant acting on behalf of the Owner of such
Warrant [and (C) payment of the Exercise Price [in U.S.
dollars (specify other currency if applicable)] [in
cash or by cashier's check or official bank check in
New York Clearing House funds] [by bank wire transfer
in immediately available funds] payable to the account
of the Corporation]; and
(ii) in the case of Warrants represented by a
Definitive Warrant Certificate (each, a "Certificated
Warrant"), (A) surrender of such Definitive Warrant
Certificate to the Warrant Agent at the Warrant Agent
Office, [and] (B) delivery to the Warrant Agent as
provided in Section 2.01(d)(ii)(C) of an Exercise
Notice duly completed and executed by the Holder of
such Warrant [and (C) payment of the Exercise Price [in
U.S. dollars (specify other currency if applicable)]
[in cash or by cashier's check or official bank check
in New York Clearing House funds] [by bank wire
transfer in immediately available funds] payable to the
account of the Corporation];
provided, however, that each Exercise Notice is subject to
rejection by the Warrant Agent as provided herein.
(c) Not fewer than [specify minimum exercise
amount] [nor more than [specify maximum exercise amount]]
Warrants may be exercised by or on behalf of any one Owner
or, in the case of Certificated Warrants, any one Holder at
any one time, except that no such minimum [or maximum]
exercise amount shall apply in the case of (i) the automatic
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exercise of any Warrants, or (ii) the exercise of any
Warrants on the Expiration Date.
(d) An Exercise Notice [may be conditioned as set
forth in Section 2.02(b), but] shall [otherwise] be
unconditional. Each Exercise Notice shall be irrevocable
and:
(i) in the case of any Book-Entry Warrant, shall
(A) be in the form of Exhibit B-1 hereto, [(B) shall
include a certification by the Depository Participant
submitting such Exercise Notice that the Owners
affected by such Exercise Notice are not Index Country
Residents (as defined in Section 2.01(f))] and
(C) shall be sent to the Warrant Agent in writing at
its address as set forth in such form of Exercise
Notice or at such other address as the Warrant Agent
may specify from time to time by notice given in
accordance with Section 8.05; and
(ii) in the case of any Certificated Warrant,
shall (A) be in the form of Exhibit B-2 hereto and
shall, unless otherwise agreed by the Corporation and
the Warrant Agent, be set forth on the reverse of the
Definitive Warrant Certificate representing such
Certificated Warrant, [(B) shall include a
certification by the Holder of such Certificated
Warrants that such Holder is not an Index Country
Resident] and (C) shall be sent to the Warrant Agent in
writing at its address as set forth in such form of
Exercise Notice or at such other address as the Warrant
Agent may specify from time to time by notice given in
accordance with Section 8.05.
(e) Except as provided in Section 2.02(c), the
Warrant Agent and the Corporation shall be entitled to rely
conclusively on any Exercise Notice received by the Warrant
Agent with no duty of inquiry by either of them.
(f) As used in this Agreement, "New York Business
Day" means any day other than a Saturday or Sunday or a day
on which the [New York Stock Exchange or American Stock
Exchange (list any other relevant securities exchanges)] is
not open for securities trading or banking institutions
generally in The City of New York are authorized or required
by law or executive order to close; "Index Country Business
Day" means any day other than (i) a Saturday or Sunday or a
day on which banking institutions generally in [(specify
name of Index country)] are authorized or required by law or
executive order to close or (ii) a day on which the [(list
names of relevant exchanges)] are not open for business[;
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and "Index Country Resident" means a resident of, or any
corporation or other Person organized under the laws of
[(specify name of Index country)], its territories, its
possessions or other areas subject to its jurisdiction].
Section 2.02. Exercise of Warrants. (a) Except
in the case of automatic exercise as provided in
Section 2.03 [or cancellation as provided in Section 2.04]
and subject to Section 2.02(c)([ii]) [and 2.02(f)], the
exercise date (the "Exercise Date") for a Warrant shall be
(i) the New York Business Day on which the Warrant Agent
receives delivery of such Warrant to the Warrant Account, in
the case of Book-Entry Warrants, or of the Definitive
Warrant Certificate representing such Warrant at the Warrant
Agent Office, in the case of Certificated Warrants, [and] an
Exercise Notice relating to such Warrant in good order [and
payment of the Exercise Price in the manner specified in
Section 2.01(b)], if such receipt occurs at or prior to
[3:00] P.M., New York City time, on such New York Business
Day, and (ii) otherwise the New York Business Day next
succeeding the day on which the Warrant Agent receives such
Warrant[, the Exercise Price] and such Exercise Notice,
which next succeeding New York Business Day shall be the day
on which such Warrant[, Exercise Price] and Exercise Notice
shall be deemed to have been received. If any Exercise
Notice[, the related Exercise Price] or the Warrants to
which such Exercise Notice relates are received after
[3:00] P.M., New York City time, on the Expiration Date,
such Exercise Notice shall be void and of no effect and
shall be deemed not to have been delivered. Except in the
case of automatic exercise as provided in Section 2.03, the
"Valuation Date" for a Warrant shall be the first Index
Country Business Day next succeeding the Exercise Date of
such Warrant. [The "Designated Exercise Date" for a Warrant
shall be the date that, but for the provisions of Section
2.02(f), would be the Exercise Date for such Warrant in
accordance with this Section 2.02(a).]
[(b) Notwithstanding anything in this Agreement
to the contrary, if a Depository Participant, in the case of
Book-Entry Warrants, or a Holder, in the case of
Certificated Warrants, has specified in its Exercise Notice
that such Exercise Notice is conditional (a "Conditional
Exercise Notice"), then such Conditional Exercise Notice
shall be void and of no effect, and shall be disregarded for
all purposes of this Agreement, if [Describe the terms upon
which the Exercise Notice may be conditional, which may be
as follows: the Spot Index (as defined in Section 2.02(g))
on the day that, but for the provisions of this Section
2.02(b), would be the Valuation Date for such Warrants is
more than __________ [above] [below] the Spot Index on the
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[Designated] Exercise Date of such Warrants (or, if the
[Designated] Exercise Date is not an Index Country Business
Day, on the immediately preceding Index Country Business
Day) (the "Reference Value").]
(c) Following receipt of proper delivery of any
Warrant[, the Exercise Price] and the Exercise Notice
related to such Warrant in accordance with Section 2.01(b),
the Warrant Agent shall:
[(i) deposit all funds received by it in payment of
the Exercise Price of such Warrant to the account of
the Corporation maintained with it for such purpose
(unless otherwise instructed in writing by the
Corporation), and advise the Corporation by telephone
and in writing, by facsimile transmission or otherwise,
at the end of each day on which any such payment is
received of the amount so deposited to its account;]
(ii)(A) in the case of a Book-Entry Warrant,
promptly determine whether such Exercise Notice has
been duly completed and is in proper form and verify
that the Person that executed such Exercise Notice is
listed as a Depository Participant in the most recent
published edition of the Depository's Eligible
Corporate Securities Book (or the comparable
publication of any successor Depository) and, if such
Person is not listed therein, make reasonable efforts
to obtain verbal verification from the Depository's
Planning Department (telephone number 212-709-1000) (or
the comparable department of a successor Depository)
that such Person is a Depository Participant; and
(B) in the case of a Certificated Warrant, promptly
determine whether such Exercise Notice has been duly
completed and is in proper form and whether the
Definitive Warrant Certificate representing such
Warrant is in proper form;
(iii)(A) in the case of a Book-Entry Warrant, if
the Warrant Agent determines that such Exercise Notice
has not been duly completed or is not in proper form,
or is unable through the procedures described in clause
([ii])(A) above to verify that the Person that
submitted such Exercise Notice is a Depository
Participant, then the Warrant Agent shall reject such
Exercise Notice and shall send to the Depository
Participant that submitted such Exercise Notice a
notice of rejection substantially in the form of
Exhibit C hereto (a "Rejection Notice") and redeliver
the Warrants to which such rejected Exercise Notice
relates free through the facilities of the Depository
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to the account from which they were transferred; and
(B) in the case of a Certificated Warrant, if the
Warrant Agent determines that such Exercise Notice has
not been duly completed or is not in proper form, or
that the Definitive Warrant Certificate representing
such Warrant is not in proper form, then the Warrant
Agent shall reject such Exercise Notice and shall send
a Rejection Notice to the Holder of such Warrants and
return such Definitive Warrant Certificate to such
Holder by first class mail at the expense of the
Corporation;
(iv) by [5:00 P.M.], New York City time, on the
New York Business Day on which such Exercise Notice is
received (or deemed to have been received), notify the
Corporation (and such other parties (not to exceed two)
as the Corporation shall designate in writing) of
(A) the total number of Warrants in respect of which
Exercise Notices were received (or deemed to have been
received) at or prior to [3:00 P.M.], New York City
time, on such date [and] (B) the number of such
Exercise Notices that were rejected by the Warrant
Agent pursuant to clause ([iii]) above and the
aggregate number of Warrants to which such rejected
Exercise Notices relate[, and (C) the number of such
Exercise Notices that were Conditional Exercise Notices
and the aggregate number of Warrants to which such
Conditional Exercise Notices relate];
[(v) if any of such Exercise Notices are
Conditional Exercise Notices, by [5:00 P.M.], New York
City time, on the Valuation Date for such Warrants (or,
if such Valuation Date is not a New York Business Day,
on the next succeeding New York Business Day),
(A) determine the Reference Value for such Warrants and
the Spot Index for the date that, but for the
provisions of Section 2.02(b), would be the Valuation
Date of such Warrants; (B) determine whether any
Conditional Exercise Notices have become void pursuant
to such Section 2.02(b); and (C) if so, promptly notify
the Corporation (and such other parties (not to exceed
two) as the Corporation shall designate in writing) and
send a Rejection Notice to the appropriate Depository
Participant or Holder, as the case may be, and (x) in
the case of Book-Entry Warrants, redeliver such
Warrants free through the facilities of the Depository
to the account from which they were transferred or
(y) in the case of Certificated Warrants, return such
Warrants to such Holder by first class mail at the
expense of the Corporation.]
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(vi) by [5:00 P.M.], New York City time, on the
Valuation Date for such Warrants (or, if such Valuation
Date is not a New York Business Day, on the next
succeeding New York Business Day), determine the
aggregate number of Warrants covered by Exercise
Notices that have not [become void pursuant to Section
2.02(b) or] been rejected pursuant to clause ([iii])
above (the "[Exercised] [Tendered] Warrants");
[(vii) by [5:00 P.M.], New York City time, on the
Valuation Date for the Tendered Warrants (or, if such
Valuation Date is not a New York Business Day, on the
next succeeding New York Business Day), determine
pursuant to Section 2.02(f) the number of such Tendered
Warrants that shall not be Delayed Exercise Warrants
(such Tendered Warrants, the "Exercised Warrants");]
(viii) by [5:00 P.M.], New York City time, on the
Valuation Date for the Exercised Warrants (or, if such
Valuation Date is not a New York Business Day, on the
next succeeding New York Business Day), (A) determine
the Cash Settlement Value of the Exercised Warrants,
(B) notify the Corporation (and such other parties (not
to exceed two) as the Corporation shall designate in
writing) of the aggregate Cash Settlement Value with
respect to such Exercised Warrants, and (C) send notice
of confirmation of exercise in substantially the form
of Exhibit D hereto to the appropriate Depository
Participant or Holder, as the case may be; and
(ix) promptly deliver a copy of each such Exercise
Notice to the Corporation and advise the Corporation of
such other matters relating to any of the Warrants
covered thereby, whether or not they constitute
[Tendered Warrants or] Exercised Warrants, as the
Corporation shall reasonably request.
(d) At or before [3:00 P.M.], New York City time,
on the [fifth] New York Business Day following the Valuation
Date for any Exercised Warrants (or, if such Valuation Date
is not a New York Business Day, on the [sixth] New York
Business Day after such Valuation Date) (such date, with
respect to such Exercised Warrants, the "Settlement Date"),
the Corporation shall make available to the Warrant Agent
funds in an amount equal to, and for the payment of, the
aggregate Cash Settlement Value of such Exercised Warrants.
On the New York Business Day on which the Corporation has
made adequate funds available to the Warrant Agent at or
prior to [3:00 P.M.], New York City time, the Warrant Agent
shall make payment available (i) if the Exercised Warrants
are Book-Entry Warrants, in the form of a wire transfer to
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the appropriate Depository Participant after [3:00 P.M.],
New York City time, but prior to the close of business, on
such day, such payment to be in the amount of the aggregate
Cash Settlement Value of the Exercised Warrants exercised by
such Depository Participant, and (ii) if the Exercised
Warrants are Certificated Warrants, in the form of one or
more cashier's checks or official bank checks to each
appropriate Holder after [3:00 P.M.], New York City time,
but prior to the close of business, on such day, such
payment to be in the amount of the Cash Settlement Value of
the Exercised Warrants exercised by such Holder. In the
case of payments by the Warrant Agent to a Depository
Participant, the Warrant Agent shall have no responsibility
for the crediting by such Depository Participant of the Cash
Settlement Value of such Warrants to the appropriate Owners.
(e) (i) The Warrant Agent shall cause its
records, which may be kept electronically, to be marked to
reflect the reduction in the number of Warrants evidenced by
each Global Warrant Certificate by the number of such
Warrants for which payment has been made available as
provided in Section 2.02(d) promptly after such payment has
been made available. In the absence of manifest error, the
Warrant Agent's records shall be conclusive evidence as to
such matters.
(ii) If any Definitive Warrant Certificate shall
be surrendered to the Warrant Agent for exercise of fewer
than all the Warrants represented thereby, the Corporation
shall execute, and the Warrant Agent shall countersign, as
provided in Section 1.02 or 1.03, as the case may be, and
deliver to the Holder of such Warrants by first class mail
at the expense of the Corporation a new Definitive Warrant
Certificate of like tenor representing all Warrants
remaining unexercised after such exercise and bearing a
number not contemporaneously outstanding.
[(f) The Corporation may, at its sole option,
elect to limit the aggregate number of Warrants for which
any Designated Exercise Date shall be the Exercise Date to a
number not less than ________________ (the "Maximum
Exercisable Number").
(i) The Corporation may, at its sole option,
notify the Warrant Agent in writing (including by
facsimile transmission) not later than [3:00 P.M.], New
York City time, on the Valuation Date with respect to
any Tendered Warrants (or, if such Valuation Date is
not a New York Business Day, on the next succeeding New
York Business Day), that the Corporation has elected to
exercise its option under this Section 2.02(f) to limit
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the number of such Tendered Warrants for which the
Exercise Date to which such Valuation Date relates
shall be the Designated Exercise Date for such Warrants
to a number (the "Elected Maximum Number") not smaller
than the Maximum Exercisable Number. If the Warrant
Agent shall not have received such notice by such time,
none of the following provisions in this Section
2.02(f) shall apply to such Tendered Warrants, such
Designated Exercise Date shall be the Exercise Date for
such Tendered Warrants, and all of such Tendered
Warrants shall be deemed to be "Exercised Warrants" for
purposes of this Agreement.
(ii) If the Warrant Agent shall have received the
notice contemplated by clause (i) above by the time
specified in such clause (i), then prior to
[5:00 P.M.], New York City time, on such Valuation Date
(or, if such Valuation Date is not a New York Business
Day, on the next succeeding New York Business Day), the
Warrant Agent shall select by lot from all such
Tendered Warrants, subject to clause (iii) below,
Tendered Warrants for which the Exercise Date shall be
such Designated Exercise Date in an aggregate number
equal to the Elected Maximum Number; provided that if,
as a result of such selection, any Owner or Holder, as
the case may be, would be deemed to have exercised less
than [(specify minimum exercise amount)] Warrants, then
the Warrant Agent shall first select additional
Tendered Warrants of such Owners or Holders so that no
such Owner or Holder shall be deemed to have exercised
fewer than [(specify minimum exercise amount)]
Warrants. Only the Tendered Warrants so selected shall
be deemed to be "Exercised Warrants" for purposes of
Section 2.02(c). The Tendered Warrants not so selected
shall be referred to herein as "Delayed Exercise
Warrants" and shall be subject to exercise as provided
in clause (iii) below.
(iii) For purposes of this Section 2.02, each
Delayed Exercise Warrant shall be deemed to have a new
Designated Exercise Date on the New York Business Day
next succeeding its original Designated Exercise Date,
and this Section 2.02 shall apply to such Delayed
Exercise Warrants as if one or more Exercise Notices
with respect to the Delayed Exercise Warrants had been
received by the Warrant Agent prior to [3:00 P.M.], New
York City time, on such New York Business Day, provided
that (x) any Delayed Exercise Warrant with respect to
which any such deemed Designated Exercise Date is on or
after the earlier of the Expiration Date and the
Delisting Date shall be subject to automatic exercise
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as provided in Section 2.03[, and (y) the Reference
Value for any Delayed Exercise Warrant covered by a
Conditional Exercise Notice shall in any event be
determined by reference to the original Designated
Exercise Date therefor (or, if such date is not an
Index Country Business Day, on the immediately
preceding Index Country Business Day)]; provided,
however, that, other than in the case of automatic
exercise [or cancellation], if the aggregate number of
such Delayed Exercise Warrants, together with any
additional Tendered Warrants for which the Designated
Exercise Date is such New York Business Day shall again
exceed the Maximum Exercisable Number, the provisions
of this Section 2.02(f) shall apply, mutatis mutandis,
to the exercise of such Delayed Exercise Warrants and
such additional Tendered Warrants, provided that such
Delayed Exercise Warrants shall be given priority over
such additional Tendered Warrants in the selection
pursuant to clause (ii) above, and among such Delayed
Exercise Warrants, priority in such selections shall be
given to Warrants in the order of their original
Designated Exercise Dates, with Warrants having the
same original Designated Exercise Date being selected
by lot as described in clause (ii) above.
(iv) In connection with any issuance by the
Corporation of additional Warrants under this
Agreement, the Corporation shall have the right, but
shall not be obligated, to increase the Maximum
Exercisable Number.]
(g) For purposes of this Agreement:
The "Cash Settlement Value" of any Warrant that is
exercised (whether exercised automatically or by
Exercise Notice) shall mean [_____ (specify fraction)]
of the U.S. dollar equivalent (rounded to the nearest
dollar) of the amount, if any, by which [(i) the Strike
Index (as defined below) exceeds (ii) the Spot Index on
the Valuation Date with respect to such Exercised
Warrant] [(i) the Spot Index on the Valuation Date with
respect to such Exercised Warrant exceeds (ii) the
Strike Index (as defined below)]; provided that if such
amount is less than zero, the Cash Settlement Value
shall be zero.
The "Strike Index" of a Warrant shall mean [Insert
amount or method for determining amount].
The "Spot Index" on any date shall mean [Insert
method for determining amount].
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The exchange rate (or manner of calculating such
rate) for conversion of the Cash Settlement Value, [the
Cancellation Amount,] the Strike Index, the Spot Index
and/or the value of Underlying Securities, as
applicable, into U.S. dollars shall be [(specify such
rate or manner of calculating such rate)] and shall be
determined by the Warrant Agent.
"U.S. dollars", "U.S.$" or "$" are references to
the currency of the United States of America.
"[Index currency] or "[_______________]" are
references to the currency of [(specify name of Index
country)].
(h) Any notice to be given to the Corporation by
the Warrant Agent pursuant to this Section 2.02 or
Section 2.03 shall be by telephone (promptly confirmed in
writing) or telecopy (receipt to be promptly confirmed by
telephone).
Section 2.03. Automatic Exercise of Warrants.
(a) [Unless previously canceled pursuant to Section 2.04,]
all Warrants with respect to which
(i) there has been no proper delivery of Warrants
to the Warrant Account, in the case of Book-Entry
Warrants, or of Definitive Warrant Certificates to the
Warrant Agent Office, in the case of Certificated
Warrants[, or no delivery of the Exercise Price as
provided in Section 2.01(b)] or no valid Exercise
Notice has been received by the Warrant Agent at or
prior to [3:00 P.M.], New York City time, on the
earlier to occur of (A) the Expiration Date for such
Warrants and (B) the last New York Business Day prior
to the effective date on which the Warrants are
delisted from, or permanently suspended from trading
on, the __________ Stock Exchange without being
accepted for listing on or prior to such New York
Business Day on another United States national
securities exchange (such New York Business Day, the
"Delisting Date"),
(ii) the Exercise Date has been postponed pursuant
to Section 2.02(f) to a date on or after the earlier of
the Expiration Date or the Delisting Date,
[or (iii) [list other events causing automatic
exercise of Warrants, if applicable]]
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<PAGE>
will be automatically exercised on such Expiration Date or
Delisting Date [or on the date on which (specify other
events leading to automatic exercise)] (any such date, a
"Deemed Exercise Date") without any requirement of notice of
exercise to the Warrant Agent. On the Deemed Exercise Date,
all the Warrants will be canceled and will represent only a
right to receive the Cash Settlement Value upon satisfaction
of the requirements set forth in Section 2.03(b). The
Valuation Date for such Warrants shall be the first Index
Country Business Day next succeeding such Deemed Exercise
Date.
(b) On the Valuation Date for the Warrants to be
automatically exercised in accordance with Section 2.03(a)
(or, if such Valuation Date is not a New York Business Day,
on the next succeeding New York Business Day), the Warrant
Agent shall (i) determine the Cash Settlement Value of such
Warrants; (ii) by [5:00 P.M.], New York City time, on such
Valuation Date (or, if such Valuation Date is not a New York
Business Day, on the next succeeding New York Business Day)
notify the Corporation (and such other parties (not to
exceed two) as the Corporation shall designate in writing)
of the Cash Settlement Value of such Warrants; and
(iii) advise the Corporation of such other matters relating
to the automatically exercised Warrants as the Corporation
shall reasonably request.
(c) At or before [3:00 P.M.], New York City time,
on the [eighth] New York Business Day following the
Valuation Date for any Warrants automatically exercised in
accordance with Section 2.03(a) (or, if such Valuation Date
is not a New York Business Day, on the [ninth] New York
Business Day after such Valuation Date) (such date, with
respect to such Warrants, the "Settlement Date"), the
Corporation shall make available to the Warrant Agent funds
in an amount equal to, and for the payment of, [(y)] the
aggregate Cash Settlement Value of such automatically
exercised Warrants [minus (y) the aggregate Exercise Price
with respect to such Warrants, provided that if such amount
is less than zero, no such funds shall be made available].
On the New York Business Day on which the Corporation has
made adequate funds available to the Warrant Agent at or
prior to [3:00 P.M.], New York City time, the Warrant Agent
shall make payment available (i) if the automatically
exercised Warrants are Book-Entry Warrants, in the form of a
wire transfer to the appropriate Depository Participant
after [3:00 P.M.], New York City time, but prior to the
close of business, on such day, such payment to be in the
amount of [(x)] the aggregate Cash Settlement Value of the
Warrants held at the time of automatic exercise by such
Depository Participant [minus (y) the aggregate Exercise
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Price with respect to such Warrants, provided that if such
amount is less than zero, then no such payment shall be
made], and (ii) if the automatically exercised Warrants are
Certificated Warrants, in the form of one or more cashier's
checks or official bank checks to each appropriate Holder
after [3:00 P.M.], New York City time, but prior to the
close of business, on such day, such payment to be in the
amount of [(x)] the Cash Settlement Value of the Warrants
registered in the name of such Holder on the date of
automatic exercise [minus (y) the aggregate Exercise Price
with respect to such Warrants, provided that if such amount
is less than zero, then no such payment shall be made];
provided, however, that the Warrant Agent shall withhold any
such payment in respect of any Warrant until the conditions
set forth in Section 2.03(d) have been satisfied with
respect to such Warrant. In the case of payments by the
Warrant Agent to a Depository Participant, the Warrant Agent
shall have no responsibility for the crediting by such
Depository Participant of the Cash Settlement Value of such
Warrants to the appropriate Owners.
(d) The Warrant Agent shall withhold payment of
the Cash Settlement Value with respect to any automatically
exercised Warrant until:
(i) if such Warrant is a Book-Entry Warrant,
[(A)] such Warrant is delivered on the records of the
Depository free to the Warrant Account [and (B) the
Warrant Agent receives at the Warrant Agent Office a
written certification substantially in the form of
Exhibit E-1 hereto, dated no earlier than the Deemed
Exercise Date, executed by a Depository Participant
acting on behalf of the Owner of such Warrant, to the
effect that such Owner is not an Index Country
Resident]; and
(ii) if such Warrant is a Certificated Warrant,
[(A)] the Definitive Warrant Certificate representing
such Warrant is surrendered to the Warrant Agent at the
Warrant Agent Office, [and (B) the Warrant Agent
receives at the Warrant Agent Office a certification in
the form of Exhibit E-2 hereto, dated no earlier than
the Deemed Expiration Date, to the effect that the
Holder of such Definitive Warrant Certificate is not an
Index Country Resident].
(e) When payment has been made in respect of all
Warrants represented by a Warrant Certificate, the Warrant
Agent shall, promptly upon receipt of such Warrant
Certificate, cancel such Warrant Certificate and deliver it
to the Corporation.
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[Section 2.04. Cancellation of Warrants.
(a) [insert conditions and effects of cancellation, if
applicable].]
(b) [The "Cancellation Amount" of a Warrant shall
mean [Insert amount or method for determining amount].]
Section 2.05. Discontinuance or Modification of
Index. (a) If the Index is not calculated and announced by
[name of Index publisher] (the "Index Publisher") on any
Valuation Date but is calculated and publicly announced by
another Person not affiliated with the Corporation and
acceptable to the Corporation (the "Third Party"), the
applicable Cash Settlement Value [or Cancellation Amount, as
the case may be,] shall be calculated by reference to the
value of the closing quotation for the Index so calculated
and announced by the Third Party.
(b) If, prior to any Valuation Date, the Index
Publisher or the Third Party shall make a material change in
the formula for or the method of calculating the Index, the
Corporation shall promptly appoint an investment or
commercial bank of international standing that is not an
affiliate of the Corporation (an "Independent Expert") who
shall make such calculations as may be required to determine
the applicable Cash Settlement Value [or Cancellation
Amount, as the case may be,] using the formula and method of
calculating the Index as in effect prior to such change or
modification.
(c) If, on any Valuation Date, neither the Index
Publisher nor any Third Party is calculating and
disseminating the Index and neither is providing any
successor index, the Corporation shall promptly appoint an
Independent Expert who shall make such calculations as it
determines may be required to determine the applicable Cash
Settlement Value [or Cancellation Amount, as the case may
be,] using the formula and method of calculating the Index
as in effect on the date the Index was last so calculated.
(d) If any of the events referred to in
Sections 2.05(a) through (c) shall occur, the Corporation
shall promptly make available information regarding the
composition, method of calculation and current level of the
Index or successor index upon written request to the
Corporation's offices at 280 Park Avenue, New York, New York
10017, Attention: _________________. In addition, the
Corporation shall undertake reasonable efforts to ensure
that such information is publicly available. If the Index
Publisher shall elect to suspend or discontinue calculating
or announcing the Index, the Corporation shall so notify
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Holders by giving notice to the Holders as their names and
addresses appear in the Warrant Register.
Section 2.06. Designation of Agent for Receipt of
Notice. The Corporation may from time to time designate in
writing to the Warrant Agent a single designee for receipt
of all notices required to be given by the Warrant Agent to
the Corporation pursuant to this Article II and all such
notices thereafter shall be given in the manner herein
provided by the Warrant Agent to such designee and each such
notice shall be as effective as if given directly to the
Corporation.
[Section 2.07. Extraordinary Events. [(Specify
conditions and effects of extraordinary events, if
applicable)].]
[Section 2.08. Temporary Suspension of the Right
to Exercise the Warrants. [(Specify conditions and method
of temporary suspension of right to exercise, if
applicable)].]
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders. (a) The
Corporation, the Warrant Agent and any agent of the
Corporation or the Warrant Agent may deem and treat the
Person in whose name each Global Warrant Certificate shall
be registered in the records of the Warrant Agent as the
absolute Holder of all right, title and interest in such
Global Warrant Certificate (notwithstanding any notation of
ownership or other writing thereon) for all purposes
hereunder and as the Person entitled to exercise the rights
represented by the Warrants evidenced thereby, whether or
not such Warrants shall be exercised or deemed to be
exercised, and neither the Corporation nor the Warrant
Agent, nor any agent of the Corporation or the Warrant Agent
shall be affected by any notice to the contrary, except that
the Warrant Agent and the Corporation shall be entitled to
rely on and act pursuant to instructions of Depository
Participants as contemplated by Article II of this
Agreement.
(b) Prior to due presentment of a Definitive
Warrant Certificate for registration of transfer, the
Corporation, the Warrant Agent and any agent of the
Corporation or the Warrant Agent may treat the Person in
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whose name such Definitive Warrant Certificate is registered
as the absolute Holder of all right, title and interest in
such Definitive Warrant Certificate (notwithstanding any
notation of ownership or other writing thereon) for all
purposes hereunder and as the Person entitled to exercise
the rights represented by the Warrants evidenced thereby,
whether or not such Warrants shall be exercised or deemed to
be exercised, and neither the Corporation, the Warrant Agent
nor any agent of the Corporation or the Warrant Agent shall
be affected by notice to the contrary.
Section 3.02. Holder or Owner of Warrant May
Enforce Rights. Notwithstanding any other provision of this
Agreement, any Owner, in the case of Book-Entry Warrants,
and any Holder, in the case of Certificated Warrants,
without the consent of the Warrant Agent or the Owner or
Holder of any other Warrant, may, in and for such Owner's or
Holder's own behalf, and for such Owner's or Holder's own
benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Corporation suitable to
enforce, or otherwise in respect of, such Owner's or
Holder's right to exercise, and to receive payment for, such
Owner's or Holder's Warrants as provided in such Warrants
and in this Agreement.
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent. The Corporation
hereby appoints [name of Warrant Agent] as the Warrant Agent
of the Corporation in respect of the Warrants upon the terms
and subject to the conditions set forth herein and in the
Warrants, and [name of Warrant Agent] hereby accepts such
appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it herein and in the
Warrants and such further powers and authority acceptable to
it to act on behalf of the Corporation as the Corporation
may hereafter grant to or confer upon it. All of the terms
and provisions with respect to such powers and authority
contained in the Warrants are subject to and governed by the
terms and provisions hereof.
Section 4.02. Certain Duties of the Warrant
Agent. (a) Except during the continuation of a default in
the performance by the Corporation of its obligations in
respect of the Warrants, the Warrant Agent undertakes to
perform such duties and only such duties as are specifically
set forth in this Agreement, and no implied covenants or
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obligations shall be read into this Agreement against the
Warrant Agent.
(b) No provision of this Agreement shall require
the Warrant Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it.
Section 4.03. Conditions of Warrant Agent's
Obligations. The Warrant Agent accepts its obligations set
forth herein upon and subject to the terms and conditions
hereof and of the Warrants, including the following, to all
of which the Corporation agrees and to all of which the
rights hereunder of the Owners and Holders from time to time
of the Warrants shall be subject:
(a) The Corporation agrees promptly to pay the
Warrant Agent the compensation to be agreed upon with
the Corporation for all services rendered by the
Warrant Agent and to reimburse the Warrant Agent for
its reasonable out-of-pocket expenses, disbursements
and advances (including reasonable attorneys' fees and
expenses and reasonable compensation, expenses and
disbursements of its agents) incurred by the Warrant
Agent without negligence, bad faith or breach of this
Agreement on its part in connection with the services
rendered by it hereunder. The Corporation also agrees
to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense
(including reasonable attorneys' fees and expenses)
incurred without negligence, bad faith or breach of
this Agreement on the part of the Warrant Agent,
arising out of or in connection with its acting as such
Warrant Agent hereunder or with respect to the
Warrants, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of
its powers or duties hereunder. The obligations of the
Corporation under this subsection (a) shall survive the
exercise of the Warrants and the resignation or removal
of the Warrant Agent.
(b) The Warrant Agent shall be protected and
shall incur no liability for or in respect of any
action taken or omitted or thing suffered by it in
reliance upon any Warrant, resolution, opinion, report,
request, notice, direction, consent, certificate,
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affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have
been presented or signed by the proper parties,
provided that any request or direction of the
Corporation shall be sufficiently evidenced by a
Corporation Order delivered to the Warrant Agent, and
any resolution of the Board of Directors shall be
sufficiently evidenced by a copy of the resolution
certified by the Secretary or an Assistant Secretary to
have been duly adopted by the Board of Directors of the
Corporation, or by a committee of such Board of
Directors or an officer of the Corporation appointed by
the Board of Directors of the Corporation for such
purpose, and to be in full force and effect on the date
of such certification and delivered to the Warrant
Agent (any such resolution, a "Board Resolution").
(c) The Warrant Agent may consult with counsel
satisfactory to it, which may include counsel to the
Corporation, and the written opinion of such counsel
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such
written opinion.
(d) The Warrant Agent shall not be bound to make
any investigation into the facts or matters stated in
any Corporation Order or Board Resolution, but the
Warrant Agent, in its discretion, may make such further
inquiry or investigation into such facts or matters as
it may see fit.
(e) The Warrant Agent, and any of its officers,
directors and employees, in its individual or any other
capacity, may become the Owner or Holder of, or acquire
any interest in, any Warrants or other obligations of
the Corporation, with the same rights that it or they
would have if it were not the Warrant Agent hereunder,
and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or
other transaction with the Corporation and may act on,
or as depositary, trustee or agent for, any committee
or body of Owners or Holders of Warrants or other
obligations of the Corporation as freely as if it were
not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any
liability for interest on any monies at any time
received by it pursuant to any of the provisions of
this Agreement or of the Warrants except as otherwise
agreed with the Corporation, nor shall it be obligated
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to segregate such monies from other monies held by it,
except as required by law.
(g) The Warrant Agent shall not be under any
liability with respect to the validity or sufficiency
of this Agreement or the execution and delivery hereof
(except the due execution and delivery hereof by the
Warrant Agent) or with respect to the validity or
execution of the Warrants or the Warrant Certificates
(except the countersignature thereof).
(h) The recitals contained herein and in the
Warrants (except as to the Warrant Agent's
countersignature thereon) shall be taken as the
statements of the Corporation, and the Warrant Agent
assumes no responsibility for the correctness thereof.
(i) The Warrant Agent shall not be accountable or
under any duty or responsibility for the use by the
Corporation of any of the Warrant Certificates
countersigned by the Warrant Agent and delivered by it
to the Corporation pursuant to this Agreement or for
the application by the Corporation of any proceeds.
(j) The Warrant Agent shall have no duty or
responsibility in case of any default by the
Corporation in the performance of its covenants or
agreements contained herein or in the Warrants or in
the case of the receipt of any written demand from an
Owner or Holder of a Warrant with respect to such
default, including, without limitation, any duty or
responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided
in Section 8.03, to make any demand upon the
Corporation.
(k) In acting under this Agreement and in
connection with the Warrants, the Warrant Agent is
acting solely as the agent of the Corporation and does
not assume any obligation or relationship of agency or
trust for or with any of the Owners or Holders of the
Warrants.
Section 4.04. Compliance With Applicable Laws.
The Warrant Agent agrees to comply with all applicable
federal and state laws imposing obligations on it in respect
of the services rendered by it under this Agreement and in
connection with the Warrants, including (but not limited to)
the provisions of United States federal income tax laws
regarding information reporting and backup withholding. The
Warrant Agent expressly assumes all liability for its
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failure to comply with any such laws imposing obligations on
it, including (but not limited to) any liability for its
failure to comply with any applicable provisions of United
States federal income tax laws regarding information
reporting and backup withholding.
Section 4.05. Corporate Warrant Agent Required;
Eligibility. The Corporation agrees, for the benefit of the
Owners or Holders from time to time of the Warrants, that
there shall at all times be a Warrant Agent hereunder until
all of the Warrants have been exercised or are no longer
exercisable, which shall be a banking institution organized
under the laws of the United States of America or one of the
states thereof and having an office or an agent's office
south of Chambers Street in the Borough of Manhattan, The
City of New York.
Section 4.06. Resignation and Removal;
Appointment of Successor. (a) No resignation or removal of
the Warrant Agent and no appointment of a successor Warrant
Agent pursuant to this Section 4.06 shall become effective
until the acceptance of appointment by the successor Warrant
Agent under Section 4.07.
(b) The Warrant Agent may resign at any time by
giving written notice of such resignation to the Corporation
specifying such resignation and the date on which it desires
such resignation to become effective, provided that, without
the consent of the Corporation, such date shall not be less
than 90 days after the date on which such notice is given.
If an instrument of acceptance by a successor Warrant Agent
shall not have been delivered to the Warrant Agent within 90
days after the giving of such notice of resignation, the
resigning Warrant Agent may petition any court of competent
jurisdiction for the appointment of a successor Warrant
Agent with respect to the Warrants.
(c) The Corporation may remove the Warrant Agent
at any time by giving written notice thereof to the Warrant
Agent specifying such removal and the date on which the
Corporation desires such removal to become effective.
(d) If at any time:
(i) the Warrant Agent shall cease to be eligible
to act as such under Section 4.05 and shall fail to
resign after the Corporation shall have delivered a
written request therefor, or
(ii) the Warrant Agent shall become incapable of
acting as such, or shall be adjudged a bankrupt or
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insolvent, or shall file a voluntary petition in
bankruptcy or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver
or custodian of all or any substantial part of its
property, or shall admit in writing its inability to
pay or meet its debts as they mature, or a receiver or
custodian of it or of all or any substantial part of
its property shall be appointed, or an order of any
court shall be entered approving any petition filed by
or against it under the provisions of any applicable
bankruptcy or similar law, or any public officer shall
take charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation,
conservation or liquidation, or
(iii) the Corporation shall elect to remove the
Warrant Agent, provided that no default shall then
exist with respect to the Warrants,
then in any such case, the Corporation by a Board Resolution
may remove the Warrant Agent with respect to all the
Warrants.
(e) If the Warrant Agent shall resign or be
removed, or if a vacancy shall occur in the office of the
Warrant Agent for any other reason, the Corporation, by a
Board Resolution, shall promptly appoint a successor Warrant
Agent with respect to the Warrants, it being understood that
at any time there shall be only one Warrant Agent with
respect to the Warrants.
(f) The Corporation shall give notice to the
Owners or Holders of the Warrants of each resignation and
each removal of the Warrant Agent and each appointment of a
successor Warrant Agent with respect to the Warrants in
accordance with Section 8.05. Each such notice shall
include the name of the successor Warrant Agent and the
address of its Warrant Agent Office.
Section 4.07. Acceptance of Appointment by
Successor. (a) If a successor Warrant Agent is appointed
hereunder, such successor Warrant Agent so appointed shall
execute, acknowledge and deliver to the Corporation and to
the retiring Warrant Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Warrant Agent shall become effective and such
successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the rights, powers
and duties of the retiring Warrant Agent; provided, however,
that on the request of the Corporation or the successor
Warrant Agent, such retiring Warrant Agent shall, upon
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payment of its charges and disbursements then unpaid,
execute and deliver an instrument transferring to such
successor Warrant Agent all the rights and powers of the
retiring Warrant Agent and shall duly assign, transfer and
deliver to such successor Warrant Agent all property and
money held by such retiring Warrant Agent hereunder.
(b) Upon the request of any such successor
Warrant Agent, the Corporation shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Warrant Agent all such rights
and powers referred to in Section 4.07(a).
(c) No successor Warrant Agent shall accept its
appointment, and no such acceptance shall be effective,
unless at the time of such acceptance such successor Warrant
Agent shall be qualified and eligible under this Article IV.
Section 4.08. Merger, Conversion, Consolidation
or Succession to Business. Any corporation into which the
Warrant Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Warrant
Agent shall be a party, or any corporation succeeding to all
or substantially all of the business of the Warrant Agent,
shall be the successor of the Warrant Agent hereunder,
without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that
such corporation shall be otherwise qualified and eligible
under this Article IV. If any Warrant Certificates shall
have been countersigned, but not delivered, by the Warrant
Agent then in office, any successor by merger, conversion or
consolidation to such countersigning Warrant Agent may adopt
such countersignature and deliver the Warrant Certificates
so countersigned with the same effect as if such successor
Warrant Agent had itself countersigned such Warrant
Certificates.
ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the
Corporation and Sales, Leases and Conveyances Permitted
Subject to Certain Conditions. (a) The Corporation may
consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into
any other corporation, provided that, in any such case,
(i) either the Corporation shall be the continuing
corporation, or the successor corporation shall be a
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corporation organized and existing under the laws of the
United States of America or a state thereof and such
successor corporation shall expressly assume, by
Supplemental Agreement (as defined in Section 6.01(a))
satisfactory to the Warrant Agent and executed and delivered
to the Warrant Agent by such corporation, the due and
punctual payment of the Cash Settlement Value [or
Cancellation Amount, as the case may be,] with respect to
all unexercised Warrants, according to their tenor, and the
due and punctual performance and observance of all of the
covenants and conditions of this Agreement to be performed
by the Corporation, and (ii) the Corporation or such
successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such
sale, lease or conveyance, be in default in the performance
of any such covenant or condition. In case of any such
consolidation, merger, sale, lease or conveyance and upon
such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the
Corporation, with the same effect as if it had been named
herein as such, and the predecessor Corporation, except in
the event of a lease, shall be relieved of any further
obligation hereunder or under the Warrants. Such successor
corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Corporation,
new Global Warrant Certificates or Definitive Warrant
Certificates, as the case may be, representing Warrants not
theretofore exercised, in exchange and substitution for the
Global Warrant Certificates and Definitive Warrant
Certificates theretofore issued; and upon the order of such
successor corporation, instead of the Corporation, and
subject to all the terms, conditions and limitations in this
Agreement prescribed, the Warrant Agent shall countersign
and shall deliver the new Global Warrant Certificates or
Definitive Warrant Certificates, as the case may be, that
such successor corporation shall have caused to be signed
and delivered to the Warrant Agent for countersignature.
Such Global Warrant Certificates or Definitive Warrant
Certificates, as the case may be, shall in all respects have
the same legal rank and benefit under this Agreement as the
Warrant Certificates theretofore issued in accordance with
the terms of this Agreement as though such new Warrant
Certificates had been issued at the date of issue of the
Warrant Certificates for which they are exchanged. In case
of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in
substance) may be made in the new Warrant Certificates as
may be appropriate.
(b) The Warrant Agent may receive a written
opinion of counsel (who may be an employee of the
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Corporation or other counsel acceptable to the Warrant
Agent) (an "Opinion of Counsel") as conclusive evidence that
any such consolidation, merger, sale, lease or conveyance,
and any such assumption, complies with the provisions of
this Article V.
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Index Warrant
Agreement. (a) This Agreement and the Warrants may be
amended by the Corporation, when authorized by a Board
Resolution, and the Warrant Agent (which amendment shall
take the form of a supplemental index warrant agreement)
(each, a "Supplemental Agreement")), without the consent of
the Owners or Holders of the Warrants, for the purpose of:
(i) curing any ambiguity or of curing, correcting
or supplementing any defective or inconsistent
provision contained herein or therein, or of making any
other provisions with respect to matters or questions
arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement or
the Warrants; or
(ii) evidencing the succession of another
corporation to the Corporation and the assumption by
any such successor of the covenants of the Corporation
contained herein and in the Warrants in accordance with
Article V; or
(iii) appointing a successor Depository in
accordance with Section 1.01(e); or
(iv) evidencing and providing for the acceptance
of appointment hereunder by a successor Warrant Agent
in accordance with Section 4.07; or
(v) adding to the covenants of the Corporation
for the benefit of the Owners or Holders of the
Warrants or surrendering any right or power herein
conferred upon the Corporation; or
(vi) issuing Warrants in the form of Definitive
Warrant Certificates in accordance with Section
1.01(c); or
(vii) amending this Agreement and the Warrants in
any manner that the Corporation may deem to be
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necessary or desirable and that will not materially and
adversely affect the interests of the Owners or Holders
of the Warrants.
(b) The Corporation and the Warrant Agent may
amend this Agreement and the Warrants (which amendment shall
take the form of a Supplemental Agreement), with the consent
of the Owners or Holders, as the case may be, of not fewer
than 66-2/3% in number of the unexercised Warrants affected
by such amendment, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner
the rights of the Owners or Holders of the Warrants under
this Agreement; provided, however, that, without the consent
of each Owner or Holder affected thereby, no such amendment
may be made that changes the determination of the Cash
Settlement Value [or Cancellation Amount, as the case may
be,] of the Warrants (or any aspects of such determination)
so as to reduce the amount receivable upon exercise or
deemed exercise of the Warrants, shortens the period of time
during which the Warrants may be exercised, or otherwise
materially and adversely affects the exercise rights of the
Owners or Holders, as the case may be, or reduces the number
of unexercised Warrants the consent of the Owners or Holders
of which is required for amendment of this Agreement or the
Warrants. The Corporation and the Warrant Agent shall be
entitled to rely upon certification in form satisfactory to
each of them that any requisite consent has been obtained
from the Owners of Warrants represented by a Global Warrant
Certificate. Such certification may be provided by
Depository Participants acting on behalf of such Owners of
Warrants, provided that any such certification is
accompanied by a certification from the Depository as to the
Global Warrant Certificate holdings of such Depository
Participants.
Section 6.02. Form of Approval of Supplemental
Agreements by Owners or Holders. It shall not be necessary
for the Owners or Holders of the Warrants to approve the
particular form of any proposed Supplemental Agreement, but
it shall be sufficient if the Owners or Holders, as the case
may be, shall approve the substance of the Supplemental
Agreement.
Section 6.03. Effect of Supplemental Agreements.
Upon the execution of any Supplemental Agreement under this
Article, this Agreement shall be modified in accordance
therewith, such Supplemental Agreement shall form a part of
this Agreement for all purposes, and, subject to the proviso
to the first sentence of Section 6.01(b), every Owner or
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Holder of Warrants theretofore or thereafter countersigned
and delivered hereunder shall be bound thereby.
Section 6.04. Reference in Warrants to
Supplemental Agreements. Warrants countersigned and
delivered after the execution of any Supplemental Agreement
pursuant to this Article may, and shall if required by the
Warrant Agent, bear a notation in form approved by the
Warrant Agent as to any matter provided for in such
Supplemental Agreement. If the Corporation shall so
determine, new Warrants so modified as to conform, in the
opinion of the Warrant Agent and the Corporation, to any
such Supplemental Agreement may be prepared and executed by
the Corporation and countersigned and delivered by the
Warrant Agent in exchange for unexercised Warrants.
ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Listing of Warrants on National
Securities Exchange. (a) The Corporation covenants, for
the benefit of the Owners or Holders of the Warrants, as the
case may be, that (i) it will seek to obtain the listing of
the Warrants on [name of national securities exchange] and
(ii) until the Expiration Date, it will not seek the
delisting of the Warrants from, or permanent suspension of
their trading on, [name of national securities exchange]
unless prior to such delisting or suspension the Warrants
shall have been listed, and shall be trading, on another
national securities exchange.
(b) The Corporation shall advise the Warrant
Agent of the date of any expected delisting or permanent
suspension of trading of the Warrants as soon as is
practicable and will immediately inform the Warrant Agent
after the Corporation has received notice that such
delisting or suspension has occurred, but in no event shall
notice of such delisting or suspension be given to the
Warrant Agent later than [3:00 P.M.], New York City time, on
the fifth New York Business Day preceding the date that such
delisting or suspension occurs.
(c) The Corporation shall notify the Owners or
Holders of the Warrants in accordance with Section 8.05 as
promptly as is practicable of any expected delisting or
suspension of trading of the Warrants.
Section 7.02. Governmental Approvals. The
Corporation shall from time to time take all reasonable
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action necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and
authorities and the [name of national securities exchange],
and shall make all filings under United States federal and
state laws, that may be or become requisite in connection
with the issuance, sale, trading, transfer, delivery or
exercise of the Warrants, each Global Warrant Certificate
and each Definitive Warrant Certificate.
Section 7.03. Payment of Cash Settlement Value
[or Cancellation Amount]. The Corporation agrees, for the
benefit of the Owners or Holders of the Warrants, that it
will duly and punctually pay the Cash Settlement Value [or
Cancellation Amount, as the case may be,] on each Warrant in
accordance with the terms of the Warrants and this
Agreement, and that the right of each such Owner or Holder,
as the case may be, to receive payment of the Cash
Settlement Amount [or Cancellation Amount, as the case may
be,] on such Warrant when such amount is due and payable
shall be absolute and unconditional.
Section 7.04. Maintenance of Office or Agency;
Unclaimed Moneys. (a) The Corporation shall maintain an
office and agency at which the Warrants may be presented or
surrendered for exercise or registration of transfer or
exchange or cancellation and where notices and demands to or
upon the Corporation in respect of the Warrants and this
Agreement may be served, which office and agency shall be
the same as the location of the Warrant Agent Office, and
the Corporation hereby appoints the Warrant Agent as its
agent to receive all such presentations, surrenders, notices
and demands.
(b) The Corporation shall, on or prior to each
due date of the Cash Settlement Value [or Cancellation
Amount, as the case may be,] on any Warrant, deposit with
the Warrant Agent a sum sufficient to pay the Cash
Settlement Value [or Cancellation Amount, as the case may
be,] so becoming due, such sum to be held for the benefit of
the Persons entitled to such Cash Settlement Value [or
Cancellation Amount, as the case may be].
(c) Any money deposited with the Warrant Agent
for the payment of the Cash Settlement Value [or
Cancellation Amount, as the case may be,] on any Warrant and
remaining unclaimed for three years after such Cash
Settlement Value [or Cancellation Amount, as the case may
be,] has become due and payable, shall be paid to the
Corporation, at the request of the Corporation, and the
Person entitled to such money shall thereafter, as an
unsecured general creditor, look only to the Corporation for
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payment thereof, and all liability of the Warrant Agent with
respect to such money shall thereupon cease; provided,
however, that the Warrant Agent, before being required to
make any such repayment, may at the expense of the
Corporation, cause notice to be given in accordance with
Section 8.05 to the Person entitled to such money that such
money remains unclaimed and that, after a date specified
therein, which shall be not less than 30 days from the date
of such notice, any unclaimed balance of such money then
remaining will be repaid to the Corporation.
Section 7.05. Corporate Existence. Subject to
Article V, the Corporation shall do or cause to be done all
things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the
Corporation shall not be required to preserve any right or
franchise if its Board of Directors or a committee thereof
shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Corporation
and that the loss thereof is not disadvantageous in any
material respect to the Owners or Holders of the Warrants,
as the case may be.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants.
The Corporation may, from time to time, issue additional
Warrants under this Agreement. All Warrants issued
hereunder, from and after the date they are issued, shall be
identical.
Section 8.02. Payment of Taxes. The Corporation
shall pay all documentary stamp taxes attributable to the
initial issuance of Warrants; provided, however, that the
Corporation shall not be required to pay any tax or other
governmental charge that may be payable in respect of any
transfer involving any beneficial or record interest in or
ownership interest of any Warrants.
Section 8.03. Notices and Demands to the
Corporation and Warrant Agent. If the Warrant Agent shall
receive any notice or demand addressed to the Corporation by
any Owner or Holder pursuant to the provisions of the
Warrants, the Warrant Agent shall promptly forward such
notice or demand to the Corporation.
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Section 8.04. Addresses for Notices. Any
communications from the Corporation to the Warrant Agent
with respect to this Agreement shall be addressed to [name
of Warrant Agent], [address] (facsimile: (___) ___-____)
(telephone: (___) ___-____), Attention: [Corporate Trust
Department]; any communications from the Warrant Agent to
the Corporation with respect to this Agreement shall be
addressed to Bankers Trust New York Corporation, 280 Park
Avenue, New York, New York 10017 (facsimile:
(212) ___-____) (telephone: (212) ___-____), Attention:
[________________] (or, in either case, at such other
address as shall be specified in writing to the other by the
Warrant Agent or the Corporation, as the case may be).
Section 8.05. Notices to Owners and Holders. The
Corporation or the Warrant Agent shall give any notice to be
given to the Owners of Book-Entry Warrants by providing the
Depository with a form of notice to be distributed by the
Depository to Depository Participants in accordance with the
customs and practices of the Depository. The Corporation or
the Warrant Agent shall give notice to the Holders of
Certificated Warrants by mailing written notice by first
class mail, postage prepaid, to such Holders as their names
and addresses appear in the Warrant Register.
SECTION 8.06. GOVERNING LAW. THIS AGREEMENT AND
EACH WARRANT ISSUED HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 8.07. Benefits of Index Warrant
Agreement. Nothing in this Agreement or in the Warrants
expressed or implied and nothing that may be inferred from
any of the provisions hereof or thereof is intended, or
shall be construed, to confer upon, or give to, any Person
other than the Corporation, the Warrant Agent and their
respective successors and assigns, and the Owners or Holders
of the Warrants, as the case may be, any right, remedy or
claim under or by reason of this Agreement or the Warrants
or of any covenant, condition, stipulation, promise or
agreement hereof or thereof, and all covenants, conditions,
stipulations, promises and agreements contained in this
Agreement or in the Warrants shall be for the sole and
exclusive benefit of the Corporation and the Warrant Agent
and their respective successors and assigns and of the
Owners or Holders of the Warrants, as the case may be.
Section 8.08. Successors and Assigns. All
covenants and agreements in this Agreement by the
Corporation shall bind its successors and assigns, whether
so expressed or not.
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Section 8.09. Index Warrant Agreement and
Warrants Solely Corporate Obligations. No recourse for the
payment of the Cash Settlement Value [or Cancellation
Amount, as the case may be,] of any Warrant or for any claim
based on any Warrant or this Agreement shall be had against
any director or officer or stockholder, past, present or
future, of the Corporation. Any such claim against any such
Person is expressly waived as a condition of, and as
consideration for, the execution and delivery of this
Agreement and the issue of the Warrants.
Section 8.10. Severability. If any provision in
this Agreement or in the Warrants shall be invalid, illegal,
or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions, or of such
provisions in any other jurisdiction, shall not in any way
be affected or impaired thereby.
Section 8.11. Headings. The descriptive headings
of the several Articles and Sections and the Table of
Contents of this Agreement are for convenience only and
shall not control or affect the meaning or construction of
any of the provisions hereof.
Section 8.12. Counterparts. This Agreement may
be executed by the parties hereto in any number of
counterparts, each of which when so executed and delivered
shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 8.13. Inspection of Index Warrant
Agreement. A copy of this Agreement shall be available at
all reasonable times at the Warrant Agent Office for
inspection by the Owners or Holders of the Warrants, as the
case may be, the Depository Participants and the Indirect
Participants. In the case of Certificated Warrants, the
Warrant Agent may require the Holder of such Warrant to
submit such Holder's Warrant Certificate for inspection by
the Warrant Agent.
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IN WITNESS WHEREOF, this Index Warrant Agreement
has been duly executed by the parties hereto as of the day
and year first above written.
BANKERS TRUST NEW YORK
CORPORATION
By:___________________________
Name:
Title:
[SEAL]
Attest:
___________________________
[Assistant] Secretary
[NAME OF WARRANT AGENT], as
Warrant Agent
By:___________________________
Name:
Title:
[SEAL]
Attest:
_____________________________
[Assistant Secretary]
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EXHIBIT A
[WARRANTS EVIDENCED BY THIS WARRANT CERTIFICATE CANNOT
BE EXERCISED PRIOR TO ________ __, 199__.]
[NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE WARRANT AGENT HAS RECEIVED
THE CERTIFICATION DESCRIBED IN THE INDEX
WARRANT AGREEMENT]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER [3:00 P.M.], NEW YORK CITY TIME,
ON ________ __, 199__
No. _________ CUSIP No. ____________
GLOBAL WARRANT CERTIFICATE
representing
________ [Name of Index] Index [Put/Call] Warrants
Expiring ________ __, 199__
BANKERS TRUST NEW YORK CORPORATION
This certifies that [______________] or registered
assigns is the registered holder of [insert number initially
issued] [insert name of Index] Index [Put/Call] Warrants
(the "Warrants"), or such lesser amount as is indicated in
the records of [name of Warrant Agent], as Warrant Agent.
Each Warrant entitles the [beneficial owner thereof (an
"Owner")] [registered holder thereof (a "Holder")], subject
to the provisions contained herein and in the Index Warrant
Agreement referred to below, to receive from Bankers Trust
New York Corporation, a New York corporation (the
"Corporation"), the Cash Settlement Value (as defined below)
[or Cancellation Amount (as defined below), as the case may
be,] thereof in [U.S. dollars (specify other currency if
applicable)], as further described below. [No exercise
price shall be payable by any Holder or Owner in connection
with the exercise of any Warrant.] [The exercise price for
each Warrant shall be $_____ and shall be payable in [U.S.
dollars (specify other currency if applicable)] (the
"Exercise Price").] In no event shall any [Owner] [Holder]
be entitled to any interest on the Cash Settlement Value [or
Cancellation Amount] (unless the Corporation shall default
in the payment of such Cash Settlement Value).
Subject to the terms of the Index Warrant
Agreement, each Warrant may be exercised or deemed to be
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exercised in whole but not in part on any New York Business
Day (as defined below) from [the date of issuance (specify
other date if applicable)] until [3:00 P.M.], New York City
time, on the earlie[st] of (i) [_________ (specify date upon
which right to exercise Warrants expires)] or, if such date
is not a New York Business Day, on the next succeeding New
York Business Day (the "Expiration Date"), [or] (ii) the
date of automatic exercise [or (iii) the date of
cancellation], as further described below and as provided in
the Index Warrant Agreement. Except in the case of
automatic exercise or any exercise on the Expiration Date,
not fewer than [(specify minimum exercise amount)] [nor more
than [(specify maximum exercise amount)] Warrants may be
exercised by or on behalf of any one [Owner] [Holder] at any
one time. References herein to "U.S. dollars", "U.S.$" or
"$" are references to the currency of the United States of
America. References to "[(insert name of Index currency)]"
or "[_______]" are references to the currency of [name of
Index country]. As used herein, the term "New York Business
Day" means any day other than a Saturday or Sunday or a day
on which the New York Stock Exchange or the American Stock
Exchange [or (list any other relevant securities exchanges)]
is not open for securities trading or banking institutions
generally in The City of New York are authorized or required
by law or executive order to close; "Index Country Business
Day" means any day other than (i) a Saturday or a Sunday or
a day on which banking institutions generally in [(specify
name of Index country)] are authorized or required by law or
executive order to close or (ii) a day on which the [names
of relevant stock exchanges] are not open for business[; and
"Index Country Resident" means a resident of, or any
corporation or other Person organized under the laws of
[(specify name of Index country)], its territories, its
possessions or other areas subject to its jurisdiction].
This [Global] [Definitive] Warrant Certificate is
issued under and in accordance with the Index Warrant
Agreement, dated as of ________ __, 199__ (the "Index
Warrant Agreement"), between the Corporation and the Warrant
Agent, and is subject to the terms and provisions contained
in the Index Warrant Agreement, to all of which terms and
provisions all [Owners] [Holders] of the Warrants
represented by this [Global] [Definitive] Warrant
Certificate [and the Holder of this Global Warrant
Certificate] consent by acceptance hereof [by the Depository
(as defined below)]. Copies of the Index Warrant Agreement
are on file at the Warrant Agent Office at ______________,
New York, New York, _____, Attention: Corporate Trust
Department, or at such other office as may be specified in a
notice given to the [Owners] [Holders] of the Warrants.
[Except as provided in the Index Warrant Agreement, Owners
A-2
<PAGE>
will not be entitled to receive definitive certificates
evidencing their Warrants. Warrant holdings will be held
through a depository selected by the Corporation, which
initially is [The Depository Trust Company], or its agent
(the "Depository", which term, as used herein, includes any
successor depository selected by the Corporation) as further
provided in the Index Warrant Agreement.]
Capitalized terms included herein but not defined
herein have the meanings assigned to them in the Index
Warrant Agreement.
The Cash Settlement Value of any Exercised
Warrants (whether exercised automatically or by Exercise
Notice) shall mean [__________________ (specify fraction)]
of the U.S. dollar equivalent (rounded to the nearest
dollar) of the amount, if any, by which [(i) the Strike
Index (as defined below) exceeds (ii) the Spot Index (as
defined below) on the Valuation Date (as defined below) with
respect to such Exercised Warrant] [the amount, if any, by
which (i) the Spot Index (as defined below) on the Valuation
Date (as defined below) with respect to such Exercised
Warrant exceeds (ii) the Strike Index]; provided that if
such amount is less than zero, the Cash Settlement Value
shall be zero. [The Cancellation Amount of any Exercised
Warrants shall mean [Insert method for determining amount].]
The "Spot Index" on any date shall mean [Insert amount or
method for determining amount]. The "Strike Index" of any
Exercised Warrant shall mean [Insert amount or method for
determining amount]. The exchange rate (or manner of
calculating such rate) for conversion of the Cash Settlement
Value, [the Cancellation Amount,] the Strike Index, the Spot
Index and/or the value of Underlying Securities, as
applicable, into U.S. dollars shall be [_____________
(specify such rate or manner of calculating such rate)] and
shall be determined by the Warrant Agent.
Except in the case of automatic exercise [or
cancellation] as further provided below and in the Index
Warrant Agreement, and subject to any Maximum Exercisable
Number of Warrants, the "Valuation Date" for any Warrant
shall be the first Index Country Business Day next
succeeding the "Exercise Date", which shall be the New York
Business Day on which the Warrant Agent has received
(i) delivery of [such Warrant on the records of the
Depository free to the Warrant Account] [the Definitive
Warrant Certificate representing such Warrant at the Warrant
Agent Office][, (ii) the Exercise Price] and ([iii]) an
Exercise Notice for such Warrant in good order in the form
of [Exhibit B-1] [Exhibit B-2] to the Index Warrant
Agreement, [which shall include certification that the
A-3
<PAGE>
[exercising Owner] [Holder] is not an Index Country
Resident,] at or prior to [3:00 P.M.], New York City time;
provided that if the Warrant Agent receives such Warrant[,
the Exercise Price] or the Exercise Notice after [3:00 P.M.]
on such day, the "Exercise Date" shall be the next
succeeding New York Business Day and such Warrant[, Exercise
Price] and Exercise Notice shall be deemed to have been
received on such next succeeding New York Business Day. Any
delivery of a Warrant or Exercise Notice received after
[3:00 P.M.], New York City time, on the Expiration Date
shall be void and of no effect and shall be deemed not to
have been delivered. [A [Depository Participant] [Holder]
may specify in its irrevocable Exercise Notice in relation
to a Warrant that such Exercise Notice is conditional (a
"Conditional Exercise Notice"), and in such case such
Conditional Exercise Notice shall be void and of no effect
and shall be disregarded for all purposes of the Index
Warrant Agreement if [Describe the terms upon which the
Exercise Notice may be conditional, which may be as follows:
the Spot Index on the day that, but for the provisions of
this sentence, would be the Valuation Date for such Warrant
is more than [_________________] [above] [below] the Spot
Index on the [Designated] Exercise Date of such Warrants
(or, if such date is not an Index Country Business Day, on
the immediately preceding Index Country Business Day) (the
"Reference Value").]
By [5:00 P.M.], New York City time, on the New
York Business Day on which such Exercise Notice is received
(or deemed to have been received), the Warrant Agent shall
notify the Corporation (and such other parties (not to
exceed two) as the Corporation shall designate in writing)
of the number of Warrants in respect of which Exercise
Notices, not rejected pursuant to the Index Warrant
Agreement, were received (or deemed to have been received)
at or prior to [3:00 P.M.], New York City time, on such
date, the number of such Exercise Notices that were rejected
by the Warrant Agent pursuant to the Index Warrant Agreement
and the number of Warrants to which such rejected Exercise
Notices relate [and the number of such Exercise Notices that
were Conditional Exercise Notices (and the number of
Warrants to which such Conditional Exercise Notices
relate)]. By [5:00 P.M.], New York City time, on the
Valuation Date for such Warrants (or if such Valuation Date
is not a New York Business Day, then the next succeeding New
York Business Day), the Warrant Agent shall (i) [(x) after
obtaining the Reference Value and the Spot Index for such
Valuation Date, determine whether any Conditional Exercise
Notices have become void pursuant to Section 2.02(b) of the
Index Warrant Agreement, and if so, promptly notify the
Corporation (and such other parties (not to exceed two) as
A-4
<PAGE>
the Corporation shall designate in writing) and send a
Rejection Notice in the form of Exhibit C to the Index
Warrant Agreement to the appropriate [Depository
Participant] [Holder] and redeliver such Warrants to such
[Depository Participant] [Holder] as provided in the Index
Warrant Agreement and (y)] determine the aggregate number of
[Tendered] [Exercised] Warrants, (ii) [determine pursuant to
Section 2.02(f) of the Index Warrant Agreement the number of
such Tendered Warrants which shall be Exercised Warrants,
(iii)] determine the Cash Settlement Value (in the manner
provided in Section 2.02(h) of the Index Warrant Agreement)
of the Exercised Warrants, (iv) notify the Corporation (and
such other parties (not to exceed two) as the Corporation
shall designate in writing) of the Cash Settlement Value
with respect to such Warrants, (v) send notice of
confirmation of exercise in substantially the form of
Exhibit D to the Index Warrant Agreement to the appropriate
[Depository Participant] [Holder] and (vi) notify the
Corporation (and such other parties (not to exceed two) as
the Corporation shall designate in writing) of such other
matters relating to the Exercised Warrants as the
Corporation shall reasonably request.
If the Corporation has made adequate funds
available to the Warrant Agent in a timely manner as
provided in the Index Warrant Agreement, the Warrant Agent
will make payment in the form of a wire transfer to the
appropriate Depository Participant on the [fifth] New York
Business Day following the Valuation Date (or, if such
Valuation Date is not a New York Business Day, on the
[sixth] New York Business Day after such Valuation Date)
(the "Settlement Date"), all as provided in the Index
Warrant Agreement, such payment to be in the amount of the
Cash Settlement Value in respect of Exercised Warrants
exercised by such Depository Participant. [The Warrant
Agent shall have no responsibility for the crediting by such
Depository Participant of the Cash Settlement Value of such
Warrants to the appropriate Owners.]
[The Warrant Agent will cause its records to be
marked to reflect the reduction in the number of Warrants
represented by this Global Warrant Certificate by the number
of Warrants for which payment has been made in accordance
with the Index Warrant Agreement.] [If this Definitive
Warrant Certificate shall be surrendered to the Warrant
Agent for exercise of fewer than all the Warrants
represented hereby, the Warrant Agent shall issue and
deliver to the Holder of the Warrants represented hereby by
first class mail at the expense of the Corporation a
Definitive Warrant Certificate representing all Warrants
remaining unexercised after such exercise.]
A-5
<PAGE>
All Warrants with respect to which (i) there has
been no proper delivery of Warrants to the Warrant Account
and no valid Exercise Notice has been received by the
Warrant Agent at or prior to [3:00 P.M.], New York City
time, on the earlier to occur of (A) the Expiration Date for
such Warrants and (B) the last New York Business Day prior
to the effective date on which the Warrants are delisting
from, or permanently suspended from trading on, the [name of
national securities exchange] without being accepted for
listing on or prior to such New York Business Day on another
United States national securities exchange (such New York
Business Day, the "Delisting Date"), (ii) the Exercise Date
has been postponed pursuant to Section 2.02(f) of the Index
Warrant Agreement to a date on or after the earlier of the
Expiration Date and the Delisting Date, [or (iii) list other
events causing automatic exercise of Warrants, if
applicable] will be automatically exercised on such
Expiration Date or Delisting Date [or on the date on which
(list other dates of automatic exercise)] (any such date, a
"Deemed Exercise Date") without any requirement of notice of
exercise to the Warrant Agent. The Valuation Date for such
Warrants shall be the first Index Country Business Day
following such Deemed Exercise Date.
If the Corporation has made adequate funds
available to the Warrant Agent in a timely manner as set
forth in the Index Warrant Agreement, the Warrant Agent will
make its payment available in the form of [a wire transfer
to the appropriate Depository Participant] [one or more
cashier's checks or official bank checks to the appropriate
Holder] in the amount of [(x)] the Cash Settlement Amount
with respect to each Warrant [minus (y) the Exercise Price],
after [3:00 P.M.], New York City time, but prior to the
close of business, on the [eighth] New York Business Day
following the Valuation Date for such automatically
exercised Warrants (or, if such Valuation Date is not a New
York Business Day, on the [ninth] New York Business Day
after such Valuation Date), such payment to be in the amount
of the aggregate Cash Settlement Value in respect of
Warrants that have been automatically exercised, all as
provided in the Index Warrant Agreement; provided, however,
that the Warrant Agent shall withhold any such payment with
respect to any Warrants for which the Warrant Agent has not
received [(i)] the related Warrants through transfer of such
Warrants to the Warrant Account[, and (ii) certification
that the Owner of such Warrants is not an Index Country
Resident, dated no earlier than the Deemed Expiration Date
and in the form of Exhibit E-1 to the Index Warrant
Agreement]. When payment has been made in respect of all
automatically exercised Warrants represented by this Warrant
Certificate, the Warrant Agent shall, promptly upon receipt
A-6
<PAGE>
cancel this Warrant Certificate and deliver it to the
Corporation.
If the Index is not calculated and announced by
the [name of Index Publisher] (the "Index Publisher") on a
Valuation Date but is calculated and publicly announced by
another Person not affiliated with the Corporation and
acceptable to the Corporation (the "Third Party"), the
applicable Cash Settlement Value [or Cancellation Amount]
shall be calculated by reference to the value of the closing
quotation for the Index so calculated and announced by the
Third Party.
If, prior to any Valuation Date, the Index
Publisher or the Third Party makes a material change in the
formula for or the method of calculating the Index, the
Corporation shall promptly appoint an investment or
commercial bank of international standing that is not an
affiliate of the Corporation (the "Independent Expert") who
shall make such calculations as may be required to determine
the applicable Cash Settlement Value [or Cancellation
Amount] using the formula and method of calculating the
Index as in effect prior to such change or modification.
If, on any Valuation Date, neither the Index
Publisher nor any Third Party is calculating and
disseminating the Index and neither is providing any
successor index, the Corporation shall promptly appoint an
Independent Expert who shall make such calculations as it
determines may be required to determine the applicable Cash
Settlement Value [or Cancellation Amount] using the formula
and method of calculating the Index as in effect on the date
the Index was last so calculated.
If any of the events referred to above with
respect to the calculation of the Index shall occur, the
Corporation shall promptly make available information
regarding the composition, method of calculation and current
level of the Index or successor index upon written request
to the Corporation's offices at Bankers Trust New York
Corporation, 280 Park Avenue, New York, New York 10017,
Attention: [_______________]. In addition, the Corporation
shall undertake reasonable efforts to ensure that such
information is publicly available. If the Index Publisher
shall elect to suspend or discontinue calculating or
announcing the Index, the Corporation shall so notify the
Owners by giving notice to the Depository in accordance with
the Index Warrant Agreement.
The Corporation, the Warrant Agent and any agent
of the Corporation or the Warrant Agent may deem and treat
A-7
<PAGE>
the registered Holder hereof as the absolute Holder of all
right, title and interest in the Warrants evidenced hereby
(notwithstanding any notation of ownership or other writing
hereon) for any purpose and as the Person entitled to
exercise the rights represented by the Warrants evidenced
hereby, and neither the Corporation nor the Warrant Agent
nor any agent of the Corporation or the Warrant Agent shall
be affected by any notice to the contrary, except that the
Corporation and the Warrant Agent shall be entitled to rely
on and act pursuant to instructions of Depository
Participants as contemplated herein and in the Index Warrant
Agreement.
Subject to the terms of the Index Warrant
Agreement, upon due presentment for registration of transfer
or exchange of this [Global] [Definitive] Warrant
Certificate at the Warrant Agent Office, the Corporation
shall execute and the Warrant Agent shall countersign and
deliver in the name of the designated transferee a new
[Global] [Definitive] Warrant Certificate or [Global]
[Definitive] Warrant Certificates of like tenor and
representing in the aggregate a like number of unexercised
Warrants as evidenced by this [Global] [Definitive] Warrant
Certificate at the time of such registration of transfer,
which shall be issued to the designated transferee in
exchange for this [Global] [Definitive] Warrant Certificate,
subject to the limitations provided in the Index Warrant
Agreement, without charge.
This [Global] [Definitive] Warrant Certificate and
the Index Warrant Agreement are subject to amendment as
provided in the Index Warrant Agreement.
THIS [GLOBAL] [DEFINITIVE] WARRANT CERTIFICATE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
This [Global] [Definitive] Warrant Certificate
shall not be valid or obligatory for any purpose until
countersigned by the Warrant Agent.
A-8
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused
this instrument to be duly executed under its corporate
seal.
Dated as of ________ __, 199__
BANKERS TRUST NEW YORK
CORPORATION
By:___________________________
Name:
Title:
[SEAL]
Attest:_______________________
Name:
Title:
Countersigned on the date
above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
A-9
<PAGE>
EXHIBIT B-1
Form of Exercise Notice
for Warrants Represented by a Global Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation
[name of Index] Index [Put/Call] Warrants Expiring
________ __, 199__ (the "Warrants")
1. We refer to the Index Warrant Agreement, dated
as of ________ __, 199__ (the "Index Warrant Agreement"),
between Bankers Trust New York Corporation (the
"Corporation") and [Name of Warrant Agent], as Warrant Agent
(the "Warrant Agent"). On behalf of certain beneficial
owners, each of whom is exercising no fewer than
[__________] Warrants covered by this Notice and whose
Warrants are held through the Depository in our name, we
hereby irrevocably exercise [_____________] Warrants (the
"Tendered Warrants").
2. This Exercise Notice [is] [is not] a
Conditional Exercise Notice. [We hereby acknowledge that a
Conditional Exercise Notice will be void and of no effect
(and shall be disregarded for all purposes under the Index
Warrant Agreement) if the Spot Index on the date that, but
for the provisions of Section 2.02(b) of the Index Warrant
Agreement, would be the Valuation Date for the Warrants is
more than [__________] [above] [below] the Spot Index on the
[Designated] Exercise Date (or, if the [Designated] Exercise
Date is not an Index Country Business Day, on the
immediately preceding Index Country Business Day).]
3. We have instructed the Depository to deliver
the Exercised Warrants free through the Depository to the
Warrant Account [Account No. _______________])[, and we have
made payment of the Exercise Price as provided in Section
2.01(b) of the Index Warrant Agreement].
4. We hereby acknowledge that this Exercise
Notice[, the Exercise Price] and the Tendered Warrants must
be received by you by [3:00 P.M.], New York City time, on a
New York Business Day in order for the Valuation Date of the
Tendered Warrants to be the Index Country Business Day next
<PAGE>
succeeding such New York Business Day, and that if this
Exercise Notice[, the Exercise Price] or the Tendered
Warrants are received by you after [3:00 P.M.], New York
City time, but prior to the close of business on a New York
Business Day, the Valuation Date of the Tendered Warrants
shall be the Index Country Business Day next succeeding the
first New York Business Day following the day on which this
Exercise Notice[, the Exercise Price] and the Tendered
Warrants are received. [We further acknowledge that if this
Conditional Exercise Notice[, the Exercise Price] or the
Tendered Warrants are received by you after [3:00] P.M., New
York City time, but prior to the close of business on a New
York Business Day, that for purposes of making the
determinations required by such Conditional Exercise Notice,
the Warrants will be deemed to be exercised on the New York
Business Day next succeeding the day on which this Exercise
Notice[, the Exercise Price] and the Tendered Warrants are
received.]
5. We hereby certify that we are a participant of
[The Depository Trust Company] (the "Depository") with the
present right to use and receive its services.
6. We hereby acknowledge that if you determine
that this Exercise Notice has not been duly completed, or is
not in proper form, or you are unable to verify that we are
a participant of the Depository as provided above, this
Exercise Notice will be void and of no effect and will be
deemed not to have been delivered.
7. We hereby direct you to make payment to us of
amounts payable to the beneficial owners of the Tendered
Warrants as a result of the exercise of the Tendered
Warrants hereunder as follows:
[_] By cashier's check or an official bank
check;
or
[_] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank:
Account No.:
ABA Routing No.:
B-1-2
<PAGE>
Reference: _____________________________
[8. We hereby certify that none of the clients on
whose behalf we are exercising the above referenced Warrants
are Index Country Residents.]
Capitalized terms used herein and not defined have
the meanings assigned to them in the Index Warrant
Agreement.
Dated: ________ __, 199__
[NAME OF DEPOSITORY
PARTICIPANT]
[Participant Number]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-1-3
<PAGE>
EXHIBIT B-2
Form of Exercise Notice
for Warrants Represented by a Definitive Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation
[name of Index] Index [Put/Call] Warrants Expiring
________ __, 199__ (the "Warrants")
1. We refer to the Index Warrant Agreement, dated
as of ________ __, 199__ (the "Index Warrant Agreement"),
between Bankers Trust New York Corporation (the
"Corporation") and [Name of Warrant Agent], as Warrant Agent
(the "Warrant Agent"). We hereby irrevocably exercise
[_____________] Warrants (the "Tendered Warrants") and
deliver to you herewith a Definitive Warrant Certificate or
Certificates, registered in the name of the undersigned,
representing a number of Warrants at least equal to the
number of Exercised Warrants [and payment of the Exercise
Price as provided in Section 2.01(b) of the Index Warrant
Agreement].
2. This Exercise Notice [is] [is not] a
Conditional Exercise Notice. [We hereby acknowledge that a
Conditional Exercise Notice will be void and of no effect
(and shall be disregarded for all purposes under the Index
Warrant Agreement) if the Spot Index on the date that, but
for the provisions of Section 2.02(b) of the Index Warrant
Agreement, would be the Valuation Date for the Warrants is
more than [__________] [above] [below] the Spot Index on the
Exercise Date (or, if the Exercise Date is not an Index
Country Business Day, on the immediately preceding Index
Country Business Day).]
3. We hereby acknowledge that this Exercise
Notice[, the Exercise Price] and the Definitive Warrant
Certificates representing the Tendered Warrants must be
received by you by [3:00] P.M., New York City time, on a New
York Business Day in order for the Valuation Date of the
Tendered Warrants to be the Index Country Business Day next
succeeding such New York Business Day, and that if this
Exercise Notice[, the Exercise Price] or such Definitive
Warrant Certificates are received by you after [3:00] P.M.,
New York City time, but prior to the close of business on a
<PAGE>
New York Business Day, the Valuation Date of the Tendered
Warrants shall be the Index Country Business Day next
succeeding the first New York Business Day following the day
on which this Exercise Notice[, the Exercise Price] and such
Definitive Warrant Certificates are received. [We further
acknowledge that if this Conditional Exercise Notice[, the
Exercise Price] or such Definitive Warrant Certificates are
received by you after [3:00] P.M., New York City time, but
prior to the close of business on a New York Business Day,
that for purposes of making the determinations required by
such Conditional Exercise Notice, the Warrants will be
deemed to be exercised on the New York Business Day next
succeeding the day on which this Exercise Notice[, the
Exercise Price] and such Definitive Warrant Certificates are
received.]
4. We hereby acknowledge that if you determine
that this Exercise Notice has not been duly completed or is
not in proper form, this Exercise Notice will be void and of
no effect and will be deemed not to have been delivered.
5. We hereby direct you to make payment of
amounts payable to us as a result of the exercise of the
Warrants hereunder as follows:
[_] By cashier's check or an official bank
check;
or
[_] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank: __________________________
Account No.: ___________________
ABA Routing No.: _______________
Reference: _____________________
[6. We hereby certify that at the time this
notice is delivered to you, the beneficial owners of the
Tendered Warrants are not Index Country Residents.]
B-2-2
<PAGE>
Capitalized terms used herein and not defined have
the meanings assigned to them in the Index Warrant
Agreement.
Dated: ________ __, 199__
[NAME OF HOLDER]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-2-3
<PAGE>
EXHIBIT C
Form of Rejection Notice
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation
[name of Index] Index [Put/Call] Warrants Expiring
________ __, 199__ (the "Warrants")
We refer to the Index Warrant Agreement, dated as
of ________ __, 199__ (the "Index Warrant Agreement"),
between Bankers Trust New York Corporation (the
"Corporation") and the undersigned, as Warrant Agent (the
"Warrant Agent").
In the case of Tendered Warrants represented by a
Global Warrant Certificate and rejected pursuant to Section
2.02(c)(v) of the Index Warrant Agreement: You are hereby
notified that [the Exercise Notice delivered by you was
determined by us not to have been [duly completed] [in
proper form]] [we were not able to verify that you are a
Depository Participant of [The Depository Trust Company] in
the manner, and pursuant to the procedures], as set forth in
the Index Warrant Agreement. Accordingly, we have rejected
your Exercise Notice as being unsatisfactory as to form.
In the case of Tendered Warrants represented by a
Definitive Warrant Certificate and rejected pursuant to
Section 2.02(c)(ii) of the Index Warrant Agreement: You are
hereby notified that [the Exercise Notice delivered by you
was determined by us not to have been [duly completed] [in
proper form]] [the Definitive Warrant Certificate delivered
by you was determined by us not to have been in proper
form], as set forth in the Index Warrant Agreement.
Accordingly, we have rejected your Exercise Notice as being
unsatisfactory as to form.
[In the case of Tendered Warrants that become void
pursuant to Section 2.02(b) of the Index Warrant Agreement:
You are hereby notified that we have rejected your
Conditional Exercise Notice because the Spot Index on the
Valuation Date was [____________], and the Spot Index on the
[Designated] Exercise Date (or, if the [Designated] Exercise
Date was not an Index Country Business Day, on the
immediately preceding Index Country Business Day) was
[_______________].]
<PAGE>
Capitalized terms used herein and not defined have
the meanings assigned to them in the Index Warrant
Agreement.
Dated: ________ __, 199__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D
Form of Confirmation of Exercise
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation
[name of Index] Index [Put/Call] Warrants Expiring
________ __, 199__ (the "Warrants")
We refer to the Index Warrant Agreement, dated as
of ________ __, 199__ (the "Index Warrant Agreement"),
between Bankers Trust New York Corporation (the
"Corporation") and the undersigned, as Warrant Agent (the
"Warrant Agent").
We hereby confirm receipt of your Exercise Notice
with respect to ____________ Warrants (the "Exercised
Warrants"), and the [Definitive Warrant Certificates
representing the] Warrants relating thereto, which Exercise
Notice [and Definitive Warrant Certificates] we have found
to be duly completed and in good order[, and we have
verified, in the manner provided in the Index Warrant
Agreement, that you are a Depository Participant].
[The Corporation has elected to limit the number
of Warrants that may have an Exercise Date of ___________
__, 199__ to [____________]. Of the Tendered Warrants,
[_______________] Warrants have been selected to be Warrants
that will have an Exercise Date on such date (such Warrants,
the "Exercised Warrants"). The remaining [_____________]
Tendered Warrants are deemed to be Delayed Exercise
Warrants.] [The Corporation has not elected to limit the
number of Warrants that may be exercised pursuant to Section
2.02(f) of the Index Warrant Agreement. Accordingly, all of
the Tendered Warrants will have an Exercise Date of
__________ __, 199__ and are hereinafter referred to as
"Exercised Warrants".]
We hereby confirm that the aggregate Cash
Settlement Value of [payment currency] [_________________]
of such Exercised Warrants ([payment currency]
[_____________] per Warrant) [minus the aggregate Exercise
Price thereof] will be made available to you in the form of
a [wire transfer] [check], [five] New York Business Days
after the Valuation Date for the Exercised Warrants (or, if
the Valuation Date for the Exercised Warrants was not a New
<PAGE>
York Business Day, [six] New York Business Days after the
Valuation Date) in accordance with the terms of the Index
Warrant Agreement.
Capitalized terms used herein and not defined have
the meanings assigned to them in the Index Warrant
Agreement.
Dated: ________ __, 199__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
D-2
<PAGE>
EXHIBIT E-1
Form of Depository Participant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Automatic Exercise of Bankers Trust New York
Corporation [name of Index] Index [Put/Call]
Warrants Expiring ________ __, 199__ (the
"Warrants")
We refer to the Index Warrant Agreement, dated as
of ________ __, 199__ (the "Index Warrant Agreement"),
between Bankers Trust New York Corporation (the
"Corporation") and [Name of Warrant Agent], as Warrant Agent
(the "Warrant Agent").
We hereby certify that:
(a) we are acting on behalf of the Owners of
____________ Warrants, which have been automatically
exercised pursuant to the Index Warrant Agreement and
which we have delivered free on the records of the
Depository to the Warrant Account[; and
(b) we have received certification from such
Owners that the beneficial owners of such Warrants are
not Index Country Residents].
<PAGE>
Capitalized terms used herein and not defined have
the meanings assigned to them in the Index Warrant
Agreement.
Dated: ________ __, 199__
[NAME OF DEPOSITORY
PARTICIPANT]
[Participant Number]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
E-1-2
<PAGE>
EXHIBIT E-2
Form of Holder Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Automatic Exercise of Bankers Trust New York
Corporation [name of Index] Index [Put/Call]
Warrants Expiring ________ __, 199__ (the
"Warrants")
We refer to the Index Warrant Agreement, dated as
of ________ __, 199__ (the "Index Warrant Agreement"),
between Bankers Trust New York Corporation (the
"Corporation") and [Name of Warrant Agent], as Warrant Agent
(the "Warrant Agent").
We hereby certify that:
(a) we are the Holders of ____________ Warrants,
which have been automatically exercised pursuant to the
Index Warrant Agreement; [and]
(b) we have surrendered the Definitive Warrant
Certificates representing such Warrants at the Warrant
Agent Office[; and
(c) as of the date hereof, the beneficial owners
of such Warrants are not Index Country Residents].
<PAGE>
Capitalized terms used herein and not defined have
the meanings assigned to them in the Index Warrant
Agreement.
Dated: ________ __, 199__
[NAME OF HOLDER]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
E-2-2
<PAGE>
EXHIBIT 4.9
================================================================================
INTEREST RATE WARRANT AGREEMENT
dated as of ________ __, 199__
between
BANKERS TRUST NEW YORK CORPORATION
and
[NAME OF WARRANT AGENT], as Warrant Agent
---------------------------
Interest Rate [Put/Call] Warrants
Expiring ________ __, 199__
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
PARTIES........................................................1
RECITALS.......................................................1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants;
Book-Entry Procedures; Successor
Depository..................................... 1
Section 1.02. Form; Denominations; Execution,
Countersignature, Delivery and
Dating of Global Warrant
Certificates................................... 4
Section 1.03. Definitive Warrant Certificates................ 5
Section 1.04. Maintenance of Warrant Register;
Registration of Transfers and
Exchanges of Global Warrant
Certificates................................... 7
Section 1.05. Mutilated, Destroyed, Lost and
Stolen Warrant Certificates.................... 9
Section 1.06. Cancellation of Warrants....................... 10
ARTICLE II
[EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS
Section 2.01. Duration of Warrants; Method of
Exercise; Minimum [and Maximum]
Exercise Amounts; Notice of
Exercise....................................... 11
Section 2.02. Exercise of Warrants........................... 14
Section 2.03. Automatic Exercise of Warrants................. 21
[Section 2.04. Cancellation of Warrants...................... 24
[Section 2.05. Discontinuance or Modification of
[Debt Instrument] [Rate]....................... 24
Section 2.06. Designation of Agent for Receipt of
Notice......................................... 24
[Section 2.07. Extraordinary Events.......................... 24
Section 2.08. Temporary Suspension of the Right
to Exercise the Warrants....................... 24
<PAGE>
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders........................... 24
Section 3.02. Holder or Owner of Warrant May
Enforce Rights................................. 25
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent.................................. 25
Section 4.02. Certain Duties of the Warrant
Agent.......................................... 26
Section 4.03. Conditions of Warrant Agent's
Obligations.................................... 26
Section 4.04. Compliance With Applicable Laws................ 29
Section 4.05. Corporate Warrant Agent Required;
Eligibility.................................... 29
Section 4.06. Resignation and Removal;
Appointment of Successor....................... 29
Section 4.07. Acceptance of Appointment by
Successor...................................... 31
Section 4.08. Merger, Conversion, Consolidation
or Succession to Business...................... 31
ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the
Corporation and Sales, Leases and
Conveyances Permitted Subject to
Certain Conditions............................. 32
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Interest Rate Warrant
Agreement...................................... 33
Section 6.02. Form of Approval of Supplemental
Agreements by Owners or Holders................ 35
Section 6.03. Effect of Supplemental Agreements............... 35
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<PAGE>
Section 6.04. Reference in Warrants to
Supplemental Agreements........................ 35
ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Listing of Warrants on National
Securities Exchange............................ 35
Section 7.02. Governmental Approvals......................... 36
Section 7.03. Payment of Cash Settlement Value
[or Cancellation Amount]....................... 36
Section 7.04. Maintenance of Office or Agency;
Unclaimed Moneys............................... 36
Section 7.05. Corporate Existence............................ 37
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants................. 38
Section 8.02. Payment of Taxes............................... 38
Section 8.03. Notices and Demands to the
Corporation and Warrant Agent.................. 38
Section 8.04. Addresses for Notices.......................... 38
Section 8.05. Notices to Owners and Holders.................. 38
SECTION 8.06. GOVERNING LAW.................................. 39
Section 8.07. Benefits of Interest Rate Warrant
Agreement...................................... 39
Section 8.08. Successors and Assigns......................... 39
Section 8.09. Interest Rate Warrant Agreement and
Warrants Solely Corporate
Obligations.................................... 39
Section 8.10. Severability................................... 39
Section 8.11. Headings....................................... 39
Section 8.12. Counterparts................................... 40
Section 8.13. Inspection of Interest Rate Warrant
Agreement...................................... 40
EXHIBITS
Exhibit A Form of Warrant Certificate
Exhibit B-1 Form of Exercise Notice from
Depository Participant
Exhibit B-2 Form of Exercise Notice from Holder
of Definitive Warrant Certificate
Exhibit C Form of Rejection Notice
Exhibit D Form of Confirmation of Exercise
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<PAGE>
Exhibit E-1 Form of Depository Participant
Certificate
Exhibit E-2 Form of Holder Certificate
INTEREST RATE WARRANT AGREEMENT
-iv-
<PAGE>
INTEREST RATE WARRANT AGREEMENT
INTEREST RATE WARRANT AGREEMENT, dated as of ________ __, 199__ (as
modified, amended or supplemented, this "Agreement"), between BANKERS TRUST NEW
YORK CORPORATION, a corporation organized and existing under the laws of the
State of New York (the "Corporation"), and [NAME OF WARRANT AGENT], a [banking
association] [corporation] organized and existing under the laws of
______________, as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Corporation proposes to sell [put] [call] warrants (each,
a "Warrant") representing the right to receive from the Corporation an amount in
[U.S. dollars (specify other currency if applicable)] to be determined by
reference to [decreases] [increases] in the [[yield] [closing price] of [(insert
name or names of one or more specified debt instruments issued either by the
United States government or by a foreign government)] (the "Debt Instrument")]
[(insert name of interest rate or interest rate swap rate) established from time
to time by (insert name of specified financial institution or institutions) (the
"Rate")]; and
WHEREAS, the Corporation desires the Warrant Agent to act on behalf of
the Corporation, and the Warrant Agent is willing so to act, in connection with
the issuance, transfer, exchange, exercise and cancellation of the Warrants, and
the Corporation desires to set forth herein, among other things, the provisions
of the Warrants and the terms and conditions under which they may be issued,
transferred, exchanged, exercised and canceled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants; Book-Entry
Procedures; Successor Depository. (a) Each Warrant shall represent the right,
subject to the provisions
<PAGE>
contained herein and therein, to receive the Cash Settlement Value (as defined
in Section 2.02(g)) [or the Cancellation Amount (as defined in Section 2.04(b)),
as the case may be,] of such Warrant. Such Cash Settlement Value [or
Cancellation Amount, as the case may be,] shall be payable in [U.S. dollars
(specify other currency if applicable)]. In no event shall any registered
holder of a Warrant (each, a "Holder") or any Owner (as defined in Section
1.01(c)) be entitled to receive any interest on any Cash Settlement Value [or
Cancellation Amount, as the case may be], and the Warrants shall not entitle the
Holders or Owners thereof to any of the rights of the holder of any [Debt
Instrument] [instrument underlying such Warrants] or any other securities. No
Warrant shall require or entitle the Holder or Owner thereof to sell, deliver,
purchase or take delivery of any [Debt Instrument] [instrument underlying such
Warrants] or any other securities to or from the Corporation, nor shall the
Corporation be under any obligation to purchase or take delivery of, or sell or
deliver, any such securities to or from the Holders or Owners thereof.
(b) The Warrants shall constitute direct, unconditional and unsecured
obligations of the Corporation.
(c) The Warrants shall initially be issued in book-entry form and
represented by one or more global certificates (each, a "Global Warrant
Certificate"). Owners of beneficial interests in a Global Warrant Certificate
(each, an "Owner") shall not be entitled to receive definitive certificates
evidencing the Warrants; provided, however, that the Corporation shall issue
Warrants in definitive form (each, a "Definitive Warrant Certificate", and with
the Global Warrant Certificates, the "Warrant Certificates") in exchange for a
Global Warrant Certificate if (i) the Depository (as defined in Section 1.01(d))
has notified the Corporation that it is unwilling or unable to continue as
Depository for such Global Warrant Certificate or if at any time it has ceased
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when it is required to be so registered in order to act as
Depository, and a successor Depository is not appointed by the Corporation
within 90 days, (ii) the Corporation at any time shall determine to have the
Warrants represented by Definitive Warrant Certificates and shall execute and
deliver to the Warrant Agent a written order signed in the name of the
Corporation by its Chairman of the Board, its Vice Chairman, its President or
a Vice President,
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<PAGE>
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary (each such order, a "Corporation Order") stating that the Corporation
wishes to issue Warrants in definitive form in exchange for such Global Warrant
Certificate, or (iii) there shall have occurred and be continuing a default in
the payment of the Cash Settlement Amount [or Cancellation Amount, as the case
may be,] with respect to the Warrants. In any such instance, and in accordance
with the provisions of this Agreement, each Owner shall be entitled to have
registered in its name the number of Warrants in definitive form equivalent to
such Owner's beneficial interest in such Global Warrant Certificate and shall be
entitled to physical delivery of Definitive Warrant Certificates representing
such Warrants by the Depository Participant or Indirect Participant (each as
defined in Section 1.01(d)) through which such Owner's beneficial interest is
reflected.
(d) Each Global Warrant Certificate shall initially be registered in
the name of, and the Holder of each Warrant represented by such Global Warrant
Certificate shall be, [The Depository Trust Company] or its agent (the
"Depository", which term shall include any nominee of the Depository and any
successor depository selected by the Corporation as provided in Section
1.01(e)), and shall be deposited with the Depository or its agent for credit to
the accounts of the Depository Participants as shown on the records of the
Depository from time to time. The Warrant holdings of Depository Participants
shall be recorded on the books of the Depository. The Warrant holdings of
Indirect Participants and of Owners who are customers of Depository Participants
shall be reflected on the books and records of such Depository Participants and
shall not be known to the Warrant Agent, the Corporation or the Depository. The
Warrant holdings of Owners who are customers of Indirect Participants shall be
reflected on the books and records of such Indirect Participants and shall not
be known to the Warrant Agent, the Corporation, the Depository Participants or
the Depository. Neither the Corporation nor the Warrant Agent shall have any
responsibility or liability for any aspect of the records relating to beneficial
ownership interests in a Global Warrant Certificate or for maintaining,
supervising or reviewing any records relating to any such beneficial ownership
interest. As used herein, the term "Depository Participant" shall include any
participant in the Depository's system and, for purposes of this Agreement,
shall also mean any participant in the book-entry system of any successor
Depository. As used herein, the term "Indirect Participant" shall include any
other bank, securities dealer, trust company or other Person (as
defined below) that clears or maintains a custodial
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<PAGE>
relationship with a Depository Participant, either directly or indirectly. As
used herein, the term "Person" shall include any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
(e) The Corporation may from time to time select a new Person to act
as Depository and, if such selection is made, the Corporation shall promptly
give the Warrant Agent and the existing Depository notice to such effect
identifying the new Depository. As promptly as practicable thereafter, the
Depository shall deliver each Global Warrant Certificate then held by it to the
Warrant Agent, and the Warrant Agent shall register the transfer of such Global
Warrant Certificate to the new Depository as provided in Section 1.04.
Appropriate changes may be made in each Global Warrant Certificate, and in the
notice of exercise and the related notices delivered in connection with an
exercise or deemed exercise of Warrants to reflect the selection of the new
Depository.
Section 1.02. Form; Denominations; Execution, Countersignature,
Delivery and Dating of Global Warrant Certificates. (a) At any time and from
time to time after the execution and delivery of this Agreement, the Corporation
may deliver one or more Global Warrant Certificates, each representing any
integral number of Warrants [not exceeding ________________ Warrants originally
issued,] executed by the Corporation as set forth in Section 1.02(b), to the
Warrant Agent for countersignature, together with a Corporation Order for the
countersignature and delivery of such Warrants, and the Warrant Agent shall
manually countersign and deliver such Warrants in accordance with such
Corporation Order. During such time as Warrants shall be represented by Global
Warrant Certificates, the Corporation may issue additional Warrants in
accordance with the terms of this Agreement either by issuing an additional
Global Warrant Certificate or by issuing a new Global Warrant Certificate in
exchange for the existing Global Warrant Certificate, provided that any such
exchange shall conform to the requirements set forth in Section 1.04(f).
(b) Each Global Warrant Certificate, whenever issued, shall be in
registered form substantially in the form of Exhibit A, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. Each Global Warrant Certificate shall be printed,
lithographed, typewritten, mimeographed or engraved on steel engraved
borders or otherwise reproduced in any other manner as may
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<PAGE>
be approved by the officers executing the same (such execution to be conclusive
evidence of such approval) and may have imprinted or otherwise reproduced
thereon such letters, numbers or other marks of identification or designation
and such legends or endorsements as the officers of the Corporation executing
the same may approve (such execution to be conclusive evidence of such approval)
and that are not inconsistent with the provisions of this Agreement, or as may
be required to comply with any law or with any rule or regulation made pursuant
thereto, or with any rule or regulation of any securities exchange on which the
Warrants may be listed, or of the Depository, or to conform to usage. Each
Global Warrant Certificate shall be signed on behalf of the Corporation by its
Chairman of the Board, its Vice Chairman, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any such officer
on any Global Warrant Certificate may be either manual or facsimile.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Global Warrant Certificate that has been duly countersigned and delivered by
the Warrant Agent.
(c) No Global Warrant Certificate shall be entitled to any benefit
under this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, unless such Global Warrant Certificate
has been countersigned by the Warrant Agent. Such signature by the Warrant
Agent upon any Global Warrant Certificate executed by the Corporation shall be
conclusive evidence, and the only evidence, that such Global Warrant Certificate
so countersigned has been duly issued hereunder.
(d) Any Global Warrant Certificate bearing the manual or facsimile
signatures of individuals who were at the time of such signature the proper
officers of the Corporation shall bind the Corporation, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
countersignature and delivery of such Global Warrant Certificate or did not hold
such offices at the date of such Global Warrant Certificate.
(e) Each Global Warrant Certificate shall be dated the date of its
countersignature.
Section 1.03. Definitive Warrant Certificates. (a) Any Definitive
Warrant Certificate issued in accordance with Section 1.01(c), whenever issued,
shall be in registered form substantially in the form of Exhibit A, with
-5-
<PAGE>
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Agreement or necessary or desirable for
individual Definitive Warrant Certificates, provided that each such Definitive
Warrant Certificate shall have imprinted on the reverse thereof the Exercise
Notice substantially in the form of Exhibit B-2. Each Definitive Warrant
Certificate may represent any integral number of Warrants [not exceeding
________________ Warrants originally issued], shall be printed, lithographed,
typewritten, mimeographed or engraved on steel engraved borders or otherwise
reproduced in any other manner as may be approved by the officers executing the
same (such execution to be conclusive evidence of such approval), and may have
imprinted or otherwise reproduced thereon such letters, numbers or other marks
of identification or designation and such legends or endorsements as the
officers of the Corporation executing the same may approve (such execution to be
conclusive evidence of such approval) and that are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto, or with any rule or
regulation of any securities exchange on which the Warrants may be listed, or of
the Depository, or to conform to usage. Each Definitive Warrant Certificate
shall be signed on behalf of the Corporation upon the same conditions, in
substantially the same manner and with the same effect as set forth in Section
1.02 with respect to Global Warrant Certificates.
(b) Each Definitive Warrant Certificate, when so signed on behalf of
the Corporation, shall be delivered to the Warrant Agent together with a
Corporation Order for the countersignature and delivery of such Warrants, and
the Warrant Agent shall manually countersign and deliver such Warrants in
accordance with such Corporation Order upon the same conditions, in
substantially the same manner and with the same effect as set forth in Section
1.02 with respect to Global Warrant Certificates. Each Definitive Warrant
Certificate shall be dated the date of its countersignature.
(c) No Definitive Warrant Certificate shall be entitled to any
benefit under this Agreement or be valid or obligatory for any purpose, and no
Warrant evidenced thereby shall be exercisable, unless such Definitive Warrant
Certificate has been countersigned by the Warrant Agent. Such signature by the
Warrant Agent upon any Definitive Warrant Certificate executed by the
Corporation shall be conclusive evidence, and the only evidence, that such
Definitive Warrant Certificate so countersigned has been duly issued hereunder.
-6-
<PAGE>
(d) Any Definitive Warrant Certificate bearing the manual or
facsimile signatures of individuals who were at the time of such signature the
proper officers of the Corporation shall bind the Corporation, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the countersignature and delivery of such Definitive Warrant Certificate or did
not hold such offices at the date of such Definitive Warrant Certificate.
(e) Definitive Warrant Certificates delivered in exchange for a
Global Warrant Certificate shall be registered in such names and addresses
(including tax identification numbers) and in such denominations as shall be
requested in writing by the Depository or its nominee in whose name such Global
Warrant Certificate is registered, upon written certification to the Corporation
and the Warrant Agent, in form satisfactory to each of them, of the existing
beneficial ownership interests in such Global Warrant Certificate.
(f) The Holder of any Warrant represented by a Definitive Warrant
Certificate shall be the Person in whose name such Definitive Warrant
Certificate is registered in the Warrant Register (as defined in Section 1.04)
at such time.
Section 1.04. Maintenance of Warrant Register; Registration of
Transfers and Exchanges of Global Warrant Certificates. (a) The Corporation
shall cause to be kept at the Warrant Agent Office (as defined in Section
1.04(b)) a register (the "Warrant Register"), which may be maintained
electronically and in which, subject to such reasonable regulations as it may
prescribe, the Corporation shall provide for the registration and registration
of transfer, exchange, exercise and cancellation of Warrants. The Warrant Agent
is hereby appointed "Warrant Registrar" for the purpose of registering Warrant
Certificates and transfers and exchanges of Warrant Certificates as herein
provided.
(b) A Warrant Certificate may be transferred at the option of the
Holder thereof upon surrender of such Warrant Certificate at the office or
agency of the Warrant Agent maintained for the purpose of transferring,
exchanging, exercising and canceling the Warrants, which shall be south of
Chambers Street in the Borough of Manhattan, The City of New York (the "Warrant
Agent Office"), and which is, on the date of this Agreement,
_______________________, New York, New York, _____, Attention: [Corporate Trust
Department], or at the office of any successor Warrant Agent as provided in
Article IV.
-7-
<PAGE>
Upon any such registration of transfer, the Corporation shall execute, and the
Warrant Agent shall countersign and deliver, as provided in Section 1.02 or
1.03, as the case may be, in the name of the designated transferee a new Global
Warrant Certificate or Definitive Warrant Certificate, as the case may be, of
like tenor, of any authorized denomination and representing in the aggregate a
like number of unexercised Warrants as evidenced by such Warrant Certificate at
the time of such registration of transfer, and bearing a number not
contemporaneously outstanding.
(c) A Warrant Certificate may be exchanged at the option of the
Holder thereof for other Global Warrant Certificates or Definitive Warrant
Certificates, as the case may be, of like tenor, of any authorized denomination
and representing in the aggregate a like number of unexercised Warrants, upon
surrender of such Warrant Certificate at the Warrant Agent Office. Whenever any
Warrant Certificate is so surrendered for exchange, the Corporation shall
execute, and the Warrant Agent shall countersign and deliver, as provided in
Section 1.02 or 1.03, as the case may be, the Global Warrant Certificates or
Definitive Warrant Certificates, as the case may be, that the Holder of such
exchanged Warrant Certificate is entitled to receive and bearing a number not
contemporaneously outstanding.
(d) Any Warrant Certificate presented or surrendered for registration
of transfer or for exchange shall be duly endorsed or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent
and the Corporation, duly signed by the registered Holder thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed by a bank or trust company, by a broker or dealer
that is a member of the National Association of Securities Dealers, Inc. or by a
member of a national securities exchange.
(e) Except as otherwise provided herein or in a Global Warrant
Certificate, the Warrant Agent shall register the transfer of such Global
Warrant Certificate on the records of the Warrant Agent only to the Depository,
to a nominee of the Depository, to a successor Depository or to a nominee of the
successor Depository.
(f) A Global Warrant Certificate may be exchanged for a new Global
Warrant Certificate to reflect the issuance by the Corporation of additional
Warrants[; provided, however, that in no event shall the number of Warrants
represented by any Global Warrant Certificate exceed
-8-
<PAGE>
___________________ originally issued]. To effect such an exchange, the
Corporation shall deliver to the Warrant Agent a new Global Warrant Certificate
duly executed on behalf of the Corporation as provided in Section 1.02, together
with a Corporation Order for the countersignature and delivery of such Warrants.
The Warrant Agent shall countersign such new Global Warrant Certificate as
provided in Section 1.02 and in accordance with such Corporation Order, and
shall deliver such new Global Warrant Certificate to the Depository in exchange
for, and upon receipt of, the Global Warrant Certificate then held by the
Depository. The Warrant Agent shall cancel the Global Warrant Certificate
delivered to it by the Depository and return the canceled Global Warrant
Certificate to the Corporation.
(g) All Warrant Certificates issued upon any registration of transfer
or exchange of Global Warrant Certificates or Definitive Warrant Certificates,
as the case may be, shall be valid obligations of the Corporation, evidencing
the same obligations of the Corporation and entitled to the same benefits under
this Agreement, as the Warrant Certificates surrendered upon such registration
of transfer or exchange. The Warrant Agent shall not be required to effect any
exchange or transfer that would result in the issuance of a Warrant Certificate
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant.
(h) No service charge shall be made for any registration of transfer
or exchange of Warrant Certificates, but the Corporation may require payment of
a sum sufficient to cover any stamp or other tax or other governmental charge
that may be imposed in connection with any such transfer or exchange.
Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant
Certificates. (a) If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Corporation shall execute, and the Warrant Agent shall
countersign and deliver in exchange therefor, as provided in Section 1.02 or
1.03, as the case may be, a new Warrant Certificate of like tenor representing a
like number of unexercised Warrants and bearing a number not contemporaneously
outstanding.
(b) If there shall be delivered by a Holder of a Warrant Certificate
to the Corporation and the Warrant Agent (i) evidence to their satisfaction of
the destruction, loss or theft of any Warrant Certificate, (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, and (iii) funds
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sufficient to cover any cost or expense to the Corporation (including any fees
charged by the Warrant Agent) relating to the issuance of a new Warrant
Certificate, then, in the absence of notice to the Corporation or the Warrant
Agent that such Warrant Certificate has been acquired by a bona fide purchaser,
the Corporation shall execute, and the Warrant Agent shall countersign and
deliver, as provided in Section 1.02 or 1.03, as the case may be, in lieu of any
such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of
like tenor representing a like number of unexercised Warrants and bearing a
number not contemporaneously outstanding.
(c) If the Warrants evidenced by any such mutilated, destroyed, lost
or stolen Warrant Certificate have been exercised, or have been or are about to
be deemed to be exercised, the Corporation in its discretion may, instead of
issuing a new Warrant Certificate, treat the same as if it had received written
irrevocable notice of exercise in good form in respect thereof, as provided
herein.
(d) Upon the issuance of any new Warrant Certificate under this
Section, the Corporation may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Warrant Agent)
connected therewith.
(e) Every new Warrant Certificate issued pursuant to this Section
1.05 in lieu of any mutilated, destroyed, lost or stolen Warrant Certificate
shall constitute an original additional contractual obligation of the
Corporation, whether or not the mutilated, destroyed, lost or stolen Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all
other Warrant Certificates duly issued hereunder.
(f) The provisions of this Section 1.05 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 1.06. Cancellation of Warrants. (a) If the Corporation
shall purchase or otherwise acquire Warrants represented by a Global Warrant
Certificate, such Warrants may, at the option of the Corporation and upon
notification to the Warrant Agent, be surrendered free through a Depository
Participant for credit to the Warrant Account (as
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defined in Section 2.01(b)) and if so credited, the Warrant Agent shall promptly
note the cancellation of such Warrants by notation on the records of the Warrant
Agent and on the Warrant Register.
(b) When all of the Warrants represented by any Global Warrant
Certificate have been exercised by the Owner thereof, automatically exercised or
otherwise canceled, and upon receipt of the same by the Warrant Agent, the
Warrant Agent shall promptly cancel such Global Warrant Certificate.
(c) The Corporation may at any time deliver to the Warrant Agent for
cancellation any Definitive Warrant Certificates previously countersigned and
delivered hereunder that the Corporation may have acquired in any manner
whatsoever, and the Warrant Agent shall promptly cancel all Definitive Warrant
Certificates so delivered.
(d) All Warrant Certificates surrendered for exercise, registration
of transfer or exchange or cancellation, if surrendered to any Person other than
the Warrant Agent, shall be delivered to the Warrant Agent, and the Warrant
Agent shall promptly cancel all such Warrant Certificates and all other Warrant
Certificates surrendered to it for exercise, registration of transfer or
exchange or cancellation.
(e) No Warrant Certificate shall be countersigned in lieu of or in
exchange for any Warrant Certificate canceled as provided in this Section 1.06
except as expressly permitted by this Agreement. All canceled Warrant
Certificates held by the Warrant Agent shall be destroyed by it unless by
written order the Corporation requests their return to it.
ARTICLE II
[EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS
Section 2.01. Duration of Warrants; Method of Exercise; Minimum [and
Maximum] Exercise Amounts; Notice of Exercise. (a) Subject to the limitations
described herein, each Warrant may be exercised in whole but not in part on any
New York Business Day (as defined in Section 2.01(f)) from [its date of issuance
(specify other date if applicable)] until [3:00 P.M.], New York City time, on
the earlie[st] of (i) [______________ (specify date upon which right to exercise
Warrants expires)] or, if such date is not a New York Business Day, on the next
succeeding New York Business Day (the "Expiration Date"), [or] (ii) the date of
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automatic exercise as provided in Section 2.03 [or (iii) the date of
cancellation as provided in Section 2.04][; provided that the Corporation may
temporarily suspend the right of the Holders to exercise their Warrants pursuant
to the provisions of Section 2.08]. [No exercise price shall be payable by any
Holder or Owner in connection with the exercise of any Warrant.] [The exercise
price for each Warrant shall be $_____ and shall be payable [in U.S. dollars
(specify other currency if applicable)] (the "Exercise Price").]
(b) Except in the case of automatic exercise, each Warrant may be
exercised by:
(i) in the case of any Warrant represented by a Global Warrant
Certificate (each, a "Book-Entry Warrant"), (A) transfer of such Warrant on
the records of the Depository free to the Warrant Agent's Depository
Participant account (entitled ____________________), or such other account
of the Warrant Agent at the Depository as the Warrant Agent shall specify
(the "Warrant Account"), [and] (B) delivery to the Warrant Agent as
provided in Section 2.01(d)(i)(C) of written notice (an "Exercise Notice")
duly completed and executed by a Depository Participant acting on behalf of
the Owner of such Warrant [and (C) payment of the Exercise Price [in U.S.
dollars (specify other currency if applicable)] [in cash or by cashier's
check or official bank check in New York Clearing House funds] [by bank
wire transfer in immediately available funds] payable to the account of the
Corporation]; and
(ii) in the case of Warrants represented by a Definitive Warrant
Certificate (each, a "Certificated Warrant"), (A) surrender of such
Definitive Warrant Certificate to the Warrant Agent at the Warrant Agent
Office, [and] (B) delivery to the Warrant Agent as provided in Section
2.01(d)(ii)(C) of an Exercise Notice duly completed and executed by the
Holder of such Warrant [and (C) payment of the Exercise Price [in U.S.
dollars (specify other currency if applicable)] [in cash or by cashier's
check or official bank check in New York Clearing House funds] [by bank
wire transfer in immediately available funds] payable to the account of the
Corporation];
provided, however, that each Exercise Notice is subject to rejection by the
Warrant Agent as provided herein.
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(c) Not fewer than [specify minimum exercise amount] [nor more than
[specify maximum exercise amount]] Warrants may be exercised by or on behalf of
any one Owner or, in the case of Certificated Warrants, any one Holder at any
one time, except that no such minimum [or maximum] exercise amount shall apply
in the case of (i) the automatic exercise of any Warrants, or (ii) the exercise
of any Warrants on the Expiration Date.
(d) An Exercise Notice [may be conditioned as set forth in Section
2.02(b), but] shall [otherwise] be unconditional. Each Exercise Notice shall be
irrevocable and:
(i) in the case of any Book-Entry Warrant, shall (A) be in the form of
Exhibit B-1 hereto, [(B) shall include a certification by the Depository
Participant submitting such Exercise Notice that the Owners affected by
such Exercise Notice are not Interest Rate Country Residents (as defined in
Section 2.01(f))] and (C) shall be sent to the Warrant Agent in writing at
its address as set forth in such form of Exercise Notice or at such other
address as the Warrant Agent may specify from time to time by notice given
in accordance with Section 8.05; and
(ii) in the case of any Certificated Warrant, shall (A) be in the form
of Exhibit B-2 hereto and shall, unless otherwise agreed by the Corporation
and the Warrant Agent, be set forth on the reverse of the Definitive
Warrant Certificate representing such Certificated Warrant, [(B) shall
include a certification by the Holder of such Certificated Warrants that
such Holder is not an Interest Rate Country Resident] and (C) shall be sent
to the Warrant Agent in writing at its address as set forth in such form of
Exercise Notice or at such other address as the Warrant Agent may specify
from time to time by notice given in accordance with Section 8.05.
(e) Except as provided in Section 2.02(c), the Warrant Agent and the
Corporation shall be entitled to rely conclusively on any Exercise Notice
received by the Warrant Agent with no duty of inquiry by either of them.
(f) As used in this Agreement, "New York Business Day" means any day
other than a Saturday or Sunday or a day on which the [New York Stock Exchange
or American Stock Exchange (list any other relevant securities exchanges)] is
not open for securities trading or banking institutions generally in The City of
New York are authorized or required
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by law or executive order to close; "Interest Rate Country Business Day" means
any day other than (i) a Saturday or Sunday or a day on which banking
institutions generally in [(specify name of Interest Rate country)] are
authorized or required by law or executive order to close or (ii) a day on which
the [(list names of relevant exchanges)] are not open for business[; and
"Interest Rate Country Resident" means a resident of, or any corporation or
other Person organized under the laws of [(specify name of Interest Rate
country)], its territories, its possessions or other areas subject to its
jurisdiction].
Section 2.02. Exercise of Warrants. (a) Except in the case of
automatic exercise as provided in Section 2.03 [or cancellation as provided in
Section 2.04] and subject to Section 2.02(c)([ii]) [and 2.02(f)], the exercise
date (the "Exercise Date") for a Warrant shall be (i) the New York Business Day
on which the Warrant Agent receives delivery of such Warrant to the Warrant
Account, in the case of Book-Entry Warrants, or of the Definitive Warrant
Certificate representing such Warrant at the Warrant Agent Office, in the case
of Certificated Warrants, [and] an Exercise Notice relating to such Warrant in
good order [and payment of the Exercise Price in the manner specified in Section
2.01(b)], if such receipt occurs at or prior to [3:00] P.M., New York City time,
on such New York Business Day, and (ii) otherwise the New York Business Day next
succeeding the day on which the Warrant Agent receives such Warrant[, the
Exercise Price] and such Exercise Notice, which next succeeding New York
Business Day shall be the day on which such Warrant[, Exercise Price] and
Exercise Notice shall be deemed to have been received. If any Exercise Notice[,
the related Exercise Price] or the Warrants to which such Exercise Notice
relates are received after [3:00] P.M., New York City time, on the Expiration
Date, such Exercise Notice shall be void and of no effect and shall be deemed
not to have been delivered. Except in the case of automatic exercise as
provided in Section 2.03, the "Valuation Date" for a Warrant shall be the first
Interest Rate Country Business Day next succeeding the Exercise Date of such
Warrant. [The "Designated Exercise Date" for a Warrant shall be the date that,
but for the provisions of Section 2.02(f), would be the Exercise Date for such
Warrant in accordance with this Section 2.02(a).]
[(b) Notwithstanding anything in this Agreement to the contrary, if a
Depository Participant, in the case of Book-Entry Warrants, or a Holder, in the
case of Certificated Warrants, has specified in its Exercise Notice that such
Exercise Notice is conditional (a "Conditional Exercise Notice"), then such
Conditional Exercise Notice
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shall be void and of no effect, and shall be disregarded for all purposes of
this Agreement, if [Describe the terms upon which the Exercise Notice may be
conditional, which may be as follows: the Spot Amount (as defined in Section
2.02(g)) on the day that, but for the provisions of this Section 2.02(b), would
be the Valuation Date for such Warrants is more than __________ [above] [below]
the Spot Amount on the [Designated] Exercise Date of such Warrants (or, if the
[Designated] Exercise Date is not an Interest Rate Country Business Day, on the
immediately preceding Interest Rate Country Business Day) (the "Reference
Value").]
(c) Following receipt of proper delivery of any Warrant[, the
Exercise Price] and the Exercise Notice related to such Warrant in accordance
with Section 2.01(b), the Warrant Agent shall:
[(i) deposit all funds received by it in payment of the Exercise Price
of such Warrant to the account of the Corporation maintained with it for
such purpose (unless otherwise instructed in writing by the Corporation),
and advise the Corporation by telephone and in writing, by facsimile
transmission or otherwise, at the end of each day on which any such payment
is received of the amount so deposited to its account;]
(ii)(A) in the case of a Book-Entry Warrant, promptly determine
whether such Exercise Notice has been duly completed and is in proper form
and verify that the Person that executed such Exercise Notice is listed as
a Depository Participant in the most recent published edition of the
Depository's Eligible Corporate Securities Book (or the comparable
publication of any successor Depository) and, if such Person is not listed
therein, make reasonable efforts to obtain verbal verification from the
Depository's Planning Department (telephone number 212-709-1000) (or the
comparable department of a successor Depository) that such Person is a
Depository Participant; and (B) in the case of a Certificated Warrant,
promptly determine whether such Exercise Notice has been duly completed and
is in proper form and whether the Definitive Warrant Certificate
representing such Warrant is in proper form;
(iii)(A) in the case of a Book-Entry Warrant, if the Warrant Agent
determines that such Exercise Notice has not been duly completed or is not
in proper form, or is unable through the procedures described in clause
([ii])(A) above to verify that the Person that submitted such Exercise
Notice is a Depository
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Participant, then the Warrant Agent shall reject such Exercise Notice and
shall send to the Depository Participant that submitted such Exercise
Notice a notice of rejection substantially in the form of Exhibit C hereto
(a "Rejection Notice") and redeliver the Warrants to which such rejected
Exercise Notice relates free through the facilities of the Depository to
the account from which they were transferred; and (B) in the case of a
Certificated Warrant, if the Warrant Agent determines that such Exercise
Notice has not been duly completed or is not in proper form, or that the
Definitive Warrant Certificate representing such Warrant is not in proper
form, then the Warrant Agent shall reject such Exercise Notice and shall
send a Rejection Notice to the Holder of such Warrants and return such
Definitive Warrant Certificate to such Holder by first class mail at the
expense of the Corporation;
(iv) by [5:00 P.M.], New York City time, on the New York Business Day
on which such Exercise Notice is received (or deemed to have been
received), notify the Corporation (and such other parties (not to exceed
two) as the Corporation shall designate in writing) of (A) the total number
of Warrants in respect of which Exercise Notices were received (or deemed
to have been received) at or prior to [3:00 P.M.], New York City time, on
such date [and] (B) the number of such Exercise Notices that were rejected
by the Warrant Agent pursuant to clause ([iii]) above and the aggregate
number of Warrants to which such rejected Exercise Notices relate[, and (C)
the number of such Exercise Notices that were Conditional Exercise Notices
and the aggregate number of Warrants to which such Conditional Exercise
Notices relate];
[(v) if any of such Exercise Notices are Conditional Exercise
Notices, by [5:00 P.M.], New York City time, on the Valuation Date for such
Warrants (or, if such Valuation Date is not a New York Business Day, on the
next succeeding New York Business Day), (A) determine the Reference Value
for such Warrants and the Spot Amount for the date that, but for the
provisions of Section 2.02(b), would be the Valuation Date of such
Warrants; (B) determine whether any Conditional Exercise Notices have
become void pursuant to such Section 2.02(b); and (C) if so, promptly
notify the Corporation (and such other parties (not to exceed two) as the
Corporation shall designate in writing) and send a Rejection Notice to the
appropriate Depository Participant or Holder, as the case may be, and (x)
in
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the case of Book-Entry Warrants, redeliver such Warrants free through the
facilities of the Depository to the account from which they were
transferred or (y) in the case of Certificated Warrants, return such
Warrants to such Holder by first class mail at the expense of the
Corporation.]
(vi) by [5:00 P.M.], New York City time, on the Valuation Date for
such Warrants (or, if such Valuation Date is not a New York Business Day,
on the next succeeding New York Business Day), determine the aggregate
number of Warrants covered by Exercise Notices that have not [become void
pursuant to Section 2.02(b) or] been rejected pursuant to clause ([iii])
above (the "[Exercised] [Tendered] Warrants");
[(vii) by [5:00 P.M.], New York City time, on the Valuation Date for
the Tendered Warrants (or, if such Valuation Date is not a New York
Business Day, on the next succeeding New York Business Day), determine
pursuant to Section 2.02(f) the number of such Tendered Warrants that shall
not be Delayed Exercise Warrants (such Tendered Warrants, the "Exercised
Warrants");]
(viii) by [5:00 P.M.], New York City time, on the Valuation Date for
the Exercised Warrants (or, if such Valuation Date is not a New York
Business Day, on the next succeeding New York Business Day), (A) determine
the Cash Settlement Value of the Exercised Warrants, (B) notify the
Corporation (and such other parties (not to exceed two) as the Corporation
shall designate in writing) of the aggregate Cash Settlement Value with
respect to such Exercised Warrants, and (C) send notice of confirmation of
exercise in substantially the form of Exhibit D hereto to the appropriate
Depository Participant or Holder, as the case may be; and
(ix) promptly deliver a copy of each such Exercise Notice to the
Corporation and advise the Corporation of such other matters relating to
any of the Warrants covered thereby, whether or not they constitute
[Tendered Warrants or] Exercised Warrants, as the Corporation shall
reasonably request.
(d) At or before [3:00 P.M.], New York City time, on the [fifth] New
York Business Day following the Valuation Date for any Exercised Warrants (or,
if such Valuation Date is not a New York Business Day, on the [sixth] New York
Business Day after such Valuation Date) (such date, with respect to such
Exercised Warrants, the "Settlement Date"), the Corporation shall make available
to the Warrant Agent
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funds in an amount equal to, and for the payment of, the aggregate Cash
Settlement Value of such Exercised Warrants. On the New York Business Day on
which the Corporation has made adequate funds available to the Warrant Agent at
or prior to [3:00 P.M.], New York City time, the Warrant Agent shall make
payment available (i) if the Exercised Warrants are Book-Entry Warrants, in the
form of a wire transfer to the appropriate Depository Participant after [3:00
P.M.], New York City time, but prior to the close of business, on such day, such
payment to be in the amount of the aggregate Cash Settlement Value of the
Exercised Warrants exercised by such Depository Participant, and (ii) if the
Exercised Warrants are Certificated Warrants, in the form of one or more
cashier's checks or official bank checks to each appropriate Holder after [3:00
P.M.], New York City time, but prior to the close of business, on such day, such
payment to be in the amount of the Cash Settlement Value of the Exercised
Warrants exercised by such Holder. In the case of payments by the Warrant Agent
to a Depository Participant, the Warrant Agent shall have no responsibility for
the crediting by such Depository Participant of the Cash Settlement Value of
such Warrants to the appropriate Owners.
(e) (i) The Warrant Agent shall cause its records, which may be kept
electronically, to be marked to reflect the reduction in the number of Warrants
evidenced by each Global Warrant Certificate by the number of such Warrants for
which payment has been made available as provided in Section 2.02(d) promptly
after such payment has been made available. In the absence of manifest error,
the Warrant Agent's records shall be conclusive evidence as to such matters.
(ii) If any Definitive Warrant Certificate shall be surrendered to the
Warrant Agent for exercise of fewer than all the Warrants represented thereby,
the Corporation shall execute, and the Warrant Agent shall countersign, as
provided in Section 1.02 or 1.03, as the case may be, and deliver to the Holder
of such Warrants by first class mail at the expense of the Corporation a new
Definitive Warrant Certificate of like tenor representing all Warrants remaining
unexercised after such exercise and bearing a number not contemporaneously
outstanding.
[(f) The Corporation may, at its sole option, elect to limit the
aggregate number of Warrants for which any Designated Exercise Date shall be the
Exercise Date to a number not less than ________________ (the "Maximum
Exercisable Number").
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(i) The Corporation may, at its sole option, notify the Warrant Agent
in writing (including by facsimile transmission) not later than [3:00
P.M.], New York City time, on the Valuation Date with respect to any
Tendered Warrants (or, if such Valuation Date is not a New York Business
Day, on the next succeeding New York Business Day), that the Corporation
has elected to exercise its option under this Section 2.02(f) to limit the
number of such Tendered Warrants for which the Exercise Date to which such
Valuation Date relates shall be the Designated Exercise Date for such
Warrants to a number (the "Elected Maximum Number") not smaller than the
Maximum Exercisable Number. If the Warrant Agent shall not have received
such notice by such time, none of the following provisions in this Section
2.02(f) shall apply to such Tendered Warrants, such Designated Exercise
Date shall be the Exercise Date for such Tendered Warrants, and all of such
Tendered Warrants shall be deemed to be "Exercised Warrants" for purposes
of this Agreement.
(ii) If the Warrant Agent shall have received the notice contemplated
by clause (i) above by the time specified in such clause (i), then prior to
[5:00 P.M.], New York City time, on such Valuation Date (or, if such
Valuation Date is not a New York Business Day, on the next succeeding New
York Business Day), the Warrant Agent shall select by lot from all such
Tendered Warrants, subject to clause (iii) below, Tendered Warrants for
which the Exercise Date shall be such Designated Exercise Date in an
aggregate number equal to the Elected Maximum Number; provided that if, as
a result of such selection, any Owner or Holder, as the case may be, would
be deemed to have exercised less than [(specify minimum exercise amount)]
Warrants, then the Warrant Agent shall first select additional Tendered
Warrants of such Owners or Holders so that no such Owner or Holder shall be
deemed to have exercised fewer than [(specify minimum exercise amount)]
Warrants. Only the Tendered Warrants so selected shall be deemed to be
"Exercised Warrants" for purposes of Section 2.02(c). The Tendered
Warrants not so selected shall be referred to herein as "Delayed Exercise
Warrants" and shall be subject to exercise as provided in clause (iii)
below.
(iii) For purposes of this Section 2.02, each Delayed Exercise
Warrant shall be deemed to have a new Designated Exercise Date on the New
York Business Day next succeeding its original Designated Exercise Date,
and this Section 2.02 shall apply to such Delayed
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Exercise Warrants as if one or more Exercise Notices with respect to the
Delayed Exercise Warrants had been received by the Warrant Agent prior to
[3:00 P.M.], New York City time, on such New York Business Day, provided
that (x) any Delayed Exercise Warrant with respect to which any such deemed
Designated Exercise Date is on or after the earlier of the Expiration Date
and the Delisting Date shall be subject to automatic exercise as provided
in Section 2.03[, and (y) the Reference Value for any Delayed Exercise
Warrant covered by a Conditional Exercise Notice shall in any event be
determined by reference to the original Designated Exercise Date therefor
(or, if such date is not an Interest Rate Country Business Day, on the
immediately preceding Interest Rate Country Business Day)]; provided,
however, that, other than in the case of automatic exercise [or
cancellation], if the aggregate number of such Delayed Exercise Warrants,
together with any additional Tendered Warrants for which the Designated
Exercise Date is such New York Business Day shall again exceed the Maximum
Exercisable Number, the provisions of this Section 2.02(f) shall apply,
mutatis mutandis, to the exercise of such Delayed Exercise Warrants and
such additional Tendered Warrants, provided that such Delayed Exercise
Warrants shall be given priority over such additional Tendered Warrants in
the selection pursuant to clause (ii) above, and among such Delayed
Exercise Warrants, priority in such selections shall be given to Warrants
in the order of their original Designated Exercise Dates, with Warrants
having the same original Designated Exercise Date being selected by lot as
described in clause (ii) above.
(iv) In connection with any issuance by the Corporation of additional
Warrants under this Agreement, the Corporation shall have the right, but
shall not be obligated, to increase the Maximum Exercisable Number.]
(g) For purposes of this Agreement:
The "Cash Settlement Value" of any Warrant that is exercised (whether
exercised automatically or by Exercise Notice) shall mean [_____ (specify
fraction)] of the U.S. dollar equivalent (rounded to the nearest dollar) of
the amount, if any, by which [(i) the Strike Amount (as defined below)
exceeds (ii) the Spot Amount on the Valuation Date with respect to such
Exercised Warrant] [(i) the Spot Amount on the Valuation Date with respect
to such Exercised Warrant exceeds (ii) the Strike Amount (as defined
below)]; provided that if
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such amount is less than zero, the Cash Settlement Value shall be zero.
The "Strike Amount" of a Warrant shall mean [Insert amount or method
for determining amount].
The "Spot Amount" on any date shall mean [Insert method for
determining amount].
The exchange rate (or manner of calculating such rate) for conversion
of the Cash Settlement Value, [the Cancellation Amount,] the Strike Amount,
the Spot Amount and/or the value of any [Debt Instrument] [instrument
underlying such Warrants], as applicable, into U.S. dollars shall be
[(specify such rate or manner of calculating such rate)] and shall be
determined by the Warrant Agent.
"U.S. dollars", "U.S.$" or "$" are references to the currency of the
United States of America.
"[Interest Rate currency] or "[_______________]" are references to the
currency of [(specify name of Interest Rate country)].
(h) Any notice to be given to the Corporation by the Warrant Agent
pursuant to this Section 2.02 or Section 2.03 shall be by telephone (promptly
confirmed in writing) or telecopy (receipt to be promptly confirmed by
telephone).
Section 2.03. Automatic Exercise of Warrants. (a) [Unless
previously canceled pursuant to Section 2.04,] all Warrants with respect to
which
(i) there has been no proper delivery of Warrants to the Warrant
Account, in the case of Book-Entry Warrants, or of Definitive Warrant
Certificates to the Warrant Agent Office, in the case of Certificated
Warrants[, or no delivery of the Exercise Price as provided in Section
2.01(b)] or no valid Exercise Notice has been received by the Warrant Agent
at or prior to [3:00 P.M.], New York City time, on the earlier to occur of
(A) the Expiration Date for such Warrants and (B) the last New York
Business Day prior to the effective date on which the Warrants are delisted
from, or permanently suspended from trading on, the __________ Stock
Exchange without being accepted for listing on or prior to such New York
Business Day on another United States national
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securities exchange (such New York Business Day, the "Delisting Date"),
(ii) the Exercise Date has been postponed pursuant to Section 2.02(f)
to a date on or after the earlier of the Expiration Date or the Delisting
Date,
[or (iii) [list other events causing automatic exercise of Warrants,
if applicable]]
will be automatically exercised on such Expiration Date or Delisting Date [or on
the date on which (specify other events leading to automatic exercise)] (any
such date, a "Deemed Exercise Date") without any requirement of notice of
exercise to the Warrant Agent. On the Deemed Exercise Date, all the Warrants
will be canceled and will represent only a right to receive the Cash Settlement
Value upon satisfaction of the requirements set forth in Section 2.03(b). The
Valuation Date for such Warrants shall be the first Interest Rate Country
Business Day next succeeding such Deemed Exercise Date.
(b) On the Valuation Date for the Warrants to be automatically
exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not
a New York Business Day, on the next succeeding New York Business Day), the
Warrant Agent shall (i) determine the Cash Settlement Value of such Warrants;
(ii) by [5:00 P.M.], New York City time, on such Valuation Date (or, if such
Valuation Date is not a New York Business Day, on the next succeeding New York
Business Day) notify the Corporation (and such other parties (not to exceed two)
as the Corporation shall designate in writing) of the Cash Settlement Value of
such Warrants; and (iii) advise the Corporation of such other matters relating
to the automatically exercised Warrants as the Corporation shall reasonably
request.
(c) At or before [3:00 P.M.], New York City time, on the [eighth] New
York Business Day following the Valuation Date for any Warrants automatically
exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not
a New York Business Day, on the [ninth] New York Business Day after such
Valuation Date) (such date, with respect to such Warrants, the "Settlement
Date"), the Corporation shall make available to the Warrant Agent funds in an
amount equal to, and for the payment of, [(y)] the aggregate Cash Settlement
Value of such automatically exercised Warrants [minus (y) the aggregate Exercise
Price with respect to such Warrants, provided that if such amount is less than
zero, no such funds shall be made available]. On the New York Business Day on
which the Corporation has
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made adequate funds available to the Warrant Agent at or prior to [3:00 P.M.],
New York City time, the Warrant Agent shall make payment available (i) if the
automatically exercised Warrants are Book-Entry Warrants, in the form of a wire
transfer to the appropriate Depository Participant after [3:00 P.M.], New York
City time, but prior to the close of business, on such day, such payment to be
in the amount of [(x)] the aggregate Cash Settlement Value of the Warrants held
at the time of automatic exercise by such Depository Participant [minus (y) the
aggregate Exercise Price with respect to such Warrants, provided that if such
amount is less than zero, then no such payment shall be made], and (ii) if the
automatically exercised Warrants are Certificated Warrants, in the form of one
or more cashier's checks or official bank checks to each appropriate Holder
after [3:00 P.M.], New York City time, but prior to the close of business, on
such day, such payment to be in the amount of [(x)] the Cash Settlement Value of
the Warrants registered in the name of such Holder on the date of automatic
exercise [minus (y) the aggregate Exercise Price with respect to such Warrants,
provided that if such amount is less than zero, then no such payment shall be
made]; provided, however, that the Warrant Agent shall withhold any such payment
in respect of any Warrant until the conditions set forth in Section 2.03(d) have
been satisfied with respect to such Warrant. In the case of payments by the
Warrant Agent to a Depository Participant, the Warrant Agent shall have no
responsibility for the crediting by such Depository Participant of the Cash
Settlement Value of such Warrants to the appropriate Owners.
(d) The Warrant Agent shall withhold payment of the Cash Settlement
Value with respect to any automatically exercised Warrant until:
(i) if such Warrant is a Book-Entry Warrant, [(A)] such Warrant is
delivered on the records of the Depository free to the Warrant Account [and
(B) the Warrant Agent receives at the Warrant Agent Office a written
certification substantially in the form of Exhibit E-1 hereto, dated no
earlier than the Deemed Exercise Date, executed by a Depository Participant
acting on behalf of the Owner of such Warrant, to the effect that such
Owner is not an Interest Rate Country Resident]; and
(ii) if such Warrant is a Certificated Warrant, [(A)] the Definitive
Warrant Certificate representing such Warrant is surrendered to the Warrant
Agent at the Warrant Agent Office, [and (B) the Warrant Agent receives at
the Warrant Agent Office a certification in
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the form of Exhibit E-2 hereto, dated no earlier than the Deemed Expiration
Date, to the effect that the Holder of such Definitive Warrant Certificate
is not an Interest Rate Country Resident].
(e) When payment has been made in respect of all Warrants represented
by a Warrant Certificate, the Warrant Agent shall, promptly upon receipt of such
Warrant Certificate, cancel such Warrant Certificate and deliver it to the
Corporation.
[Section 2.04. Cancellation of Warrants. (a) [insert conditions and
effects of cancellation, if applicable].]
(b) [The "Cancellation Amount" of a Warrant shall mean [Insert amount
or method for determining amount].]
[Section 2.05. Discontinuance or Modification of [Debt Instrument]
[Rate]. [(Insert appropriate provisions)].]
Section 2.06. Designation of Agent for Receipt of Notice. The
Corporation may from time to time designate in writing to the Warrant Agent a
single designee for receipt of all notices required to be given by the Warrant
Agent to the Corporation pursuant to this Article II and all such notices
thereafter shall be given in the manner herein provided by the Warrant Agent to
such designee and each such notice shall be as effective as if given directly to
the Corporation.
[Section 2.07. Extraordinary Events. [(Specify conditions and
effects of extraordinary events, if applicable)].]
[Section 2.08. Temporary Suspension of the Right to Exercise the
Warrants. [(Specify conditions and method of temporary suspension of right to
exercise, if applicable)].]
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders. (a) The Corporation, the
Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and
treat the Person in whose name each Global Warrant Certificate shall
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be registered in the records of the Warrant Agent as the absolute Holder of all
right, title and interest in such Global Warrant Certificate (notwithstanding
any notation of ownership or other writing thereon) for all purposes hereunder
and as the Person entitled to exercise the rights represented by the Warrants
evidenced thereby, whether or not such Warrants shall be exercised or deemed to
be exercised, and neither the Corporation nor the Warrant Agent, nor any agent
of the Corporation or the Warrant Agent shall be affected by any notice to the
contrary, except that the Warrant Agent and the Corporation shall be entitled to
rely on and act pursuant to instructions of Depository Participants as
contemplated by Article II of this Agreement.
(b) Prior to due presentment of a Definitive Warrant Certificate for
registration of transfer, the Corporation, the Warrant Agent and any agent of
the Corporation or the Warrant Agent may treat the Person in whose name such
Definitive Warrant Certificate is registered as the absolute Holder of all
right, title and interest in such Definitive Warrant Certificate
(notwithstanding any notation of ownership or other writing thereon) for all
purposes hereunder and as the Person entitled to exercise the rights represented
by the Warrants evidenced thereby, whether or not such Warrants shall be
exercised or deemed to be exercised, and neither the Corporation, the Warrant
Agent nor any agent of the Corporation or the Warrant Agent shall be affected by
notice to the contrary.
Section 3.02. Holder or Owner of Warrant May Enforce Rights.
Notwithstanding any other provision of this Agreement, any Owner, in the case of
Book-Entry Warrants, and any Holder, in the case of Certificated Warrants,
without the consent of the Warrant Agent or the Owner or Holder of any other
Warrant, may, in and for such Owner's or Holder's own behalf, and for such
Owner's or Holder's own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Corporation suitable to enforce, or
otherwise in respect of, such Owner's or Holder's right to exercise, and to
receive payment for, such Owner's or Holder's Warrants as provided in such
Warrants and in this Agreement.
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent. The Corporation hereby appoints [name
of Warrant Agent] as the Warrant Agent
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of the Corporation in respect of the Warrants upon the terms and subject to the
conditions set forth herein and in the Warrants, and [name of Warrant Agent]
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it herein and in the Warrants and such
further powers and authority acceptable to it to act on behalf of the
Corporation as the Corporation may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrants are subject to and governed by the terms and provisions hereof.
Section 4.02. Certain Duties of the Warrant Agent. (a) Except
during the continuation of a default in the performance by the Corporation of
its obligations in respect of the Warrants, the Warrant Agent undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Warrant Agent.
(b) No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 4.03. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations set forth herein upon and subject to the terms and
conditions hereof and of the Warrants, including the following, to all of which
the Corporation agrees and to all of which the rights hereunder of the Owners
and Holders from time to time of the Warrants shall be subject:
(a) The Corporation agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Corporation for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for its
reasonable out-of-pocket expenses, disbursements and advances (including
reasonable attorneys' fees and expenses and reasonable compensation,
expenses and disbursements of its agents) incurred by the Warrant Agent
without negligence, bad faith or breach of this Agreement on its part in
connection with the services rendered by it hereunder. The Corporation
also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense
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(including reasonable attorneys' fees and expenses) incurred without
negligence, bad faith or breach of this Agreement on the part of the
Warrant Agent, arising out of or in connection with its acting as such
Warrant Agent hereunder or with respect to the Warrants, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligations of the Corporation under this
subsection (a) shall survive the exercise of the Warrants and the
resignation or removal of the Warrant Agent.
(b) The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted or thing suffered by it in
reliance upon any Warrant, resolution, opinion, report, request, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been presented
or signed by the proper parties, provided that any request or direction of
the Corporation shall be sufficiently evidenced by a Corporation Order
delivered to the Warrant Agent, and any resolution of the Board of
Directors shall be sufficiently evidenced by a copy of the resolution
certified by the Secretary or an Assistant Secretary to have been duly
adopted by the Board of Directors of the Corporation, or by a committee of
such Board of Directors or an officer of the Corporation appointed by the
Board of Directors of the Corporation for such purpose, and to be in full
force and effect on the date of such certification and delivered to the
Warrant Agent (any such resolution, a "Board Resolution").
(c) The Warrant Agent may consult with counsel satisfactory to it,
which may include counsel to the Corporation, and the written opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such written opinion.
(d) The Warrant Agent shall not be bound to make any investigation
into the facts or matters stated in any Corporation Order or Board
Resolution, but the Warrant Agent, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
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(e) The Warrant Agent, and any of its officers, directors and
employees, in its individual or any other capacity, may become the Owner or
Holder of, or acquire any interest in, any Warrants or other obligations of
the Corporation, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Corporation and may act on, or as depositary, trustee
or agent for, any committee or body of Owners or Holders of Warrants or
other obligations of the Corporation as freely as if it were not the
Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest
on any monies at any time received by it pursuant to any of the provisions
of this Agreement or of the Warrants except as otherwise agreed with the
Corporation, nor shall it be obligated to segregate such monies from other
monies held by it, except as required by law.
(g) The Warrant Agent shall not be under any liability with respect
to the validity or sufficiency of this Agreement or the execution and
delivery hereof (except the due execution and delivery hereof by the
Warrant Agent) or with respect to the validity or execution of the Warrants
or the Warrant Certificates (except the countersignature thereof).
(h) The recitals contained herein and in the Warrants (except as to
the Warrant Agent's countersignature thereon) shall be taken as the
statements of the Corporation, and the Warrant Agent assumes no
responsibility for the correctness thereof.
(i) The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Corporation of any of the Warrant
Certificates countersigned by the Warrant Agent and delivered by it to the
Corporation pursuant to this Agreement or for the application by the
Corporation of any proceeds.
(j) The Warrant Agent shall have no duty or responsibility in case of
any default by the Corporation in the performance of its covenants or
agreements contained herein or in the Warrants or in the case of the
receipt of any written demand from an Owner or Holder of a Warrant with
respect to such default, including, without limitation, any duty or
responsibility to initiate or attempt to initiate any
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proceedings at law or otherwise or, except as provided in Section 8.03, to
make any demand upon the Corporation.
(k) In acting under this Agreement and in connection with the
Warrants, the Warrant Agent is acting solely as the agent of the
Corporation and does not assume any obligation or relationship of agency or
trust for or with any of the Owners or Holders of the Warrants.
Section 4.04. Compliance With Applicable Laws. The Warrant Agent
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Agreement and in
connection with the Warrants, including (but not limited to) the provisions of
United States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
Section 4.05. Corporate Warrant Agent Required; Eligibility. The
Corporation agrees, for the benefit of the Owners or Holders from time to time
of the Warrants, that there shall at all times be a Warrant Agent hereunder
until all of the Warrants have been exercised or are no longer exercisable,
which shall be a banking institution organized under the laws of the United
States of America or one of the states thereof and having an office or an
agent's office south of Chambers Street in the Borough of Manhattan, The City of
New York.
Section 4.06. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Warrant Agent and no appointment of a successor
Warrant Agent pursuant to this Section 4.06 shall become effective until the
acceptance of appointment by the successor Warrant Agent under Section 4.07.
(b) The Warrant Agent may resign at any time by giving written notice
of such resignation to the Corporation specifying such resignation and the date
on which it desires such resignation to become effective, provided that, without
the consent of the Corporation, such date shall not be less than 90 days after
the date on which such notice is given. If an instrument of acceptance by a
successor Warrant Agent shall not have been delivered to the Warrant Agent
within 90
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days after the giving of such notice of resignation, the resigning Warrant Agent
may petition any court of competent jurisdiction for the appointment of a
successor Warrant Agent with respect to the Warrants.
(c) The Corporation may remove the Warrant Agent at any time by
giving written notice thereof to the Warrant Agent specifying such removal and
the date on which the Corporation desires such removal to become effective.
(d) If at any time:
(i) the Warrant Agent shall cease to be eligible to act as such under
Section 4.05 and shall fail to resign after the Corporation shall have
delivered a written request therefor, or
(ii) the Warrant Agent shall become incapable of acting as such, or
shall be adjudged a bankrupt or insolvent, or shall file a voluntary
petition in bankruptcy or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or custodian of all
or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or an order of any court shall be entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy or
similar law, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, or
(iii) the Corporation shall elect to remove the Warrant Agent,
provided that no default shall then exist with respect to the Warrants,
then in any such case, the Corporation by a Board Resolution may remove the
Warrant Agent with respect to all the Warrants.
(e) If the Warrant Agent shall resign or be removed, or if a vacancy
shall occur in the office of the Warrant Agent for any other reason, the
Corporation, by a Board Resolution, shall promptly appoint a successor Warrant
Agent with respect to the Warrants, it being understood that at any time there
shall be only one Warrant Agent with respect to the Warrants.
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(f) The Corporation shall give notice to the Owners or Holders of the
Warrants of each resignation and each removal of the Warrant Agent and each
appointment of a successor Warrant Agent with respect to the Warrants in
accordance with Section 8.05. Each such notice shall include the name of the
successor Warrant Agent and the address of its Warrant Agent Office.
Section 4.07. Acceptance of Appointment by Successor. (a) If a
successor Warrant Agent is appointed hereunder, such successor Warrant Agent so
appointed shall execute, acknowledge and deliver to the Corporation and to the
retiring Warrant Agent an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Warrant Agent shall become effective
and such successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers and duties of the retiring
Warrant Agent; provided, however, that on the request of the Corporation or the
successor Warrant Agent, such retiring Warrant Agent shall, upon payment of its
charges and disbursements then unpaid, execute and deliver an instrument
transferring to such successor Warrant Agent all the rights and powers of the
retiring Warrant Agent and shall duly assign, transfer and deliver to such
successor Warrant Agent all property and money held by such retiring Warrant
Agent hereunder.
(b) Upon the request of any such successor Warrant Agent, the
Corporation shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Warrant Agent all such rights and
powers referred to in Section 4.07(a).
(c) No successor Warrant Agent shall accept its appointment, and no
such acceptance shall be effective, unless at the time of such acceptance such
successor Warrant Agent shall be qualified and eligible under this Article IV.
Section 4.08. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Warrant Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation succeeding to all or substantially all of the
business of the Warrant Agent, shall be the successor of the Warrant Agent
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided that such corporation shall be
otherwise qualified and eligible under this Article IV. If any Warrant
Certificates shall have been countersigned, but not delivered, by the Warrant
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Agent then in office, any successor by merger, conversion or consolidation to
such countersigning Warrant Agent may adopt such countersignature and deliver
the Warrant Certificates so countersigned with the same effect as if such
successor Warrant Agent had itself countersigned such Warrant Certificates.
ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the Corporation and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. (a) The
Corporation may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided
that, in any such case, (i) either the Corporation shall be the continuing
corporation, or the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a state thereof and
such successor corporation shall expressly assume, by Supplemental Agreement (as
defined in Section 6.01(a)) satisfactory to the Warrant Agent and executed and
delivered to the Warrant Agent by such corporation, the due and punctual payment
of the Cash Settlement Value [or Cancellation Amount, as the case may be,] with
respect to all unexercised Warrants, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Agreement to be performed by the Corporation, and (ii) the Corporation or
such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale, lease or conveyance, be in default
in the performance of any such covenant or condition. In case of any such
consolidation, merger, sale, lease or conveyance and upon such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Corporation, with the same effect as if it had been named
herein as such, and the predecessor Corporation, except in the event of a lease,
shall be relieved of any further obligation hereunder or under the Warrants.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Corporation, new Global Warrant
Certificates or Definitive Warrant Certificates, as the case may be,
representing Warrants not theretofore exercised, in exchange and substitution
for the Global Warrant Certificates and Definitive Warrant Certificates
theretofore issued; and upon the order of such successor corporation, instead of
the Corporation, and
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subject to all the terms, conditions and limitations in this Agreement
prescribed, the Warrant Agent shall countersign and shall deliver the new Global
Warrant Certificates or Definitive Warrant Certificates, as the case may be,
that such successor corporation shall have caused to be signed and delivered to
the Warrant Agent for countersignature. Such Global Warrant Certificates or
Definitive Warrant Certificates, as the case may be, shall in all respects have
the same legal rank and benefit under this Agreement as the Warrant Certificates
theretofore issued in accordance with the terms of this Agreement as though such
new Warrant Certificates had been issued at the date of issue of the Warrant
Certificates for which they are exchanged. In case of any such consolidation,
merger, sale, lease or conveyance, such changes in phraseology and form (but not
in substance) may be made in the new Warrant Certificates as may be appropriate.
(b) The Warrant Agent may receive a written opinion of counsel (who
may be an employee of the Corporation or other counsel acceptable to the Warrant
Agent) (an "Opinion of Counsel") as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption,
complies with the provisions of this Article V.
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Interest Rate Warrant Agreement. (a)
This Agreement and the Warrants may be amended by the Corporation, when
authorized by a Board Resolution, and the Warrant Agent (which amendment shall
take the form of a supplemental interest rate warrant agreement) (each, a
"Supplemental Agreement")), without the consent of the Owners or Holders of the
Warrants, for the purpose of:
(i) curing any ambiguity or of curing, correcting or supplementing
any defective or inconsistent provision contained herein or therein, or of
making any other provisions with respect to matters or questions arising
under this Agreement that shall not be inconsistent with the provisions of
this Agreement or the Warrants; or
(ii) evidencing the succession of another corporation to the
Corporation and the assumption by any such successor of the covenants of
the Corporation
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contained herein and in the Warrants in accordance with Article V; or
(iii) appointing a successor Depository in accordance with Section
1.01(e); or
(iv) evidencing and providing for the acceptance of appointment
hereunder by a successor Warrant Agent in accordance with Section 4.07; or
(v) adding to the covenants of the Corporation for the benefit of the
Owners or Holders of the Warrants or surrendering any right or power herein
conferred upon the Corporation; or
(vi) issuing Warrants in the form of Definitive Warrant Certificates
in accordance with Section 1.01(c); or
(vii) amending this Agreement and the Warrants in any manner that the
Corporation may deem to be necessary or desirable and that will not
materially and adversely affect the interests of the Owners or Holders of
the Warrants.
(b) The Corporation and the Warrant Agent may amend this Agreement
and the Warrants (which amendment shall take the form of a Supplemental
Agreement), with the consent of the Owners or Holders, as the case may be, of
not fewer than 66-2/3% in number of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Owners or Holders of the Warrants under this Agreement;
provided, however, that, without the consent of each Owner or Holder affected
thereby, no such amendment may be made that changes the determination of the
Cash Settlement Value [or Cancellation Amount, as the case may be,] of the
Warrants (or any aspects of such determination) so as to reduce the amount
receivable upon exercise or deemed exercise of the Warrants, shortens the period
of time during which the Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the Owners or Holders, as the case may
be, or reduces the number of unexercised Warrants the consent of the Owners or
Holders of which is required for amendment of this Agreement or the Warrants.
The Corporation and the Warrant Agent shall be entitled to rely upon
certification in form satisfactory to each of them that any requisite consent
has been obtained from the Owners of Warrants represented by a Global Warrant
Certificate. Such certification may be provided by
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Depository Participants acting on behalf of such Owners of Warrants, provided
that any such certification is accompanied by a certification from the
Depository as to the Global Warrant Certificate holdings of such Depository
Participants.
Section 6.02. Form of Approval of Supplemental Agreements by Owners
or Holders. It shall not be necessary for the Owners or Holders of the Warrants
to approve the particular form of any proposed Supplemental Agreement, but it
shall be sufficient if the Owners or Holders, as the case may be, shall approve
the substance of the Supplemental Agreement.
Section 6.03. Effect of Supplemental Agreements. Upon the execution
of any Supplemental Agreement under this Article, this Agreement shall be
modified in accordance therewith, such Supplemental Agreement shall form a part
of this Agreement for all purposes, and, subject to the proviso to the first
sentence of Section 6.01(b), every Owner or Holder of Warrants theretofore or
thereafter countersigned and delivered hereunder shall be bound thereby.
Section 6.04. Reference in Warrants to Supplemental Agreements.
Warrants countersigned and delivered after the execution of any Supplemental
Agreement pursuant to this Article may, and shall if required by the Warrant
Agent, bear a notation in form approved by the Warrant Agent as to any matter
provided for in such Supplemental Agreement. If the Corporation shall so
determine, new Warrants so modified as to conform, in the opinion of the Warrant
Agent and the Corporation, to any such Supplemental Agreement may be prepared
and executed by the Corporation and countersigned and delivered by the Warrant
Agent in exchange for unexercised Warrants.
ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Listing of Warrants on National Securities Exchange.
(a) The Corporation covenants, for the benefit of the Owners or Holders of the
Warrants, as the case may be, that (i) it will seek to obtain the listing of the
Warrants on [name of national securities exchange] and (ii) until the Expiration
Date, it will not seek the delisting of the Warrants from, or permanent
suspension of their trading on, [name of national securities exchange] unless
prior to such delisting or suspension the Warrants
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shall have been listed, and shall be trading, on another national securities
exchange.
(b) The Corporation shall advise the Warrant Agent of the date of any
expected delisting or permanent suspension of trading of the Warrants as soon as
is practicable and will immediately inform the Warrant Agent after the
Corporation has received notice that such delisting or suspension has occurred,
but in no event shall notice of such delisting or suspension be given to the
Warrant Agent later than [3:00 P.M.], New York City time, on the fifth New York
Business Day preceding the date that such delisting or suspension occurs.
(c) The Corporation shall notify the Owners or Holders of the
Warrants in accordance with Section 8.05 as promptly as is practicable of any
expected delisting or suspension of trading of the Warrants.
Section 7.02. Governmental Approvals. The Corporation shall from
time to time take all reasonable action necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and the [name of national securities exchange], and shall make all
filings under United States federal and state laws, that may be or become
requisite in connection with the issuance, sale, trading, transfer, delivery or
exercise of the Warrants, each Global Warrant Certificate and each Definitive
Warrant Certificate.
Section 7.03. Payment of Cash Settlement Value [or Cancellation
Amount]. The Corporation agrees, for the benefit of the Owners or Holders of
the Warrants, that it will duly and punctually pay the Cash Settlement Value [or
Cancellation Amount, as the case may be,] on each Warrant in accordance with the
terms of the Warrants and this Agreement, and that the right of each such Owner
or Holder, as the case may be, to receive payment of the Cash Settlement Amount
[or Cancellation Amount, as the case may be,] on such Warrant when such amount
is due and payable shall be absolute and unconditional.
Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys. (a)
The Corporation shall maintain an office and agency at which the Warrants may be
presented or surrendered for exercise or registration of transfer or exchange or
cancellation and where notices and demands to or upon the Corporation in respect
of the Warrants and this Agreement may be served, which office and agency shall
be the same as the location of the Warrant Agent Office, and the Corporation
hereby appoints the Warrant Agent as its
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agent to receive all such presentations, surrenders, notices and demands.
(b) The Corporation shall, on or prior to each due date of the Cash
Settlement Value [or Cancellation Amount, as the case may be,] on any Warrant,
deposit with the Warrant Agent a sum sufficient to pay the Cash Settlement Value
[or Cancellation Amount, as the case may be,] so becoming due, such sum to be
held for the benefit of the Persons entitled to such Cash Settlement Value [or
Cancellation Amount, as the case may be].
(c) Any money deposited with the Warrant Agent for the payment of the
Cash Settlement Value [or Cancellation Amount, as the case may be,] on any
Warrant and remaining unclaimed for three years after such Cash Settlement Value
[or Cancellation Amount, as the case may be,] has become due and payable, shall
be paid to the Corporation, at the request of the Corporation, and the Person
entitled to such money shall thereafter, as an unsecured general creditor, look
only to the Corporation for payment thereof, and all liability of the Warrant
Agent with respect to such money shall thereupon cease; provided, however, that
the Warrant Agent, before being required to make any such repayment, may at the
expense of the Corporation, cause notice to be given in accordance with Section
8.05 to the Person entitled to such money that such money remains unclaimed and
that, after a date specified therein, which shall be not less than 30 days from
the date of such notice, any unclaimed balance of such money then remaining will
be repaid to the Corporation.
Section 7.05. Corporate Existence. Subject to Article V, the
Corporation shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Corporation shall not be
required to preserve any right or franchise if its Board of Directors or a
committee thereof shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Corporation and that the loss
thereof is not disadvantageous in any material respect to the Owners or Holders
of the Warrants, as the case may be.
-37-
<PAGE>
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants. The Corporation may,
from time to time, issue additional Warrants under this Agreement. All Warrants
issued hereunder, from and after the date they are issued, shall be identical.
Section 8.02. Payment of Taxes. The Corporation shall pay all
documentary stamp taxes attributable to the initial issuance of Warrants;
provided, however, that the Corporation shall not be required to pay any tax or
other governmental charge that may be payable in respect of any transfer
involving any beneficial or record interest in or ownership interest of any
Warrants.
Section 8.03. Notices and Demands to the Corporation and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Corporation by any Owner or Holder pursuant to the provisions of the Warrants,
the Warrant Agent shall promptly forward such notice or demand to the
Corporation.
Section 8.04. Addresses for Notices. Any communications from the
Corporation to the Warrant Agent with respect to this Agreement shall be
addressed to [name of Warrant Agent], [address] (facsimile: (___) ___-____)
(telephone: (___) ___-____), Attention: [Corporate Trust Department]; any
communications from the Warrant Agent to the Corporation with respect to this
Agreement shall be addressed to Bankers Trust New York Corporation, 280 Park
Avenue, New York, New York 10017 (facsimile: (212) ___-____) (telephone:
(212) ___-____), Attention: [________________] (or, in either case, at such
other address as shall be specified in writing to the other by the Warrant Agent
or the Corporation, as the case may be).
Section 8.05. Notices to Owners and Holders. The Corporation or the
Warrant Agent shall give any notice to be given to the Owners of Book-Entry
Warrants by providing the Depository with a form of notice to be distributed by
the Depository to Depository Participants in accordance with the customs and
practices of the Depository. The Corporation or the Warrant Agent shall give
notice to the Holders of Certificated Warrants by mailing written notice by
first class mail, postage prepaid, to such Holders as their names and addresses
appear in the Warrant Register.
-38-
<PAGE>
SECTION 8.06. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT ISSUED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Section 8.07. Benefits of Interest Rate Warrant Agreement. Nothing
in this Agreement or in the Warrants expressed or implied and nothing that may
be inferred from any of the provisions hereof or thereof is intended, or shall
be construed, to confer upon, or give to, any Person other than the Corporation,
the Warrant Agent and their respective successors and assigns, and the Owners or
Holders of the Warrants, as the case may be, any right, remedy or claim under or
by reason of this Agreement or the Warrants or of any covenant, condition,
stipulation, promise or agreement hereof or thereof, and all covenants,
conditions, stipulations, promises and agreements contained in this Agreement or
in the Warrants shall be for the sole and exclusive benefit of the Corporation
and the Warrant Agent and their respective successors and assigns and of the
Owners or Holders of the Warrants, as the case may be.
Section 8.08. Successors and Assigns. All covenants and agreements
in this Agreement by the Corporation shall bind its successors and assigns,
whether so expressed or not.
Section 8.09. Interest Rate Warrant Agreement and Warrants Solely
Corporate Obligations. No recourse for the payment of the Cash Settlement Value
[or Cancellation Amount, as the case may be,] of any Warrant or for any claim
based on any Warrant or this Agreement shall be had against any director or
officer or stockholder, past, present or future, of the Corporation. Any such
claim against any such Person is expressly waived as a condition of, and as
consideration for, the execution and delivery of this Agreement and the issue of
the Warrants.
Section 8.10. Severability. If any provision in this Agreement or in
the Warrants shall be invalid, illegal, or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions, or of
such provisions in any other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 8.11. Headings. The descriptive headings of the several
Articles and Sections and the Table of Contents of this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
-39-
<PAGE>
Section 8.12. Counterparts. This Agreement may be executed by the
parties hereto in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 8.13. Inspection of Interest Rate Warrant Agreement. A copy
of this Agreement shall be available at all reasonable times at the Warrant
Agent Office for inspection by the Owners or Holders of the Warrants, as the
case may be, the Depository Participants and the Indirect Participants. In the
case of Certificated Warrants, the Warrant Agent may require the Holder of such
Warrant to submit such Holder's Warrant Certificate for inspection by the
Warrant Agent.
-40-
<PAGE>
IN WITNESS WHEREOF, this Interest Rate Warrant Agreement has been duly
executed by the parties hereto as of the day and year first above written.
BANKERS TRUST NEW YORK CORPORATION
By:___________________________
Name:
Title:
[SEAL]
Attest:
___________________________
[Assistant] Secretary
[NAME OF WARRANT AGENT], as Warrant Agent
By:___________________________
Name:
Title:
[SEAL]
Attest:
_____________________________
[Assistant Secretary]
-41-
<PAGE>
EXHIBIT A
[WARRANTS EVIDENCED BY THIS WARRANT CERTIFICATE CANNOT
BE EXERCISED PRIOR TO ________ __, 199__.]
[NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE WARRANT AGENT HAS RECEIVED
THE CERTIFICATION DESCRIBED IN THE INTEREST
RATE WARRANT AGREEMENT]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER [3:00 P.M.], NEW YORK CITY TIME,
ON ________ __, 199__
No. _________ CUSIP No. ____________
GLOBAL WARRANT CERTIFICATE
representing
________ Interest Rate [Put/Call] Warrants
Expiring ________ __, 199__
BANKERS TRUST NEW YORK CORPORATION
This certifies that [______________] or registered assigns is the
registered holder of [insert number initially issued] Interest Rate [Put/Call]
Warrants (the "Warrants"), or such lesser amount as is indicated in the records
of [name of Warrant Agent], as Warrant Agent. Each Warrant entitles the
[beneficial owner thereof (an "Owner")] [registered holder thereof (a
"Holder")], subject to the provisions contained herein and in the Interest Rate
Warrant Agreement referred to below, to receive from Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), the Cash Settlement
Value (as defined below) [or Cancellation Amount (as defined below), as the case
may be,] thereof in [U.S. dollars (specify other currency if applicable)], as
further described below. [No exercise price shall be payable by any Holder or
Owner in connection with the exercise of any Warrant.] [The exercise price for
each Warrant shall be $_____ and shall be payable in [U.S. dollars (specify
other currency if applicable)] (the "Exercise Price").] In no event shall any
[Owner] [Holder] be entitled to any interest on the Cash Settlement Value [or
Cancellation Amount] (unless the Corporation shall default in the payment of
such Cash Settlement Value).
Subject to the terms of the Interest Rate Warrant Agreement, each
Warrant may be exercised or deemed to be
A-1
<PAGE>
exercised in whole but not in part on any New York Business Day (as defined
below) from [the date of issuance (specify other date if applicable)] until
[3:00 P.M.], New York City time, on the earlie[st] of (i) [_________ (specify
date upon which right to exercise Warrants expires)] or, if such date is not a
New York Business Day, on the next succeeding New York Business Day (the
"Expiration Date"), [or] (ii) the date of automatic exercise [or (iii) the date
of cancellation], as further described below and as provided in the Interest
Rate Warrant Agreement. Except in the case of automatic exercise or any
exercise on the Expiration Date, not fewer than [(specify minimum exercise
amount)] [nor more than [(specify maximum exercise amount)] Warrants may be
exercised by or on behalf of any one [Owner] [Holder] at any one time.
References herein to "U.S. dollars", "U.S.$" or "$" are references to the
currency of the United States of America. References to "[(insert name of
Interest Rate currency)]" or "[_______]" are references to the currency of [name
of Interest Rate country]. As used herein, the term "New York Business Day"
means any day other than a Saturday or Sunday or a day on which the New York
Stock Exchange or the American Stock Exchange [or (list any other relevant
securities exchanges)] is not open for securities trading or banking
institutions generally in The City of New York are authorized or required by law
or executive order to close; "Interest Rate Country Business Day" means any day
other than (i) a Saturday or a Sunday or a day on which banking institutions
generally in [(specify name of Interest Rate country)] are authorized or
required by law or executive order to close or (ii) a day on which the [names of
relevant stock exchanges] are not open for business[; and "Interest Rate Country
Resident" means a resident of, or any corporation or other Person organized
under the laws of [(specify name of Interest Rate country)], its territories,
its possessions or other areas subject to its jurisdiction].
This [Global] [Definitive] Warrant Certificate is issued under and in
accordance with the Interest Rate Warrant Agreement, dated as of ________ __,
199__ (the "Interest Rate Warrant Agreement"), between the Corporation and the
Warrant Agent, and is subject to the terms and provisions contained in the
Interest Rate Warrant Agreement, to all of which terms and provisions all
[Owners] [Holders] of the Warrants represented by this [Global] [Definitive]
Warrant Certificate [and the Holder of this Global Warrant Certificate] consent
by acceptance hereof [by the Depository (as defined below)]. Copies of the
Interest Rate Warrant Agreement are on file at the Warrant Agent Office at
______________, New York, New York, _____, Attention: Corporate Trust
Department, or at such other office as may be specified in a notice given to the
[Owners] [Holders] of
A-2
<PAGE>
the Warrants. [Except as provided in the Interest Rate Warrant Agreement,
Owners will not be entitled to receive definitive certificates evidencing their
Warrants. Warrant holdings will be held through a depository selected by the
Corporation, which initially is [The Depository Trust Company], or its agent
(the "Depository", which term, as used herein, includes any successor depository
selected by the Corporation) as further provided in the Interest Rate Warrant
Agreement.]
Capitalized terms included herein but not defined herein have the
meanings assigned to them in the Interest Rate Warrant Agreement.
The Cash Settlement Value of any Exercised Warrants (whether exercised
automatically or by Exercise Notice) shall mean [__________________ (specify
fraction)] of the U.S. dollar equivalent (rounded to the nearest dollar) of the
amount, if any, by which [(i) the Strike Amount (as defined below) exceeds (ii)
the Spot Amount (as defined below) on the Valuation Date (as defined below) with
respect to such Exercised Warrant] [the amount, if any, by which (i) the Spot
Amount (as defined below) on the Valuation Date (as defined below) with respect
to such Exercised Warrant exceeds (ii) the Strike Amount (as defined below)];
provided that if such amount is less than zero, the Cash Settlement Value shall
be zero. [The Cancellation Amount of any Exercised Warrants shall mean [Insert
method for determining amount].] The "Spot Amount" on any date shall mean
[Insert amount or method for determining amount]. The "Strike Amount" of any
Exercised Warrant shall mean [Insert amount or method for determining amount].
The exchange rate (or manner of calculating such rate) for conversion of the
Cash Settlement Value, [the Cancellation Amount,] the Strike Amount, the Spot
Amount and/or the value of [Debt Instruments] [instruments underlying such
Warrants], as applicable, into U.S. dollars shall be [_____________ (specify
such rate or manner of calculating such rate)] and shall be determined by the
Warrant Agent.
Except in the case of automatic exercise [or cancellation] as further
provided below and in the Interest Rate Warrant Agreement, and subject to any
Maximum Exercisable Number of Warrants, the "Valuation Date" for any Warrant
shall be the first Interest Rate Country Business Day next succeeding the
"Exercise Date", which shall be the New York Business Day on which the Warrant
Agent has received (i) delivery of [such Warrant on the records of the
Depository free to the Warrant Account] [the Definitive Warrant Certificate
representing such Warrant at the Warrant Agent Office][, (ii) the Exercise
Price] and ([iii]) an
A-3
<PAGE>
Exercise Notice for such Warrant in good order in the form of [Exhibit B-1]
[Exhibit B-2] to the Interest Rate Warrant Agreement, [which shall include
certification that the [exercising Owner] [Holder] is not an Interest Rate
Country Resident,] at or prior to [3:00 P.M.], New York City time; provided that
if the Warrant Agent receives such Warrant[, the Exercise Price] or the Exercise
Notice after [3:00 P.M.] on such day, the "Exercise Date" shall be the next
succeeding New York Business Day and such Warrant[, Exercise Price] and Exercise
Notice shall be deemed to have been received on such next succeeding New York
Business Day. Any delivery of a Warrant or Exercise Notice received after [3:00
P.M.], New York City time, on the Expiration Date shall be void and of no effect
and shall be deemed not to have been delivered. [A [Depository Participant]
[Holder] may specify in its irrevocable Exercise Notice in relation to a Warrant
that such Exercise Notice is conditional (a "Conditional Exercise Notice"), and
in such case such Conditional Exercise Notice shall be void and of no effect and
shall be disregarded for all purposes of the Interest Rate Warrant Agreement if
[Describe the terms upon which the Exercise Notice may be conditional, which may
be as follows: the Spot Amount on the day that, but for the provisions of this
sentence, would be the Valuation Date for such Warrant is more than
[_________________] [above] [below] the Spot Amount on the [Designated] Exercise
Date of such Warrants (or, if such date is not an Interest Rate Country Business
Day, on the immediately preceding Interest Rate Country Business Day) (the
"Reference Value").]
By [5:00 P.M.], New York City time, on the New York Business Day on
which such Exercise Notice is received (or deemed to have been received), the
Warrant Agent shall notify the Corporation (and such other parties (not to
exceed two) as the Corporation shall designate in writing) of the number of
Warrants in respect of which Exercise Notices, not rejected pursuant to the
Interest Rate Warrant Agreement, were received (or deemed to have been received)
at or prior to [3:00 P.M.], New York City time, on such date, the number of such
Exercise Notices that were rejected by the Warrant Agent pursuant to the
Interest Rate Warrant Agreement and the number of Warrants to which such
rejected Exercise Notices relate [and the number of such Exercise Notices that
were Conditional Exercise Notices (and the number of Warrants to which such
Conditional Exercise Notices relate)]. By [5:00 P.M.], New York City time, on
the Valuation Date for such Warrants (or if such Valuation Date is not a New
York Business Day, then the next succeeding New York Business Day), the Warrant
Agent shall (i) [(x) after obtaining the Reference Value and the Spot Amount for
such Valuation Date, determine whether any
A-4
<PAGE>
Conditional Exercise Notices have become void pursuant to Section 2.02(b) of the
Interest Rate Warrant Agreement, and if so, promptly notify the Corporation (and
such other parties (not to exceed two) as the Corporation shall designate in
writing) and send a Rejection Notice in the form of Exhibit C to the Interest
Rate Warrant Agreement to the appropriate [Depository Participant] [Holder] and
redeliver such Warrants to such [Depository Participant] [Holder] as provided in
the Interest Rate Warrant Agreement and (y)] determine the aggregate number of
[Tendered] [Exercised] Warrants, (ii) [determine pursuant to Section 2.02(f) of
the Interest Rate Warrant Agreement the number of such Tendered Warrants which
shall be Exercised Warrants, (iii)] determine the Cash Settlement Value (in the
manner provided in Section 2.02(h) of the Interest Rate Warrant Agreement) of
the Exercised Warrants, (iv) notify the Corporation (and such other parties (not
to exceed two) as the Corporation shall designate in writing) of the Cash
Settlement Value with respect to such Warrants, (v) send notice of confirmation
of exercise in substantially the form of Exhibit D to the Interest Rate Warrant
Agreement to the appropriate [Depository Participant] [Holder] and (vi) notify
the Corporation (and such other parties (not to exceed two) as the Corporation
shall designate in writing) of such other matters relating to the Exercised
Warrants as the Corporation shall reasonably request.
If the Corporation has made adequate funds available to the Warrant
Agent in a timely manner as provided in the Interest Rate Warrant Agreement, the
Warrant Agent will make payment in the form of a wire transfer to the
appropriate Depository Participant on the [fifth] New York Business Day
following the Valuation Date (or, if such Valuation Date is not a New York
Business Day, on the [sixth] New York Business Day after such Valuation Date)
(the "Settlement Date"), all as provided in the Interest Rate Warrant Agreement,
such payment to be in the amount of the Cash Settlement Value in respect of
Exercised Warrants exercised by such Depository Participant. [The Warrant Agent
shall have no responsibility for the crediting by such Depository Participant of
the Cash Settlement Value of such Warrants to the appropriate Owners.]
[The Warrant Agent will cause its records to be marked to reflect the
reduction in the number of Warrants represented by this Global Warrant
Certificate by the number of Warrants for which payment has been made in
accordance with the Interest Rate Warrant Agreement.] [If this Definitive
Warrant Certificate shall be surrendered to the Warrant Agent for exercise of
fewer than all the Warrants represented hereby, the Warrant Agent shall issue
and
A-5
<PAGE>
deliver to the Holder of the Warrants represented hereby by first class mail at
the expense of the Corporation a Definitive Warrant Certificate representing all
Warrants remaining unexercised after such exercise.]
All Warrants with respect to which (i) there has been no proper
delivery of Warrants to the Warrant Account and no valid Exercise Notice has
been received by the Warrant Agent at or prior to [3:00 P.M.], New York City
time, on the earlier to occur of (A) the Expiration Date for such Warrants and
(B) the last New York Business Day prior to the effective date on which the
Warrants are delisting from, or permanently suspended from trading on, the [name
of national securities exchange] without being accepted for listing on or prior
to such New York Business Day on another United States national securities
exchange (such New York Business Day, the "Delisting Date"), (ii) the Exercise
Date has been postponed pursuant to Section 2.02(f) of the Interest Rate Warrant
Agreement to a date on or after the earlier of the Expiration Date and the
Delisting Date, [or (iii) list other events causing automatic exercise of
Warrants, if applicable] will be automatically exercised on such Expiration Date
or Delisting Date [or on the date on which (list other dates of automatic
exercise)] (any such date, a "Deemed Exercise Date") without any requirement of
notice of exercise to the Warrant Agent. The Valuation Date for such Warrants
shall be the first Interest Rate Country Business Day following such Deemed
Exercise Date.
If the Corporation has made adequate funds available to the Warrant
Agent in a timely manner as set forth in the Interest Rate Warrant Agreement,
the Warrant Agent will make its payment available in the form of [a wire
transfer to the appropriate Depository Participant] [one or more cashier's
checks or official bank checks to the appropriate Holder] in the amount of [(x)]
the Cash Settlement Amount with respect to each Warrant [minus (y) the Exercise
Price], after [3:00 P.M.], New York City time, but prior to the close of
business, on the [eighth] New York Business Day following the Valuation Date for
such automatically exercised Warrants (or, if such Valuation Date is not a New
York Business Day, on the [ninth] New York Business Day after such Valuation
Date), such payment to be in the amount of the aggregate Cash Settlement Value
in respect of Warrants that have been automatically exercised, all as provided
in the Interest Rate Warrant Agreement; provided, however, that the Warrant
Agent shall withhold any such payment with respect to any Warrants for which the
Warrant Agent has not received [(i)] the related Warrants through transfer of
such Warrants to the Warrant Account[, and (ii) certification that the Owner of
such Warrants is
A-6
<PAGE>
not an Interest Rate Country Resident, dated no earlier than the Deemed
Expiration Date and in the form of Exhibit E-1 to the Interest Rate Warrant
Agreement]. When payment has been made in respect of all automatically
exercised Warrants represented by this Warrant Certificate, the Warrant Agent
shall, promptly upon receipt cancel this Warrant Certificate and deliver it to
the Corporation.
[(Insert provisions relating to discontinuation or modification of
Rate or Debt Instrument)]
The Corporation, the Warrant Agent and any agent of the Corporation or
the Warrant Agent may deem and treat the registered Holder hereof as the
absolute Holder of all right, title and interest in the Warrants evidenced
hereby (notwithstanding any notation of ownership or other writing hereon) for
any purpose and as the Person entitled to exercise the rights represented by the
Warrants evidenced hereby, and neither the Corporation nor the Warrant Agent nor
any agent of the Corporation or the Warrant Agent shall be affected by any
notice to the contrary, except that the Corporation and the Warrant Agent shall
be entitled to rely on and act pursuant to instructions of Depository
Participants as contemplated herein and in the Interest Rate Warrant Agreement.
Subject to the terms of the Interest Rate Warrant Agreement, upon due
presentment for registration of transfer or exchange of this [Global]
[Definitive] Warrant Certificate at the Warrant Agent Office, the Corporation
shall execute and the Warrant Agent shall countersign and deliver in the name of
the designated transferee a new [Global] [Definitive] Warrant Certificate or
[Global] [Definitive] Warrant Certificates of like tenor and representing in the
aggregate a like number of unexercised Warrants as evidenced by this [Global]
[Definitive] Warrant Certificate at the time of such registration of transfer,
which shall be issued to the designated transferee in exchange for this [Global]
[Definitive] Warrant Certificate, subject to the limitations provided in the
Interest Rate Warrant Agreement, without charge.
This [Global] [Definitive] Warrant Certificate and the Interest Rate
Warrant Agreement are subject to amendment as provided in the Interest Rate
Warrant Agreement.
THIS [GLOBAL] [DEFINITIVE] WARRANT CERTIFICATE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
A-7
<PAGE>
This [Global] [Definitive] Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
Dated as of ________ __, 199__
BANKERS TRUST NEW YORK CORPORATION
By:___________________________
Name:
Title:
[SEAL]
Attest:_______________________
Name:
Title:
Countersigned on the date
above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
A-8
<PAGE>
EXHIBIT B-1
Form of Exercise Notice
for Warrants Represented by a Global Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation Interest Rate
[Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants")
1. We refer to the Interest Rate Warrant Agreement, dated as of
________ __, 199__ (the "Interest Rate Warrant Agreement"), between Bankers
Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as
Warrant Agent (the "Warrant Agent"). On behalf of certain beneficial owners,
each of whom is exercising no fewer than [__________] Warrants covered by this
Notice and whose Warrants are held through the Depository in our name, we hereby
irrevocably exercise [_____________] Warrants (the "Tendered Warrants").
2. This Exercise Notice [is] [is not] a Conditional Exercise Notice.
[We hereby acknowledge that a Conditional Exercise Notice will be void and of no
effect (and shall be disregarded for all purposes under the Interest Rate
Warrant Agreement) if the Spot Amount on the date that, but for the provisions
of Section 2.02(b) of the Interest Rate Warrant Agreement, would be the
Valuation Date for the Warrants is more than [__________] [above] [below] the
Spot Amount on the [Designated] Exercise Date (or, if the [Designated] Exercise
Date is not an Interest Rate Country Business Day, on the immediately preceding
Interest Rate Country Business Day).]
3. We have instructed the Depository to deliver the Exercised
Warrants free through the Depository to the Warrant Account [Account No.
_______________])[, and we have made payment of the Exercise Price as provided
in Section 2.01(b) of the Interest Rate Warrant Agreement].
4. We hereby acknowledge that this Exercise Notice[, the Exercise
Price] and the Tendered Warrants must be received by you by [3:00 P.M.], New
York City time, on a New York Business Day in order for the Valuation Date of
the
<PAGE>
Tendered Warrants to be the Interest Rate Country Business Day next succeeding
such New York Business Day, and that if this Exercise Notice[, the Exercise
Price] or the Tendered Warrants are received by you after [3:00 P.M.], New York
City time, but prior to the close of business on a New York Business Day, the
Valuation Date of the Tendered Warrants shall be the Interest Rate Country
Business Day next succeeding the first New York Business Day following the day
on which this Exercise Notice[, the Exercise Price] and the Tendered Warrants
are received. [We further acknowledge that if this Conditional Exercise
Notice[, the Exercise Price] or the Tendered Warrants are received by you after
[3:00] P.M., New York City time, but prior to the close of business on a New
York Business Day, that for purposes of making the determinations required by
such Conditional Exercise Notice, the Warrants will be deemed to be exercised on
the New York Business Day next succeeding the day on which this Exercise
Notice[, the Exercise Price] and the Tendered Warrants are received.]
5. We hereby certify that we are a participant of [The Depository
Trust Company] (the "Depository") with the present right to use and receive its
services.
6. We hereby acknowledge that if you determine that this Exercise
Notice has not been duly completed, or is not in proper form, or you are unable
to verify that we are a participant of the Depository as provided above, this
Exercise Notice will be void and of no effect and will be deemed not to have
been delivered.
7. We hereby direct you to make payment to us of amounts payable to
the beneficial owners of the Tendered Warrants as a result of the exercise of
the Tendered Warrants hereunder as follows:
[ ] By cashier's check or an official bank
check;
or
[ ] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank:_________________________________
Account No.:__________________________
ABA Routing No.:______________________
B-1-2
<PAGE>
Reference:____________________________
[8. We hereby certify that none of the clients on whose behalf we are
exercising the above referenced Warrants are Interest Rate Country Residents.]
Capitalized terms used herein and not defined have the meanings
assigned to them in the Interest Rate Warrant Agreement.
Dated: ________ __, 199__
[NAME OF DEPOSITORY
PARTICIPANT]
[Participant Number]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-1-3
<PAGE>
EXHIBIT B-2
Form of Exercise Notice
for Warrants Represented by a Definitive Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation Interest Rate
[Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants")
1. We refer to the Interest Rate Warrant Agreement, dated as of
________ __, 199__ (the "Interest Rate Warrant Agreement"), between Bankers
Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as
Warrant Agent (the "Warrant Agent"). We hereby irrevocably exercise
[_____________] Warrants (the "Tendered Warrants") and deliver to you herewith a
Definitive Warrant Certificate or Certificates, registered in the name of the
undersigned, representing a number of Warrants at least equal to the number of
Exercised Warrants [and payment of the Exercise Price as provided in Section
2.01(b) of the Interest Rate Warrant Agreement].
2. This Exercise Notice [is] [is not] a Conditional Exercise Notice.
[We hereby acknowledge that a Conditional Exercise Notice will be void and of no
effect (and shall be disregarded for all purposes under the Interest Rate
Warrant Agreement) if the Spot Amount on the date that, but for the provisions
of Section 2.02(b) of the Interest Rate Warrant Agreement, would be the
Valuation Date for the Warrants is more than [__________] [above] [below] the
Spot Amount on the Exercise Date (or, if the Exercise Date is not an Interest
Rate Country Business Day, on the immediately preceding Interest Rate Country
Business Day).]
3. We hereby acknowledge that this Exercise Notice[, the Exercise
Price] and the Definitive Warrant Certificates representing the Tendered
Warrants must be received by you by [3:00] P.M., New York City time, on a New
York Business Day in order for the Valuation Date of the Tendered Warrants to be
the Interest Rate Country Business Day next succeeding such New York Business
Day, and that if this Exercise Notice[, the Exercise Price] or such Definitive
Warrant Certificates are received by you after [3:00] P.M., New York City time,
but prior to the close of
<PAGE>
business on a New York Business Day, the Valuation Date of the Tendered Warrants
shall be the Interest Rate Country Business Day next succeeding the first New
York Business Day following the day on which this Exercise Notice[, the Exercise
Price] and such Definitive Warrant Certificates are received. [We further
acknowledge that if this Conditional Exercise Notice[, the Exercise Price] or
such Definitive Warrant Certificates are received by you after [3:00] P.M., New
York City time, but prior to the close of business on a New York Business Day,
that for purposes of making the determinations required by such Conditional
Exercise Notice, the Warrants will be deemed to be exercised on the New York
Business Day next succeeding the day on which this Exercise Notice[, the
Exercise Price] and such Definitive Warrant Certificates are received.]
4. We hereby acknowledge that if you determine that this Exercise
Notice has not been duly completed or is not in proper form, this Exercise
Notice will be void and of no effect and will be deemed not to have been
delivered.
5. We hereby direct you to make payment of amounts payable to us as a
result of the exercise of the Warrants hereunder as follows:
[ ] By cashier's check or an official bank
check;
or
[ ] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank:_________________________________
Account No.:__________________________
ABA Routing No.:______________________
Reference:____________________________
[6. We hereby certify that at the time this notice is delivered to
you, the beneficial owners of the Tendered Warrants are not Interest Rate
Country Residents.]
B-2-2
<PAGE>
Capitalized terms used herein and not defined have the meanings
assigned to them in the Interest Rate Warrant Agreement.
Dated: ________ __, 199__
[NAME OF HOLDER]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-2-3
<PAGE>
EXHIBIT C
Form of Rejection Notice
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation Interest Rate
[Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants")
We refer to the Interest Rate Warrant Agreement, dated as of ________
__, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New
York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the
"Warrant Agent").
In the case of Tendered Warrants represented by a Global Warrant
Certificate and rejected pursuant to Section 2.02(c)(v) of the Interest Rate
Warrant Agreement: You are hereby notified that [the Exercise Notice delivered
by you was determined by us not to have been [duly completed] [in proper form]]
[we were not able to verify that you are a Depository Participant of [The
Depository Trust Company] in the manner, and pursuant to the procedures], as set
forth in the Interest Rate Warrant Agreement. Accordingly, we have rejected
your Exercise Notice as being unsatisfactory as to form.
In the case of Tendered Warrants represented by a Definitive Warrant
Certificate and rejected pursuant to Section 2.02(c)(ii) of the Interest Rate
Warrant Agreement: You are hereby notified that [the Exercise Notice delivered
by you was determined by us not to have been [duly completed] [in proper form]]
[the Definitive Warrant Certificate delivered by you was determined by us not to
have been in proper form], as set forth in the Interest Rate Warrant Agreement.
Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to
form.
[In the case of Tendered Warrants that become void pursuant to Section
2.02(b) of the Interest Rate Warrant Agreement: You are hereby notified that we
have rejected your Conditional Exercise Notice because the Spot Amount on the
Valuation Date was [____________], and the Spot Amount on the [Designated]
Exercise Date (or, if the [Designated] Exercise Date was not an Interest Rate
Country Business Day,
<PAGE>
on the immediately preceding Interest Rate Country Business Day) was
[_______________].]
Capitalized terms used herein and not defined have the meanings
assigned to them in the Interest Rate Warrant Agreement.
Dated: ________ __, 199__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D
Form of Confirmation of Exercise
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of Bankers Trust New York Corporation Interest Rate
[Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants")
We refer to the Interest Rate Warrant Agreement, dated as of ________
__, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New
York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the
"Warrant Agent").
We hereby confirm receipt of your Exercise Notice with respect to
____________ Warrants (the "Exercised Warrants"), and the [Definitive Warrant
Certificates representing the] Warrants relating thereto, which Exercise Notice
[and Definitive Warrant Certificates] we have found to be duly completed and in
good order[, and we have verified, in the manner provided in the Interest Rate
Warrant Agreement, that you are a Depository Participant].
[The Corporation has elected to limit the number of Warrants that may
have an Exercise Date of ___________ __, 199__ to [____________]. Of the
Tendered Warrants, [_______________] Warrants have been selected to be Warrants
that will have an Exercise Date on such date (such Warrants, the "Exercised
Warrants"). The remaining [_____________] Tendered Warrants are deemed to be
Delayed Exercise Warrants.] [The Corporation has not elected to limit the
number of Warrants that may be exercised pursuant to Section 2.02(f) of the
Interest Rate Warrant Agreement. Accordingly, all of the Tendered Warrants will
have an Exercise Date of __________ __, 199__ and are hereinafter referred to as
"Exercised Warrants".]
We hereby confirm that the aggregate Cash Settlement Value of [payment
currency] [_________________] of such Exercised Warrants ([payment currency]
[_____________] per Warrant) [minus the aggregate Exercise Price thereof] will
be made available to you in the form of a [wire transfer] [check], [five] New
York Business Days after the Valuation Date for the Exercised Warrants (or, if
the Valuation Date for the Exercised Warrants was not a New
<PAGE>
York Business Day, [six] New York Business Days after the Valuation Date) in
accordance with the terms of the Interest Rate Warrant Agreement.
Capitalized terms used herein and not defined have the meanings
assigned to them in the Interest Rate Warrant Agreement.
Dated: ________ __, 199__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
D-2
<PAGE>
EXHIBIT E-1
Form of Depository Participant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Automatic Exercise of Bankers Trust New York Corporation Interest Rate
[Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants")
We refer to the Interest Rate Warrant Agreement, dated as of ________
__, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New
York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant
Agent (the "Warrant Agent").
We hereby certify that:
(a) we are acting on behalf of the Owners of ____________ Warrants,
which have been automatically exercised pursuant to the Interest Rate
Warrant Agreement and which we have delivered free on the records of the
Depository to the Warrant Account[; and
(b) we have received certification from such Owners that the
beneficial owners of such Warrants are not Interest Rate Country
Residents].
<PAGE>
Capitalized terms used herein and not defined have the meanings
assigned to them in the Interest Rate Warrant Agreement.
Dated: ________ __, 199__
[NAME OF DEPOSITORY
PARTICIPANT]
[Participant Number]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
D-1-2
<PAGE>
EXHIBIT E-2
Form of Holder Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Automatic Exercise of Bankers Trust New York Corporation Interest Rate
[Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants")
We refer to the Interest Rate Warrant Agreement, dated as of ________
__, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New
York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant
Agent (the "Warrant Agent").
We hereby certify that:
(a) we are the Holders of ____________ Warrants, which have been
automatically exercised pursuant to the Interest Rate Warrant Agreement;
[and]
(b) we have surrendered the Definitive Warrant Certificates
representing such Warrants at the Warrant Agent Office[; and
(c) as of the date hereof, the beneficial owners of such Warrants are
not Interest Rate Country Residents].
<PAGE>
Capitalized terms used herein and not defined have the meanings
assigned to them in the Interest Rate Warrant Agreement.
Dated: ________ __, 199__
[NAME OF HOLDER]
By:______________________
Name:
Title:
[Address]
Telephone:
Facsimile:
E-2-2
<PAGE>
EXHIBIT 5.1
Bankers Trust New York Corporation
280 Park Avenue
New York, New York 10017
(212) 250-4857
Gordon S. Calder, Jr.
May 6, 1994
Bankers Trust New York Corporation,
280 Park Avenue,
New York, New York 10017
Ladies and Gentlemen:
I am a Managing Director and Counsel of Bankers Trust Company and, as such, I
have acted as counsel for Bankers Trust New York Corporation (the
"Corporation") in connection with the registration under the Securities Act of
1933, as amended (the "Act"), of $500,000,000 aggregate amount of the
Corporation's debt securities (the "Debt Securities") and warrants (the
"Warrants", and with the Debt Securities, the "Securities"). I am familiar with
the actions taken in connection with the registration of the Securities and
have examined such corporate records, certificates and other documents, and
such questions of law, as I have considered necessary or appropriate for the
purposes of this opinion.
Capitalized terms used but not defined herein have the meanings assigned to
them in Registration Statement No. 33-51615 relating to the Securities (the
"Registration Statement").
Upon the basis of such examination, I advise you that, in my opinion:
(i) When the Registration Statement has become effective under the Act,
when, in the case of the Debt Securities issued under the Second
Subordinated Indenture, such Indenture has been duly executed and delivered
by the Corporation, and when the terms of the Debt Securities and of their
issuance and sale have been duly established in conformity with the
Indenture relating to such Debt Securities so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Corporation and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Corporation, and such Debt Securities have been duly
executed and authenticated in accordance with such Indenture and issued and
sold as contemplated in the Registration Statement, such Debt Securities
will constitute valid and legally binding obligations of the Corporation,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(ii) When the Registration Statement has become effective under the Act,
the Warrant Agreement relating to one or more series of the Warrants has
been duly executed and delivered by the Corporation, the terms of such
Warrants and of their issuance and sale have been duly established in
conformity with the Warrant Agreement relating to such Warrants so as not
to violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Corporation and so as to comply
with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Corporation, such Warrants have been
admitted for listing on a national securities exchange, and such Warrants
have been duly executed and authenticated in accordance with the Warrants
Agreement relating to such Warrants and issued and sold as contemplated in
the Registration Statement, such Warrants will constitute valid and legally
binding obligations of the Corporation, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
<PAGE>
I note that, as of the date of this opinion, a judgment for money in an
action based on a Security denominated in a foreign currency or currency unit
in a Federal or State court in the United States ordinarily would be enforced
in the United States only in United States dollars. The date used to determine
the rate of conversion of the foreign currency or currency unit in which a
particular Security is denominated into United States dollars will depend upon
various factors, including which court renders the judgment. In the case of a
Security denominated in a foreign currency, a state court in the State of New
York rendering a judgment on such Security would be required sunder Section 27
of the New York Judiciary Law to render such judgment in the foreign currency
in which the Security is denominated, and such judgment would be converted into
United States dollars at the exchange rate prevailing on the date of entry of
the judgment.
The foregoing opinion is limited to the Federal laws of the United States and
the laws of the State of New York, and I am expressing no opinion as to the
effect of the laws of any other jurisdiction. No opinion is expressed herein as
to any Federal or New York State tax laws.
I have relied as to certain matters on information obtained from public
officials, officers of the Corporation and other sources believed by me to be
responsible, and I have assumed that (i) each of the Senior Indenture, the
First Subordinated Indenture and the Second Subordinated Indenture has been
duly authorized, executed and delivered by the respective Trustee thereunder,
and (ii) each Warrant Agreement has been duly authorized, executed and
delivered by the respective Warrant Agent thereunder, assumptions which I have
not independently verified.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the heading "Validity
of Offered Securities" in the prospectus contained therein. In giving such
consent, I do not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
Bankers Trust New York Corporation
By: /s/ Gordon S. Calder, Jr.
2
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference of our firm under the caption "Experts" in Pre-
effective Amendment No. 1 to the Registration Statement (Form S-3 No. 33-51615)
and related Prospectus of Bankers Trust New York Corporation for the
registration of U.S. $500,000,000 Debt Securities and Warrants and to the
incorporation by reference therein of our report dated January 26, 1994, with
respect to the consolidated financial statements of Bankers Trust New York
Corporation, included in its Annual Report (Form 10-K) for the year ended
December 31, 1993, filed with the Securities and Exchange Commission.
/s/ Ernst & Young
New York, New York
May 6, 1994
<PAGE>
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
AMENDMENT NUMBER 1
TO 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)
----------
MARINE MIDLAND BANK
(Exact name of trustee as specified in its charter)
16-1057879
(I.R.S. Employer
Identification No.)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
BANKERS TRUST NEW YORK CORPORATION
(Exact name of obligor as specified in its charter)
New York 13-6180473
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
280 Park Avenue
New York, New York 10017
(212) 250-4857
(Address of principal executive offices) (Zip Code)
SUBORDINATED DEBT SECURITIES
(Title of Indenture Securities)
<PAGE>
General
Item 1. General Information.
-------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(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
<PAGE>
Item 16. List of Exhibits
----------------
Exhibit
- -------
T1A(i) - Copy of the Organization Certificate of
Marine Midland Bank.
T1A(ii) - Certificate of the State of New York
Banking Department dated December 31,
1993 as to the authority of Marine
Midland Bank to commence business.
T1A(iii) - Not applicable.
T1A(iv) - Copy of the existing By-Laws of Marine
Midland Bank as adopted on January 20,
1994.
T1A(v) - Not applicable.
T1A(vi) - Consent of Marine Midland Bank required
by Section 321(b) of the Trust Indenture
Act of 1939.
T1A(vii) - Copy of the latest report of condition of
the trustee (December 31, 1993),
published pursuant to law or the
requirement of its supervisory or
examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Marine Midland Bank, a trust company organized 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 11th day of April, 1994.
MARINE MIDLAND BANK
By:/s/ Metin Caner
----------------
Metin Caner
Assistant Vice President
<PAGE>
EXHIBIT T1A(i)
ORGANIZATION CERTIFICATE
of
"MARINE MIDLAND BANK"
We, the undersigned, all being of full age, all but one of us being
citizens of the United States and all of us being residents of the State of New
York, having associated ourselves together for the purpose of forming a trust
company under and pursuant to the Banking Law of the State of New York, do
hereby certify:
First. That the name by which the corporation is to be known is Marine
-----
Midland Bank.
Second. That the place where its principal office is to be located is
------
Buffalo, New York.
Third. That the amount of its capital stock is to be One Hundred Eighty-
-----
five Million and no/100 Dollars ($185,000,000.00) and the number of shares into
which such capital stock is to be divided is 1,850,000 with a par value of
$100.00 each.
Fourth. The shares are not to be classified as preferred and common.
------
If the shares are to be so classified,
(a) The number and par value of shares to be included in each class
are as follows: not applicable.
(b) All the designations, preferences, privileges and voting powers
of the shares of each class, and the restrictions or
qualifications thereof are as follows: not applicable.
(c) The number of shares of common stock which are to be reserved
for issuance in exchange for preferred shares or otherwise to
replace any capital stock represented by preferred shares is
none.
Fifth. The name, place of residence and citizenship of each incorporator,
-----
and the number of shares subscribed for by each are:
<PAGE>
No. of
Full Name Residence *Citizenship Shares
--------- --------- ------------ ------
James H. Cleave New York Canada 0
John M. Endries New York New York 0
Bernard J. Kennedy New York New York 0
Northrup R. Knox New York New York 0
Henry J. Nowak New York New York 0
Sixth. The term of existence of the corporation is to be perpetual.
-----
Seventh. The number of directors is to be not less than seven or more than
-------
thirty.
Eighth. The names of the incorporators who shall be the directors until the
------
first annual meeting of stockholders are: James H. Cleave, John M. Endries,
Bernard J. Kennedy, Northrup R. Knox and Henry J. Nowak.
Ninth. The corporation is to exercise the powers conferred by Section 100
-----
of the Banking Law.
- --------------------
* If a citizen of New York or a contiguous state, insert name of such state.
<PAGE>
IN WITNESS WHEREOF, We have made, signed and acknowledged this certificate
in duplicate, this 16th day of September, 1993.
/s/ James H. Cleave
- --------------------
/s/ John M. Endries
- --------------------
/s/ Bernard J. Kennedy
- -----------------------
/s/ Northrup R. Knox
- ---------------------
/s/ Henry J. Nowak
- -------------------
STATE OF NEW YORK)
) ss.:
COUNTY OF ERIE )
On this 16th day of September, 1993, personally appeared before me James H.
Cleave, John M. Endries, Bernard J. Kennedy, Northrup R. Knox and Henry J.
Nowak, to me known to be the persons described in and who executed the foregoing
certificate and severally acknowledged that they executed the same.
/s/ Helen Kujawa
-----------------
Notary Public
(Attach County Clerk's certificate
authenticating signature of Notary [NOTARIAL SEAL]
Public who takes acknowledgement)
<PAGE>
Ninth. The corporation is to exercise the powers conferred by Section 100
-----
of the Banking Law.
IN WITNESS WHEREOF, We have made, signed and acknowledged this certificate
in duplicate, this 16th day of September, 1993.
/s/ James H. Cleave
- --------------------
/s/ John M. Endries
- --------------------
/s/ Bernard J. Kennedy
- -----------------------
/s/ Northrup R. Knox
- ---------------------
/s/ Henry J. Nowak
- -------------------
STATE OF NEW YORK)
) ss.:
COUNTY OF ERIE )
I, David J. Swarts, Clerk of the County of Erie, and also Clerk of the
Supreme and County Courts for said County, the same being Courts of Record, do
hereby certify that HELEN KUJAWA, whose name is subscribed to the deposition
certificate of acknowledgement of proof of the annexed instrument, was at the
time of taking the same a NOTARY PUBLIC in and for the State of New York, duly
commissioned and sworn and qualified to act as such throughout the State of New
York; that pursuant to law a commission, or a certificate of his appointment and
qualifications and his autograph signature, have been filed in my office; that
as such Notary Public he was duly authorized by the laws of the State of New
York to administer oaths and affirmations to receive and certify that
acknowledgement of proof of deeds, mortgages, powers of attorney and other
written instruments for lands, tentaments and heriditaments to be read in
evidence or recorded in this State, to protect notes and to take and certify
affidavits and depositions; and that I am well acquainted with the handwriting
of such Notary Public, or have compared the signature on the annexed instrument
and with his autograph signature deposited in my office, and believe that the
signature is genuine.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
said County and Courts at Buffalo, this 17th day of September, 1993.
[SEAL]
N.P. No. 7502 /s/ David S. Swarts
--------------------
Clerk
<PAGE>
ORGANIZATION CERTIFICATE
of
"MARINE MIDLAND BANK"
Received this ____ day of _____________, 19__.
Superintendent of Banks
Filed for examination this ____ day of _____________, 19__.
Superintendent of Banks
______________________ by the Banking Board at a meeting held on the
____ day of ______________, 19__.
Secretary of the Banking Board
________________________________ this ____ day of ____________, 19__.
Superintendent of Banks
<PAGE>
Filed in the office of ______________ this ____ day of ___________,
19__.
Recorded in the office of _______________ this ____ day of ___________,
19__.
<PAGE>
EXHIBIT T1A(ii)
STATE OF NEW YORK
BANKING DEPARTMENT
------------------
KNOW ALL MEN BY THESE PRESENTS,
WHEREAS, the organization certificate of MARINE MIDLAND BANK of Buffalo,
New York has heretofore been duly approved and said MARINE MIDLAND BANK has
complied with the provisions of Chapter 2 of the Consolidated Laws, in respect
of the conversion of MARINE MIDLAND BANK, N.A. into a State trust company under
the name MARINE MIDLAND BANK,
NOW THEREFORE, I, DERICK D. CEPHAS, as Superintendent of Banks of the State
of New York, do hereby authorize the said MARINE MIDLAND BANK to transact the
business of a Trust Company at One Marine Midland Center, Buffalo, Erie County,
within this State.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the Banking Department, this 31st day of December in the year one
thousand nine hundred and ninety-three.
[SEAL]
/s/ Derrick D. Cephas
----------------------
Superintendent
<PAGE>
(Adopted January 20, 1994)
EXHIBIT T1A (iv)
BY-LAWS
of
MARINE MIDLAND BANK
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1.1 Annual Meeting. The annual meeting of the stockholders for the
--------------
election of directors and the transaction of such other business as may properly
come before the meeting shall be held in April each year at the office of the
Bank, One Marine Midland Center, City of Buffalo, State of New York.
Section 1.2 Special Meetings. Except as otherwise specifically provided by
----------------
statute, special meetings of the stockholders may be called for any purpose at
any time by the Board of Directors, the Chairman of the Board, the President,
the Chief Executive Officer or the Secretary at such place and time and on such
day as may be designated in the notice of meeting. Business transacted at all
special meetings of stockholders shall be confined to the purposes stated in the
notice of meeting.
Section 1.3 Quorum. The holders of a majority of the stock issued and
------
outstanding, and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of stockholders, unless
otherwise provided by law.
Section 1.4 Voting.
------
a. At any meeting of the stockholders each stockholder may vote in person
or by proxy duly authorized in writing. Each stockholder shall at every meeting
of stockholders be entitled to one vote for each share of stock held by such
stockholder. A majority of the votes cast shall decide every question or matter
submitted to the stockholders at any meeting, unless otherwise provided by law
or by the Organization Certificate.
b. Any action required to be taken at an annual or special meeting of
stockholders may be taken without a meeting by written consent setting forth the
action and signed by the holders of all of outstanding shares entitled to vote
thereon.
Section 1.5 Notice of Meeting. Written notice of each meeting of
-----------------
stockholders stating the place, date and hour of the meeting and, in the case of
a special meeting, the
<PAGE>
purpose or purposes for which the meeting is called and the person or persons
calling the meeting, shall be delivered personally or shall be mailed postage
prepaid to each stockholder entitled to vote at such meeting, directed to the
stockholder at his or her address as it appears on the records of the Bank, not
less than ten or more than 50 days before the date of the meeting.
ARTICLE II
DIRECTORS
Section 2.1 Board of Directors. The Board of Directors (the "Board") shall
------------------
have power to manage and administer the business and affairs of the Bank and,
except as expressly limited by law, all corporate powers of the Bank shall be
vested in and may be exercised by the Board unless such powers are required by
statute, the Organization Certificate or these By-Laws to be exercised by the
stockholders.
Section 2.2 Number and Term. The Board shall consist of not less than seven
---------------
or more than thirty directors, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a majority
of the entire Board or by resolution of the stockholders at any meeting of
stockholders. Unless sooner removed or disqualified, each director shall hold
office until the next annual meeting of the stockholders and until the
director's successor has been elected and qualified.
Section 2.3 Organization Meeting. At its first meeting after each annual
--------------------
meeting of stockholders, the Board shall choose a Chairman of the Board, a
President and a Chief Executive Officer from its own members and otherwise
organize the new Board and appoint officers of the Bank for the succeeding year.
Section 2.4 Chairman of the Board. The Chairman of the Board shall preside
---------------------
at all meetings of the Board and of stockholders and perform such duties as
shall be assigned from time to time by the Board. In the absence of the Chairman
of the Executive Committee, the Chairman of the Board shall act as Chairman of
the Executive Committee. Except as may be otherwise provided by the By-Laws or
the Board, the Chairman of the Board shall be a member ex officio of all
comn~ittees authorized by these By-Laws or the Board. The Chairman of the Board
shall be kept informed by the executive officers about the affairs of the Bank.
Section 2.5 Regular Meetings. The regular meetings of the Board shall be
----------------
held each month at the time and location designated by the Board. No notice of a
regular meeting shall be required if the meeting is held according to a schedule
of regular meetings approved by the Board.
Section 2.6 Special Meetings. Special meetings of the Board may be called
----------------
by the Chairman of the Board, the President, the Chief Executive Officer or the
Secretary or at the written request of any three or more directors. Each member
of the Board shall be
<PAGE>
given notice stating the time and place of each such special meeting by
telegram, telephone or similar electronic means or in person at least one day
prior to such meeting, or by mail at least three days prior.
Section 2.7 Quorum. One third of the entire Board shall constitute a quorum
------
at any meeting, except when otherwise provided by law. If a quorum is not
present at any meeting, a majority of the directors present may adjourn the
meeting, and the meeting may be held, as adjourned, without further notice
provided that a quorum is then present. The act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board,
unless otherwise specifically provided by statute, the Organization Certificate
or these By-Laws.
Section 2.8 Vacancies. When any vacancy occurs among the directors, the
---------
remaining members of the Board may appoint a director to fill each such vacancy
at any regular meeting of the Board or at a special meeting called for that
purpose. Any director so appointed shall hold office until the next annual
meeting of the stockholders and until the director's successor has been elected
and qualified, unless sooner displaced.
Section 2.9 Removal of Directors. Any director may be removed either with
--------------------
or without cause, at any time, by a vote of the holders of a majority of the
shares of the Bank at any meeting of stockholders called for that purpose. A
director may be removed for cause by vote of a majority of the entire Board.
Section 2.10 Compensation of Directors. The Board shall fix the amounts to
-------------------------
be paid directors for their services as directors and for their attendance at
the meetings of the Board or of committees or otherwise. No director who
receives a salary from the Bank shall receive any fee for attending meetings of
the Board or of any of its committees.
Section 2.11 Action by the Board. Except as otherwise provided by law,
-------------------
corporate action to be taken by the Board shall mean such action at a meeting of
the Board or the Executive Committee of the Board. Any one or more members of
the Board or any committee may participate in a meeting of the Board or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at a
meeting.
Section 2.12 Waiver of Notice. Notice of a meeting need not be given to any
----------------
director who submits a signed waiver of notice before or after the meeting or
who attends the meeting without protesting the lack of such notice prior to or
at the commencement of the meeting.
Section 2.13 Advisory and Regional Boards. The Board, the Chairman of the
----------------------------
Board, the President, the Chief Executive Officer or any Regional President may
establish Advisory Boards or Regional Boards and committees thereof for any one
or more of the Bank's regions, offices, or departments and make or authorize
appointments to be made thereto. Appointees to such boards and committees need
not be stockholders, directors or
<PAGE>
officers of the Bank, and they shall have and perform only such functions as may
be assigned to them by, shall serve at the pleasure of, and shall be compensated
by fees fixed by the Board, the Chairman of the Board, the President, the Chief
Executive Officer or the Regional President making the appointment.
ARTICLE III
COMMITTEES OF THE BOARD
Section 3.1 Executive Committee.
-------------------
a. There shall be an Executive Committee which shall be composed of at
least five members elected by the Board from among its members at its first
meeting following the annual meeting of stockholders to serve for the ensuing
year and shall include the Chairman of the Board, the President, the Chief
Executive Officer and the Chairman of the Executive Committee, all of which
offices may be held by one person. The Chairman of the Board may appoint one or
more directors as alternate members to serve in place of any absent members of
the Executive Committee. Any vacancy in the Executive Committee shall be filled
by the Board, but until its next regular Board meeting may be filled temporarily
by the Chairman of the Board.
b. The Executive Committee shall possess and exercise all of the powers of
the Board except (i) when the latter is in session and (ii) as provided
otherwise in the New York Banking Law.
Section 3.2 Chairman of the Executive Committee. The Board shall appoint
-----------------------------------
one of its members to be Chairman of the Executive Committee. The Chairman of
the Board, the President or the Chief Executive Officer may at the same time be
appointed Chairman of the Executive Committee. The Chairman of the Executive
Committee shall preside at all meetings of the Executive Committee, and the
Chairman of the Executive Committee shall, in the absence of the Chairman of the
Board, the President and the Chief Executive Officer, preside at all meetings of
stockholders and the Board. The Chairman of the Executive Committee shall also
perform such other duties and be vested with such other powers as may from time
to time be conferred upon him or her by these By-Laws or as shall be assigned to
him or her from time to time by the Board or the Chief Executive Officer.
Section 3.3 Meetings of the Executive Committee. Meetings of the Executive
-----------------------------------
Committee may be called by the Chairman of the Board, the Chairman of the
Executive Committee, the President, the Chief Executive Officer or the Secretary
and may be held at any place and at any time designated in the notice thereof
Each member of the Executive Committee shall be given notice stating the time
and place of each such meeting, by telegram, telephone or similar electronic
means or in person at least one day prior to such meeting, or by mail at least
three days prior.
Section 3.4 Examining Committee. The Board shall designate an Examining
-------------------
<PAGE>
Committee, which shall hold office until the next annual meeting of the Board
following the annual meeting of stockholders, consisting of not less than three
of its members, other than officers of the Bank, and whose duty it shall be to
make an examination at least once during each calendar year and within 15 months
of the last such examination into the affairs of the Bank including the
administration of fiduciary powers, or cause suitable examinations to be made by
auditors responsible only to the Board and to report the result of such
examination in writing to the Board. Such report shall state whether the Bank is
in a sound condition, whether adequate internal controls and procedures are
being maintained and shall recommend to the Board such changes in the manner of
conducting the affairs of the Bank as shall be deemed advisable. The Committee
shall at such time ascertain whether the Bank's fiduciary responsibilities have
been administered in accordance with law and sound fiduciary principles.
Section 3.5 Other Committees. The Board may appoint, from time to time,
----------------
from its own members, committees of the Board of three or more persons, for such
purposes and with such powers as the Board may determine.
ARTICLE IV
OFFICERS
Section 4.1 Appointment of Officers. At its annual meeting following the
-----------------------
annual meeting of stockholders, the Board shall appoint from among its members a
Chairman of the Board, a President, a Chief Executive Officer and a Secretary.
The Chairman of the Board or the President may also be appointed as the Chief
Executive Officer. At such meeting, the Board shall also appoint one or more
Vice Presidents, and may at such meeting or at other meetings of the Board
appoint such other officers as it may determine from time to time. The Board may
also authorize a committee of the Board to appoint such officers as are not
required to be appointed by the Board at a meeting.
Section 4.2 Duties of President. In the absence of the Chairman of the
-------------------
Board, the President shall preside at all meetings of the Board and of
stockholders and in the absence of the Chairman of the Executive Committee and
the Chairman of the Board shall preside at all meetings of the Executive
Committee. Except as may be otherwise provided by the By-Laws or the Board, the
President shall be a member ex officio of all committees authorized by these
By-Laws or the Board. The President shall have general executive powers, shall
participate actively in all major policy decisions and shall have and may
exercise any and all other powers and duties pertaining by law, regulation or
practice to the Office of President or imposed by these By-Laws. The President
shall also have and may exercise such further powers and duties as from time to
time may be conferred or assigned by the Board or the Chief Executive Officer.
Section 4.3 Duties of Chief Executive Officer. The Chief Executive Officer
---------------------------------
shall exercise general supervision over the policies and business affairs of the
Bank and the carrying out of the policies adopted or approved by the Board.
Except as otherwise
<PAGE>
provided by these By-Laws, the Chief Executive Officer shall have the power to
determine the duties of the officers of the Bank and to employ and discharge
officers and employees. Except as otherwise provided by the By-Laws or the
Board, the Chief Executive Officer shall be a member ex officio of all
committees authorized by these By-Laws or created by the Board. In the absence
of the Chairman of the Board and the President, the Chief Executive Officer
shall preside at all meetings of the Board and of stockholders.
Section 4.4 Duties of Vice Presidents. Each Vice President shall have such
-------------------------
titles, seniority, powers and duties as may be assigned by the Board, a
committee of the Board, the President or the Chief Executive Officer.
Section 4.5 Secretary. The Secretary shall be Secretary of the Board and of
---------
the Bank and shall keep accurate minutes of all meetings of stockholders and of
the Board. The Secretary shall attend to the giving of all notices required to
be given by these By-Laws; shall be custodian of the corporate seal, records,
documents and papers of the Bank; shall provide for the keeping of proper
records of all transactions of the Bank; shall have and may exercise any and all
other powers and duties pertaining by law, regulation or practice to the office
of Secretary or imposed by these By-Laws; and shall also perform such other
duties as may be assigned from time to time by the Board, the president or the
Chief Executive Officer.
Section 4.6 Other Officers. The President or the Chief Executive Officer or
--------------
his or her designee may appoint all officers whose appointment does not require
approval by the Board or a committee of the Board and assign to them such titles
as from time to time may appear to be required or desirable to transact the
business of the Bank. Each such officer shall have such powers and duties as may
be assigned by the Board, the president or the Chief Executive Officer.
Section 4.7 Tenure of Office. The Chairman of the Board, the President, the
----------------
Chief Executive Officer, the Chairman of the Executive Committee, the Secretary
and the Vice Presidents shall hold office for the current year for which the
Board was elected and until their successors have been appointed and qualified,
unless they shall resign, become disqualified or be removed. All other officers
shall hold office until their successors have been appointed and qualify, unless
they shall resign, become disqualified or be removed. The Board shall have the
power to remove the Chairman of the Board, the President, the Chief Executive
Officer, the Chairman of the Executive Committee and the Secretary. The Board or
the Chief Executive Officer or his or her designee shall have the power to
remove all other officers and employees. Any vacancy occurring in the offices of
Chairman of the Board, President or Chief Executive Officer shall be filled
promptly by the Board.
Section 4.8 Compensation. The Board shall by resolution determine from time
------------
to time the officers whose compensation will require approval by the Board or a
committee of the Board. The Chief Executive Officer shall fix the compensation
of all officers and employees whose compensation does not require approval by
the Board or a committee of the Board.
<PAGE>
Section 4.9 Auditor. The Board or the Chief Executive Officer shall appoint
-------
an officer to fill the position of Auditor for the Bank and assign to such
officer such title as is deemed appropriate. The Auditor shall perform all
duties incident to the audit of all departments and offices and of all affairs
of the Bank. The Auditor shall be responsible to the Chief Executive Officer.
The Auditor may at any time report to the Board any matter concerning the
affairs of the Bank that, in the Auditor's judgment, should be brought to its
attention.
Section 4.10 Regional Presidents. The Board may appoint one or more
-------------------
Regional Presidents. Each Regional President shall have such powers and duties
as may be assigned by the Board or the Chief Executive Officer.
ARTICLE V
FIDUCIARY POWERS
Section 5.10 Fiduciary Responsibility. The Board shall appoint an officer
------------------------
or officers or a committee or committees of this Bank whose duties shall be to
manage, supervise and direct the fiduciary activities of the Bank as assigned by
the Board. Such officer or committee shall do or cause to be done all things
necessary or proper in carrying on the assigned activities in accordance with
provisions of law and applicable regulations and shall act pursuant to opinion
of counsel where such opinion is deemed necessary. Opinions of counsel shall be
retained on file in connection with all important matters pertaining to
fiduciary activities. The officer or committee shall be responsible for all
assets and documents held by the Bank in connection with fiduciary matters
assigned by the Board.
Section 5.11 Fiduciary Files. Files shall be maintained containing all
---------------
fiduciary records necessary to assure that fiduciary responsibilities have been
properly undertaken and discharged.
Section 5.12 Fiduciary Investments. Funds held in a fiduciary capacity
---------------------
shall be invested in accordance with the instrument establishing the fiduciary
relationship and applicable law. Where such instrument does not specify the
character and class of investments to be made and does not vest in the Bank a
discretion in the matter, funds held pursuant to such instrument shall be
invested in investments in which corporate fiduciaries may invest under
applicable law.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
Section 6.1 Transfers. Shares of the stock of the Bank shall be
---------
transferable on the books of the Bank, only by the person named in the
certificate or by an attorney, lawfully constituted in writing, and upon
surrender of the certificate therefor. Every person an attorney, lawfully
constituted in writing, and upon surrender of the certificate therefor. Every
person
<PAGE>
becoming a stockholder by such transfer shall, in proportion to his or her
shares, succeed to all rights of the prior holder of such shares.
Section 6.2 Stock Certificates. The certificates of stock of the Bank shall
------------------
be numbered and shall be entered in the books of the Bank as they are issued.
They shall exhibit the holder's name and number of shares and shall be signed
by the Chairman of the Board, the President, the Chief Executive Officer or
any Vice President and by the Secretary or an Assistant Secretary.
ARTICLE VII
CORPORATE SEAL
Section 7.1 Corporate Seal. The Chairman of the Board, the President, the
--------------
Chief Executive Officer, the Secretary or any Assistant Secretary, a Vice
President or Assistant Vice President or other officer designated by the Board
or the Chief Executive Officer or his or her designee shall have authority to
affix the corporate seal to any document requiring such seal and to attest the
same. Such seal shall be substantially in the following form:
(impression)
( of )
( seal )
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Fiscal Year. The fiscal year of the Bank shall be the calendar
-----------
year.
Section 8.2 Execution of Instruments.
------------------------
a. All agreements, indentures, mortgages, deeds, conveyances, transfers,
certificates, declarations, receipts, discharges, releases, satisfactions,
settlements, petitions, schedules, accounts, affidavits, bonds, undertakings,
proxies and other instruments or documents may be signed, executed,
acknowledged, verified, delivered or accepted in behalf of the Bank or in
connection with the exercise of the fiduciary powers of the Bank, by the
Chairman of the Board, the President, the Chief Executive Officer, the
Secretary or any other officer or employee (other than the Auditor) designated
by the Board or the Chief Executive Officer or his or her designee. Any such
instruments may also be executed, acknowledged, verified, delivered or accepted
in behalf of the Bank in such other manner and by such other officers as the
Board may from time to time direct. The provisions of this Section 8.2 are
supplementary to any other provision of these By-Laws.
<PAGE>
b. When required, the Secretary or any officer or agent designated by the
Board or the Chief Executive Officer or his designee shall countersign and
certify all bonds or certificates issued by the Bank as trustee, transfer agent,
registrar or depository. The Chief Executive Officer or any officer designated
by the Board or the Chief Executive Officer or his or her designee shall have
the power to accept in behalf of the Bank any guardianship, receivership,
executorship or other special or general trust permitted by law. Each of the
foregoing authorizations shall be at the pleasure of the Board, and each such
authorization by the Chief Executive Officer or his or her designee also shall
be at the pleasure of the Chief Executive Officer.
Section 8.3 Records. The By-Laws and the proceedings of all meetings of the
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stockholders, the Board and standing committees of the Board shall be recorded
in appropriate minute books provided for the purpose. The minutes of each
meeting shall be signed by the Secretary or other officer appointed to act as
secretary of the meeting.
Section 8.4 Emergency Operations. In the event of war or warlike damage or
--------------------
disaster of sufficient severity to prevent the conduct and management of the
affairs, business and property of the Bank by its directors and officers as
contemplated by these By-Laws, any two or more available members of the then-
incumbent Executive Committee shall constitute a quorum of that committee for
the full conduct and management of the affairs, business and property of the
Bank. In the event of the unavailability at such time of a minimum of two
members of the then-incumbent Executive Committee, any three available directors
shall constitute the Executive Committee for the full conduct and management of
the affairs, business and property of the Bank. This by-law shall be subject to
implementation by resolutions of the Board passed from time to time for that
purpose, and any provisions of these By-Laws (other than this section) and any
resolutions which are contrary to the provisions of this section or to the
provisions of any such implementary resolutions shall be suspended until it
shall be determined by any interim Executive Committee acting under this section
that it shall be to the advantage of the Bank to resume the conduct and
management of its affairs, business and property under all of the other
provisions of these By-Laws.
Section 8.5 Indemnification.
---------------
a. The Bank shall indemnify each person made or threatened to be made a
party to any action or proceeding, whether civil or criminal, by reason of the
fact that such person or such person's testator or intestate is or was a
director or officer of the Bank, or, while a director or officer, serves or
served, at the request of the Bank, any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, penalties, amounts paid in settlement and reasonable
expenses, including attorney's fees, incurred in connection with such action
or proceeding, or any appeal therein, provided that no such indemnification
shall be made if a judgment or other final adjudication adverse to such
director or officer establishes that his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and were material
to the cause of action so adjudicated, or that he or she personally gained in
fact a financial profit or other advantage to which he or she was not legally
entitled, and provided further that no such indemnification shall be required
with respect to any settlement or
<PAGE>
other nonjudicated disposition of any threatened or pending action or proceeding
unless the Bank has given its prior consent to such settlement or other
disposition.
b. The Bank shall advance or promptly reimburse upon request any director
or officer seeking indemnification hereunder for all expenses, including
attorneys' fees, reasonably incurred in defending any action or proceeding in
advance or the final disposition thereof upon receipt of an undertaking by or
on behalf of such person to repay such amount if such person is ultimately found
not to be entitled to indemnification or, where indemnification is granted, to
the extent the expenses so advanced or reimbursed exceed the amount to which
such person is entitled.
c. This Section 8.5 shall be given retroactive effect, and the full
benefits hereof shall be available in respect of any alleged or actual
occurrences, acts or failures to act prior to the date of the adoption of this
Section 8.5. The right to indemnification of advancement of expenses under this
Section 8.5 shall be a contract right.
Section 8.6 Amendments. These By-Laws may be added to, amended, altered or
----------
repealed at any regular meeting of the Board by a vote of a majority of the
total number of the directors, or at any meeting or stockholders, duly called
and held, by a majority of the stock represented at such meeting.
<PAGE>
I __________________, CERTIFY that I am the duly appointed Secretary of
Marine Midland Bank and, as such officer, have access to its official records
and the foregoing By-Laws are the By-Laws of the Bank, and all of them are now
lawfully in force and effect.
IN TESTIMONY WHEREOF, I have hereunto affixed my official signature and the
seal of the Bank, in New York, on _______________________.
Secretary
[SEAL]
<PAGE>
EXHIBIT T1A(vi)
Securities and Exchange Commission
Washington, D.C. 20549
Dear Sirs:
Pursuant to Section 321(b) of the Trust Indenture Act of 1939 and subject
to the qualifications and limitation of 321(b) and the other provisions of the
Trust Indenture Act of 1939, the undersigned Marine Midland Bank consents that
reports of examination by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Commission upon request therefor.
Yours very truly,
MARINE MIDLAND BANK
By:
Metin Caner
Assistant Vice President
Attest:
By:
Eileen M. Hughes
Corporate Trust Officer
<PAGE>
EXHIBIT T1A(vii)
REPORT OF CONDITION
Consolidated Report of Condition of
Marine Midland Bank of Buffalo, New
York and Foreign and Domestic Subsid-
iaries, a member of the Federal Reserve
System, at the close of business on
December 31, 1993, published in accordance
with a call made by the Federal Reserve
Bank of this District pursuant to the
provisions of the Federal Reserve Act.
(Dollar Amounts in
Thousands)
ASSETS
Cash and balance due from
depositary institutions:
Noninterest-bearing balances
and currency and coin.................................... 1,071,645
Interest-bearing balances................................ 1,492,007
Securities.................................................... 1,919,704
Federal funds sold and
securities purchased under
agreements to resell in
domestic offices of the
bank and of its Edge and
Agreement subsidiaries, and
in IBF's
Federal funds sold ...................................... 357,000
Securities purchased
under agreements to
resell .................................................. 593,002
Loans and lease financing
receivables:
Loans and leases, net of
unearned income ....................................... 9,930,891
LESS: Allowance for loan
and lease losses ...................................... 342,089
LESS: Allocated transfer
<PAGE>
risk reserve ..................................... 0
Loans and lease, net of unearned
income, allowance, and reserve ................................ 9,588,802
Assets held in trading accounts ................................ 1,615,072
Premises and fixed assets
(including capitalized leases) ................................ 193,194
Other real estate owned ........................................ 142,240
Investments in unconsolidated
subsidiaries and associated companies ......................... 0
Customers' liability to this bank
on acceptances outstanding .................................... 15,007
Intangible assets .............................................. 69,056
Other assets ................................................... 428,500
----------
Total assets ................................................... 17,485,229
==========
LIABILITIES
Deposits:
In domestic offices .......................................... 12,377,782
Noninterest-bearing .......................... 3,259,659
Interest-bearing ............................. 9,118,123
In foreign offices, Edge
and Agreement Subsidiaries,
and IBF's ...................................................... 1,002,884
Noninterest-bearing .......................... 0
Interest-bearing ............................. 1,002,884
Federal funds purchased securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsidiaries,
and in IBF's Federal funds purchased ........................... 1,115,269
Securities sold under agreements to repurchase ............... 260,530
Demand notes issued to the U.S. Treasury ....................... 300,000
Other borrowed money ........................................... 510,549
Mortgage indebtedness and obligations under
capitalized leases ............................................ 41,852
Bank's liability on acceptances
<PAGE>
executed and outstanding...................................... 17,591
Subordinated notes and debentures .............................. 225,000
Other liabilities .............................................. 317,656
----------
Total Liabilities .............................................. 16,169,113
Limited-Life preferred stock and related surplus ............... 0
EQUITY CAPlTAL
Perpetual preferred stock and related surplus .................. 0
Common Stock ................................................... 185,000
Surplus ........................................................ 1,182,745
Undivided profits and capital reserves ......................... (51,269)
LESS: Net unrealized loss
on marketable equity
securities ............................................... 0
Cumulative foreign currency translation adjustments ............ 0
Total equity capital ........................................... 1,316,116
----------
Total
Liabilities, limited-life preferred stock and equity
capital ..................................................... 17,485,229
==========
<PAGE>
I, Gerald A. Ronning, Executive Vice President and Controller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
GERALD A. RONNING
We the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
James H. Cleave
Director
Bernard J. Kennedy
Director
Northrup R. Knox
Director
