<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 22, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BANKERS TRUST NEW YORK CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-6180473
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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)
Copy to
GORDON S. CALDER, JR., ESQ. KEVIN KEOGH, ESQ.
MELVIN A. YELLIN, ESQ. WHITE & CASE
BANKERS TRUST NEW YORK CORPORATION 1155 AVENUE OF THE AMERICAS
130 LIBERTY STREET NEW YORK, NEW YORK 10036
NEW YORK, NEW YORK 10006 (212) 819-8200
(212) 250-2500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENTS FOR SERVICE)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to rule 434,
please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities, Common
Stock and Series
Preferred Stock....... $1,000,000,000(1) 100%(2) $1,000,000,000(2) $344,828
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Depositary Shares...... (3) none none none
</TABLE>
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(1) If any Debt Securities are issued at an original issue discount or with a
principal amount denominated in a foreign currency or currency unit, such
principal amount as shall result in an aggregate initial offering price
equivalent to $1,000,000,000. There are being registered hereunder such
indeterminate number of shares of common stock, par value $1.00 per share
(the "Common Stock"), and series preferred stock, without par value (the
"Series Preferred Stock"), as may from time to time be issued at
indeterminate prices, but with an aggregate initial offering price not to
exceed $1,000,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) There are also being registered hereunder an indeterminate number of
depositary shares to be evidenced by depositary receipts issued pursuant
to one or more deposit agreements. In the event that the Registrant elects
to offer to the public fractional interests in shares of the Series
Preferred Stock registered hereunder, depositary receipts will be
distributed to those persons purchasing such fractional interests and the
shares of the Series Preferred Stock will be issued to the depositary
under the applicable deposit agreement.
---------------
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 THIS 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
ISSUE DATE: DECEMBER 22, 1995
PROSPECTUS
- ----------
U.S.$1,000,000,000
[LOGO] BANKERS TRUST NEW YORK CORPORATION
DEBT SECURITIES, COMMON STOCK AND SERIES PREFERRED STOCK
Bankers Trust New York Corporation (the "Corporation") may offer from time to
time up to U.S.$1,000,000,000 aggregate principal amount, or its equivalent
(based on the applicable exchange rate at the time of offering) in such foreign
currencies, or units of two or more thereof, as shall be designated by the
Corporation at the time of offering, of one or more series of debt securities
(the "Debt Securities"), common stock, par value $1.00 per share (the "Common
Stock"), or one or more series of its series preferred stock, without par value
(the "Series Preferred Stock"), interests in such Series Preferred Stock may be
represented by depositary shares (the "Depositary Shares"). If Debt Securities
are issued at an original issue discount, the Corporation may issue such higher
principal amount as may be sold for an initial public offering price of up to
U.S.$1,000,000,000, or its equivalent (based on the applicable exchange rate at
the time of offering) in such foreign currencies or units of two or more
thereof, as shall be designated by the Corporation at the time of offering. The
Debt Securities may be senior debt securities (the "Senior Debt Securities") or
subordinated debt securities (the "Subordinated Debt Securities"). Debt
Securities, Common Stock, Series Preferred Stock and Depositary Shares
(collectively, the "Offered Securities") will be offered on terms to be
determined at the time of offering. The specific title, the aggregate principal
amount, the purchase price, the maturity, the rate and time of payment of any
interest, any redemption provisions, any terms of conversion or exchange and
any other specific terms of the Debt Securities in respect of which this
Prospectus is being delivered are set forth in the accompanying supplement to
this Prospectus (the "Prospectus Supplement"). If Common Stock is offered, the
Prospectus Supplement will set forth the number of shares of Common Stock, the
initial public offering price and any other terms of the offering. If Series
Preferred Stock is offered, the Prospectus Supplement will set forth the
specific title, number of shares of Series Preferred Stock and number of
Depositary Shares, if any, any dividend, liquidation, redemption, conversion,
voting or other rights, the initial public offering price and any other terms
of the offering.
The Offered Securities 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 and 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--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."
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.
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 December , 1995.
<PAGE>
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 office of the New York Stock
Exchange and the office of 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 which 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, 1994, filed pursuant to Section 13 of the
Exchange Act;
(b) The Corporation's Quarterly Reports on Form 10-Q (file number 1-5920)
for the quarters ended March 31, June 30 and September 30, 1995, filed
pursuant to Section 13 of the Exchange Act; and
(c) The Corporation's Current Reports on Form 8-K (file number 1-5920)
dated January 19, March 24, April 18, April 19, May 16, June 19, June 22,
June 27, July 20, September 21, October 19, November 6 and November 10,
1995.
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, 130 Liberty Street, New York, New York, 10006. Telephone requests
may be directed to (212) 250-2201.
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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, IN CONNECTION WITH THE
OFFERING CONTAINED HEREIN, 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 SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT INFORMATION HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO THE DATE THEREOF OR, IN THE CASE OF INFORMATION
INCORPORATED HEREIN BY REFERENCE, THE DATE OF FILING WITH THE COMMISSION.
2
<PAGE>
BANKERS TRUST NEW YORK CORPORATION
GENERAL
Bankers Trust New York Corporation (the "Corporation") is a bank holding
company, incorporated under the laws of the State of New York in 1965. At
September 30, 1995, the Corporation had consolidated total assets of $103.9
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. Among the
institutional market segments served are corporations, banks, other financial
institutions, governments and agencies, retirement plans, not-for-profit
organizations, wealthy individuals, foundations and private companies. Bankers
originates loans and other forms of credit, accepts deposits, arranges
financings and provides numerous other commercial banking and financial
services. Bankers provides a broad range of financial advisory services to its
clients. It also 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 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 may itself be 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, trading liabilities, 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 COMBINED FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------
1990 1991 1992 1993 1994 1995
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits....... 1.30 1.40 1.44 1.71 1.28 1.02
Including Interest on Deposits....... 1.16 1.22 1.28 1.48 1.21 1.02
</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 which is deemed representative of
the interest factor, the amortization of debt issuance expense and capitalized
interest.
3
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------
1990 1991 1992 1993 1994 1995
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits....... 1.28 1.37 1.41 1.69 1.27 1.00
Including Interest on Deposits....... 1.15 1.21 1.26 1.47 1.20 1.00
</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 which is deemed representative of
the interest factor, the amortization of debt issuance expense and capitalized
interest. Fixed charges are then combined with preferred stock dividend
requirements, adjusted to a pretax basis, on the outstanding preferred stock.
USE OF PROCEEDS
Unless otherwise indicated in the applicable 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 applicable Prospectus
Supplement, specific allocations of the proceeds to such purposes have not been
made, although management will have determined at the date of the applicable
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. 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,
N.A., 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 of which this Prospectus is
a part.
4
<PAGE>
GENERAL
Each Indenture provides for the issuance of debt securities in one or more
series, and does not limit the principal 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 the 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 at which the
Debt Securities will bear interest; (7) any index, security, group of
securities or formula used to determine the amount of principal of, premium,
if any, and interest, if any, on the Debt Securities (8) the time or times at
which any such principal, premium, if any, 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 units of
two or more currencies in which the Debt Securities are denominated, if other
than U.S. dollars, and the currency or units 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 and the remedies with
respect thereto not set forth in the respective Indenture; and (18) any other
specific terms of the Debt Securities.
SUBORDINATION
Subordinated Debt Securities
Unless otherwise indicated in the applicable 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, 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
5
<PAGE>
each Subordinated Indenture, "Excess Proceeds") and if, at such time, any
Entitled Persons (as defined below) 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.
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 Entitled Persons 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 Entitled Persons in respect of Other
Financial Obligations and may recover more, ratably, than the holders of
Subordinated Debt Securities.
Senior Indebtedness 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 of the Corporation
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 or to rank pari passu with the
Subordinated Debt 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 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. The term "indebtedness for money borrowed," when
used with respect to the Corporation, 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 the Corporation's 8 1/4%
Subordinated Notes due July 2, 1996, 8% Subordinated Debentures due March 1997,
Zero Coupon Subordinated Yen Notes due 1997-2004, Subordinated Money Market
Capital Notes, Series A, B and C due June 1999, 9.20% Subordinated Capital
Notes due July 15, 1999, 9.50% Subordinated Debentures due June 14, 2000, 9.40%
Subordinated Debentures due March 1, 2001, 9.00% Subordinated Debentures due
August 1, 2001, 7.50% Subordinated Debentures due January 15, 2002, 8 1/8%
Subordinated Notes due 2002, 8 1/8% Subordinated Debentures due May 15, 2002, 7
1/8% Subordinated Debentures due July 31, 2002, Subordinated Floating Rate
Notes due 2002, 7.25% Subordinated Debentures due January 15, 2003,
Subordinated Constant Maturity Treasury Floating Rate Debentures due 2003,
Subordinated LIBOR CMT Floating Rate Debentures due 2003, Subordinated Floating
Rate Notes due 2004, 8 1/4% Subordinated Notes due 2005, Subordinated Floating
Rate Notes due 2005, Subordinated Yen Loan due 2005, 6% Subordinated Notes due
October 2008, 7 1/8% Subordinated Notes due 2010, 7 1/2% Subordinated Notes due
2010, 7 1/2% Subordinated Notes due November 15, 2015, 6 1/8% Convertible
Capital Securities due June 2033 and 6.00% Convertible Capital Securities due
August 2033 and such other indebtedness as may be specified in the Prospectus
Supplement.
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"Other Financial Obligations" means 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. "Entitled Persons" means any
person who is entitled to payment pursuant to the terms of Other Financial
Obligations.
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 holders of
Subordinated Debt Securities to pay over any Excess Proceeds to Entitled
Persons in respect of Other Financial Obligations as provided in the applicable
Subordinated Indenture.
As of September 30, 1995, Senior Indebtedness and Other Financial Obligations
of the Corporation aggregated approximately $14.0 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 certificated or global form.
Debt Securities may be presented for registration of transfer (with the form of
transfer endorsed 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 an applicable Prospectus
Supplement, without service charge and upon payment of any taxes and other
governmental charges as described in the relevant 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 and (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 an 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
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in the applicable indenture) of such Debt Security. Unless otherwise indicated
in an 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
Security (or Predecessor Security) is registered at the close of business on
the Regular Record Date for such interest.
Unless otherwise indicated in an 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 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
respective 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, if any, on, any
such debt security, (b) reduce the principal amount of, or premium or rate of
interest, if any, 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, if any, 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
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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 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 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 or purchase
fund installment) if such 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 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 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 or purchase 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
persons, firm or corporation or otherwise engage in
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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.
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 become 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 shall 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 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.
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BOOK-ENTRY SECURITIES
The Offered Securities may 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 will be entitled to receive a
certificate representing such person's interest in such 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 such holders shall refer to payments and
notices to DTC or Cede, as the registered holder of such Offered Securities.
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 the Corporation as registered holders of the Offered
Securities entitled to the benefits of the applicable Indenture or the terms of
the Offered Securities. 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 the terms of the Offered Securities only at the direction of one
or more Participants to whose accounts with DTC such Offered Securities are
credited.
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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 an order complying
with the requirements of the applicable Indenture that such Global Security
shall be so exchangeable or (iii) in the case of Debt Securities, there has
occurred and is continuing a default in the payment of principal of, premium,
if any, or interest on, the Debt Securities or 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 definitive Offered Securities 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 re-registration, the Trustee or the applicable registrar, as
the case may be, will reissue the Offered Securities as definitive Debt
Securities, and thereafter such Trustee or the applicable registrar will
recognize the holders of such definitive Offered Securities as registered
holders of Offered Securities entitled to the benefits of the applicable
Indenture or the terms of the Offered Securities, as the case may be.
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, Common Stock and Series Preferred Stock. 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, Common Stock and Series
Preferred Stock 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 may be denominated in such foreign currencies or
currency units as may be designated by the Corporation at the time of offering
(the "Foreign Currency Securities").
THIS PROSPECTUS DOES NOT DESCRIBE ALL RISKS OF AN INVESTMENT IN FOREIGN
CURRENCY SECURITIES THAT RESULT FROM SUCH FOREIGN CURRENCY SECURITIES BEING
DENOMINATED IN A FOREIGN CURRENCY OR UNITS OF TWO OR MORE OF SUCH FOREIGN
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.
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ADDITIONAL FACTORS MAY BE SET FORTH IN CONNECTION WITH A SPECIFIC FOREIGN
CURRENCY SECURITY IN THE APPLICABLE PROSPECTUS SUPPLEMENT.
Unless otherwise indicated in an 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, 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 possibility of significant
changes in the rate of exchange between the U.S. dollar and the currency or
currency unit 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. 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 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 converts U.S. dollars to the Specified Currency for payment of the
judgment.
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DESCRIPTION OF SERIES PREFERRED STOCK
The Corporation is authorized to issue up to 10,000,000 shares of series
preferred stock, without par value. All shares of Series Preferred Stock,
irrespective of series, constitute one and the same class. See "Description of
the Corporation's Capital Stock." The following description of the terms of the
Series Preferred Stock sets forth certain general terms and provisions of the
Series Preferred Stock to which any Prospectus Supplement may relate. Certain
terms of any series of Series Preferred Stock offered by any Prospectus
Supplement will be described in the Prospectus Supplement relating to such
series of Series Preferred Stock. If so indicated in the Prospectus Supplement,
the terms of any such series may differ from the terms set forth below.
The Board of Directors is authorized to establish and designate series and to
fix the number of shares and the relative rights, preferences and limitations
of the respective series of the Series Preferred Stock. The terms of a
particular series of Series Preferred Stock may differ, among other things, in
(1) the number of shares that constitute such series, (2) the dividend rate (or
the method of calculation) on the shares of such series, and whether such
dividends are cumulative, (3) whether or not the shares of the series shall be
redeemable and the terms thereof, (4) whether or not the shares of the series
shall be convertible into, or exchangeable for, Common Stock (as defined below)
or other stock of the Corporation and the terms thereof, (5) the amount per
share payable on the shares of the series in case of liquidation, dissolution
or winding up of the Corporation, (6) the terms of voting rights, if any, of
shares of the series, and (7) the other rights and privileges and any
qualifications, limitations or restrictions of such rights or privileges of
such series. Unless otherwise specifically set forth in the Prospectus
Supplement relating to a series of Series Preferred Stock, all shares of Series
Preferred Stock shall be of equal rank, preference and priority as to
dividends; when the stated dividends on any series are not paid in full, the
shares of all series of the Series Preferred Stock are to share ratably in any
dividend payment that is made; and upon liquidation, dissolution or winding up,
if assets are insufficient to pay in full all series preferred stock, then such
assets are to be distributed among the holders ratably.
As described under "Depositary Shares" below, the Corporation may, at its
option, elect to offer Depositary Shares evidenced by Depositary Receipts (as
defined below), each representing a fraction (to be specified in the Prospectus
Supplement relating to the particular series of Series Preferred Stock) of a
share of the particular series of Series Preferred Stock issued and deposited
with a depositary, in lieu of offering full shares of such series of the Series
Preferred Stock.
The description of certain provisions of the Series Preferred Stock set forth
below does not purport to be complete and is subject to and qualified in its
entirety by reference to the Restated Certificate of Incorporation, as amended,
of the Corporation (the "Certificate of Incorporation") and the Certificate of
Amendment of the Certificate of Incorporation that relates to a particular
series of Series Preferred Stock, which will be filed with the Commission at or
prior to the time of the sale of the related Series Preferred Stock.
DIVIDEND RIGHTS
The holders of the Series Preferred Stock shall be entitled to receive, but
only when, as and if declared by the Board of Directors out of funds legally
available for that purpose, cash dividends at the rates and on the dates set
forth in the Prospectus Supplement relating to a particular series of Series
Preferred Stock, and no more (each date of such payment, a "Dividend Payment
Date"). Such rate may be fixed or variable, as set forth in the applicable
Prospectus Supplement. Each such dividend will be payable to the holders of
record of the shares of such series as they appear on the stock books of the
Corporation (or, if applicable, the records of the Depositary referred to below
under "Depositary Shares") on such record dates as are fixed by the Board of
Directors of the Corporation or a duly authorized committee thereof. Dividends
payable on any series of Series Preferred Stock for any period less than a full
quarter will be computed on the basis of the actual number of days elapsed over
a 360-day year, and for a period of a full quarter will be computed on the
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basis of a 360-day year consisting of twelve 30-day months. Unless otherwise
specified in the Prospectus Supplement relating to a series of Series Preferred
Stock, such dividends shall be payable from, and shall be cumulative from, the
date of original issue of each share, so that if in any quarterly dividend
period (being the period between such Dividend Payment Dates) dividends at the
rate or rates as described in the Prospectus Supplement relating to such series
of Series Preferred Stock shall not have been declared and paid or set apart
for payment on all outstanding shares of Series Preferred Stock for such
quarterly dividend period and all preceding quarterly dividend periods from and
after the first day from which dividends are cumulative, then the aggregate
deficiency shall be declared and fully paid or set apart for payment, but
without interest, before any dividends shall be declared or paid or set apart
for payment on the Common Stock by the Corporation. The cutting-off of
dividends on Common Stock until the arrearages have been paid or provided for,
as outlined above, and such rights, if any, to vote for the election of
directors as may be set forth in the Prospectus Supplement relating to a series
of Series Preferred Stock, shall be the only consequences of the failure to
declare or pay dividends on the Series Preferred Stock. After payment in full
of all dividend arrearages on the Series Preferred Stock, dividends on the
Common Stock may be declared and paid out of funds legally available for that
purpose as the Board of Directors may determine.
Each series of the Series Preferred Stock will be entitled to dividends as
described in the Prospectus Supplement relating to such series. Different
series of the Series Preferred Stock may be entitled to dividends at different
dividend rates or based upon different methods of determination.
OPTIONAL REDEMPTION
The Corporation may, at its option, at any time or from time to time on not
less than 30 and not more than 60 days' notice, redeem one or more series of
the Series Preferred Stock, in whole or in part, at the redemption prices and
on the dates set forth in the Prospectus Supplement for the related series of
Series Preferred Stock.
Any optional redemption by the Corporation will be made only with the
approval of the appropriate bank regulatory authorities unless at the time of
redemption such approval is not required. At the date of this Prospectus, the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") require that the optional redemption of any series of
Series Preferred Stock, if such series is to be treated as tier 1 capital of
the Corporation, must be subject to the prior approval of the Federal Reserve
Board.
If less than all the outstanding shares of a series of Series Preferred Stock
are to be redeemed, the selection of the shares to be redeemed will be
determined by lot or pro rata as may be determined by the Board of Directors of
the Corporation or by any other method that the Board of Directors may
determine to be equitable. From and after the redemption date (unless default
shall be made by the Corporation in providing for the payment of the redemption
price), dividends shall cease to accrue on the shares of Series Preferred Stock
called for redemption and all rights of the holders thereof (except the right
to receive the redemption price) shall cease.
At the option of the Corporation, shares of Series Preferred Stock redeemed
or otherwise acquired by the Corporation may be restored to the status of
authorized but unissued shares of Series Preferred Stock.
CONVERSION OR EXCHANGE
The holders of shares of any series of Series Preferred Stock will have such
rights, if any, to convert such shares into, or to exchange such shares for,
cash, shares of Common Stock or shares of any other series of preferred stock
of the Corporation, as may be set forth in the Prospectus Supplement relating
to such series of Series Preferred Stock.
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VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Series Preferred Stock, or except as expressly required by
applicable law, the holders of the Series Preferred Stock will not be entitled
to vote. In the event that the Corporation issues full shares of any series of
Series Preferred Stock, each such share will be generally entitled to one vote
on matters on which holders of such series are entitled to vote, irrespective
of such series' aggregate stated value, liquidation preference or initial
offering price. However, as more fully described under "Depositary Shares"
below, if the Corporation elects to issue Depositary Shares representing a
fraction of a share of a series of Series Preferred Stock, each such Depositary
Share will, in effect, be entitled to the same fraction of a vote, rather than
a full vote, per Depositary Share.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any shares of any series of Series Preferred Stock remain outstanding, the
Corporation shall not amend the Certificate of Incorporation so as to adversely
affect or subordinate the rights of the Series Preferred Stock without the
affirmative vote or consent of the holders of at least a majority of the
outstanding shares of Series Preferred Stock. However, if any such adverse
alteration affects the rights of only a single series of Series Preferred
Stock, then the alteration may be effected only with the vote or consent of at
least a majority of the outstanding shares of such series of Series Preferred
Stock. An increase in the authorized amount of the Series Preferred Stock
and/or the creation and issuance of other series of Series Preferred Stock in
accordance with the Certificate of Incorporation will not be, or be deemed to
be, an adverse alteration.
The foregoing voting provisions will not apply if, in connection with the
matters specified, provision is made for the redemption or retirement of all
outstanding Series Preferred Stock.
Under regulations adopted by the Federal Reserve Board, if the holders of any
series of Series Preferred Stock become entitled to vote for the election of
directors because dividends on such series are in arrears, such series may then
be deemed a "class of voting securities," and a holder of 25% or more of such
series (or a holder of 5% or more if it otherwise exercises a "controlling
influence" over the Corporation) may then be subject to regulation as a bank
holding company in accordance with the Bank Holding Company Act of 1956, as
amended (the "BHC Act"). In addition, at such time (i) any bank holding company
may be required to obtain the approval of the Federal Reserve Board under the
BHC Act, and any foreign bank, and any company that controls a foreign bank,
that has certain types of U.S. banking operations may be required to obtain the
approval of the Federal Reserve Board under the International Banking Act of
1978, as amended, to acquire or retain 5% or more of any series of Series
Preferred Stock and (ii) any person other than a bank holding company may be
required to obtain the approval of the Federal Reserve Board under the Change
in Bank Control Act to acquire 10% or more of such series of Series Preferred
Stock.
LIQUIDATION RIGHTS
Upon any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the Series Preferred Stock will have
preference and priority over the Common Stock for payment out of the assets of
the Corporation or proceeds thereof, whether from capital or surplus, of such
amounts as are set forth in the Prospectus Supplement relating to such series
of Series Preferred Stock and, after such payment, the holders of such series
of Series Preferred Stock will be entitled to no other payments. If, in such
case, the assets of the Corporation or proceeds thereof are insufficient to
make the full liquidating payment on such series of Series Preferred Stock and
liquidating payments on any other outstanding Series Preferred Stock (including
accrued and unpaid dividends, if any), then such assets and proceeds will be
distributed among the holders of such series of Series Preferred Stock and any
other outstanding series of Series Preferred Stock, ratably in accordance with
the respective amounts that would be payable on all Series Preferred Stock
(including accrued and unpaid dividends, if any) if all such liquidating
amounts payable were paid in full. A consolidation or merger of the Corporation
with or into any other corporation or corporations or a sale, whether for cash,
shares of stock, securities or properties, of all or substantially all or any
part of
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the assets of the Corporation will not be deemed or construed to be a
liquidation, dissolution or winding up of the Corporation.
MISCELLANEOUS
Harris Trust Company of New York will serve as transfer agent, dividend
disbursing agent and registrar for the Series Preferred Stock issued in
connection with this Prospectus. The holders of Series Preferred Stock,
including any Series Preferred Stock issued in connection with this Prospectus,
will not have any preemptive rights to purchase or subscribe for any shares of
any class or other securities of any type of the Corporation. When issued, the
Series Preferred Stock will be fully paid and nonassessable. The Certificate of
Amendment of the Certificate of Incorporation setting forth the provisions of
each series of Series Preferred Stock will become effective after the date of
this Prospectus but on or before issuance of the related series of Series
Preferred Stock.
DEPOSITARY SHARES
GENERAL
The Corporation may, at its option, elect to offer fractional shares of
Series Preferred Stock, rather than full shares of Series Preferred Stock. In
the event such option is exercised, the Corporation will issue to the public
receipts for Depositary Shares, each of which will represent a fraction (to be
set forth in the Prospectus Supplement relating to a particular series of
Series Preferred Stock) of a share of a particular series of Series Preferred
Stock as described below.
The shares of any series of Series Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (each, a "Deposit
Agreement") between the Corporation and a bank or trust company selected by the
Corporation, having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000 (each, a "Depositary").
Subject to the terms of the applicable Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of
a share of Series Preferred Stock represented by such Depositary Share, to all
the rights and preferences of the Series Preferred Stock represented thereby
(including dividend, voting, redemption and liquidation rights).
The Depositary Shares relating to any series of Series Preferred Stock will
be evidenced by Depositary Receipts issued pursuant to the applicable Deposit
Agreement. Depositary Receipts will be distributed to those persons purchasing
the fractional shares of the related series of Series Preferred Stock in
accordance with the terms of the offering described in the related Prospectus
Supplement. Copies of the forms of Deposit Agreement and Depositary Receipt are
filed as exhibits to the Registration Statement of which this Prospectus is a
part, and the following summary is qualified in its entirety by reference to
such exhibits.
Pending the preparation of definitive engraved or printed Depositary Receipts
relating to any series of Series Preferred Stock, the applicable Depositary
may, upon the written order of the Corporation, issue temporary Depositary
Receipts substantially identical to (and entitling the holders thereof to all
the rights pertaining to) such definitive Depositary Receipts but not in
definitive form. Definitive Depositary Receipts will be prepared thereafter
without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Corporation's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash distributions
received in respect of any series of Series Preferred Stock represented by
Depositary Shares to the record holders of such Depositary Shares in proportion
to the number of such Depositary Shares owned by such holders.
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In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Corporation, sell such property and distribute the net proceeds from such
sale to such holders.
WITHDRAWAL OF STOCK
Upon surrender of Depositary Receipts at the corporate trust office of the
Depositary (unless the related Depositary Shares have previously been called
for redemption), the holder of the Depositary Shares evidenced thereby will be
entitled to delivery at such office to or upon such holder's order, of the
number of whole shares of the related series of Series Preferred Stock and any
money or other property represented by such Depositary Shares. Holders of
Depositary Shares will be entitled to receive whole shares of the related
series of Series Preferred Stock on the basis set forth in the related
Prospectus Supplement for such series of Series Preferred Stock, but holders of
such whole shares of such Series Preferred Stock will not thereafter be
entitled to receive Depositary Shares in exchange therefor. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of the related series of Series Preferred Stock to be withdrawn, the
Depositary will deliver to such holder at the same time a new Depositary
Receipt evidencing such excess number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of Series Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary upon the redemption, in whole or in part, of such
series of Series Preferred Stock held by the Depositary. The redemption price
per Depositary Share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of Series Preferred Stock.
Whenever the Corporation redeems shares of Series Preferred Stock held by the
Depositary, the Depositary will redeem as of the same redemption date the
number of Depositary Shares representing shares of the related series of Series
Preferred Stock so redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata or by any other method as may be determined by the Depositary to be
equitable.
VOTING THE SERIES PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Series
Preferred Stock are entitled to vote, the Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such Series Preferred Stock. Each record holder of such
Depositary Shares on the record date (which will be the same date as the record
date for the Series Preferred Stock) will be entitled to instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
the Series Preferred Stock represented by such holder's Depositary Shares. The
Depositary will endeavor, insofar as practicable, to vote the amount of the
Series Preferred Stock represented by such Depositary Shares in accordance with
such instructions, and the Corporation will agree to take all action that may
be deemed necessary by the Depositary in order to enable the Depositary to do
so. The Depositary will abstain from voting shares of the Series Preferred
Stock to the extent that it does not receive specific instructions from the
holders of Depositary Shares representing such Series Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing Depositary Shares and any provision
of the applicable Deposit Agreement may at any time be amended by agreement
between the Corporation and the Depositary. However, any amendment that
materially and adversely alters the rights of the holders of Depositary Shares
issued under any Deposit Agreement will not be effective unless such amendment
has been approved by the holders of at least a majority of the Depositary
Shares then outstanding under such Deposit Agreement. A Deposit Agreement may
be terminated by the Corporation or the Depositary only if (i) all outstanding
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Depositary Shares under such Deposit Agreement have been redeemed or (ii) there
has been a final distribution in respect of the related series of Series
Preferred Stock in connection with any liquidation, dissolution or winding up
of the Corporation and such distribution has been distributed to the holders of
Depositary Receipts.
CHARGES OF DEPOSITARY
The Corporation will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Corporation will also pay charges of the Depositary in connection with the
initial deposit of the related series of Series Preferred Stock, any redemption
of such Series Preferred Stock at the option of the Corporation, and any
withdrawals of Series Preferred Stock by the holders of Depositary Shares.
Holders of Depositary Receipts will pay transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
applicable Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
A Depositary may resign at any time by delivering to the Corporation notice
of its election to do so, and the Corporation may at any time remove a
Depositary, and any such resignation or removal will take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
Each Depositary will forward all reports and communications from the
Corporation that are delivered to such Depositary as the holders of the
applicable series of Series Preferred Stock.
Neither a Depositary nor the Corporation will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the applicable Deposit Agreement. The obligations of the
Corporation and the Depositary under each Deposit Agreement will be limited to
performance in good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Series Preferred Stock unless satisfactory indemnity is
furnished. They may rely on written advice of counsel or accountants, or
information provided by persons presenting Series Preferred Stock for deposit,
holders of Depositary Receipts or other persons believed to be competent, and
on documents believed to be genuine.
DESCRIPTION OF THE CORPORATION'S CAPITAL STOCK
The Corporation is authorized to issue 300,000,000 shares of Common Stock,
par value $1.00 per share (the "Common Stock"), and 10,000,000 shares of the
Series Preferred Stock. Neither the Common Stock nor the Series Preferred Stock
has preemptive rights. At the Annual Meeting of the Corporation on April 17,
1990, shareholders voted in favor of an amendment to the Certificate of
Incorporation (the "Proposed Amendment") increasing the number of shares of
authorized preferred stock from 10,000,000 to 20,000,000 by creating a new
class of serial preferred stock, without par value, with 10,000,000 authorized
shares. The Proposed Amendment does not give the holders of serial preferred
stock preemptive rights. The following summary does not purport to be complete
and is subject in all respects to the applicable provisions of the Certificate
of Incorporation and the By-Laws of the Corporation.
COMMON STOCK
Subject to the rights of holders of preferred stock, holders of Common Stock
are entitled to receive dividends when, as and if declared by the Board of
Directors of the Corporation out of any funds legally available therefor, and
are entitled upon liquidation, dissolution or winding up, after claims of
creditors, to
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receive pro rata the net assets of the Corporation. The holders of the Common
Stock are entitled to one vote for each share held and are vested with all of
the voting power except as the Board of Directors shall have provided voting
rights with respect to any series of preferred stock described below.
Holders of shares of Common Stock have non-cumulative voting rights, which
means that the holders of more than 50% of the shares voting for the election
of directors can elect 100% of the directors if they choose to do so, and, in
such event, the holders of the remaining fewer than 50% of the shares voting
for the election of directors will not be able to elect any person or persons
to the Board of Directors. The Common Stock does not have any sinking fund,
conversion or redemption provisions.
Harris Trust Company of New York is the Transfer Agent and Registrar of the
Common Stock of the Corporation. The Common Stock is listed on the New York
Stock Exchange and The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited. At September 30, 1995, there were outstanding
78,687,725 shares of the Corporation's Common Stock.
PREFERRED STOCK
Series Preferred Stock
General. The Series Preferred Stock, of which 10,000,000 shares have been
authorized, upon issuance has preference over the Common Stock with respect to
the payment of dividends and the distribution of assets in the event of
liquidation, dissolution or winding up of the Corporation and such other
rights, preferences and limitations as may be fixed by the Board of Directors.
Dividend provisions, liquidation preferences, voting rights, if any, sinking
fund and redemption provisions, if any, and conversion and exchange provisions,
if any, with respect to each series of Series Preferred Stock also will be
fixed by the Board of Directors. The shares of Series Preferred Stock referred
to in this Prospectus, when issued and paid for, will be validly issued, fully
paid and non-assessable.
Preferred Share Purchase Rights. On February 16, 1988, the Board of Directors
of the Corporation declared a dividend distribution of one Preferred Share
Purchase Right (each, a "Right") for each share of Common Stock held, payable
February 26, 1988 to shareholders of record on that date. Rights also
automatically attach to each share of Common Stock issued after February 26,
1988. The Rights are issued pursuant to an agreement dated as of February 22,
1988 (the "Rights Agreement") between the Corporation and Harris Trust Company
of New York, as Rights Agent, as successor to Morgan Shareholder Services Trust
Company.
Each Right entitles the record holder to purchase from the Corporation a
1/100th interest in a share of the Corporation's Series C Junior Participating
Preferred Stock at an exercise price of $140, subject to certain adjustments.
The Rights will not be exercisable or transferable apart from the Common Stock
until the tenth day after either a public announcement that a person or group
has acquired beneficial ownership of 20% or more of the Common Stock or the
announcement or commencement of a tender offer for 20% or more of the Common
Stock. If the Corporation is acquired or 50% or more of its consolidated assets
or earning power are sold, each holder of a Right will have the right to
receive, upon exercise at the then current exercise price of the Right, that
number of shares of common stock of the acquiring company having a market value
of two times the exercise price of the Right. If any person becomes an
Acquiring Person (as defined in the Rights Agreement) (unless such person first
acquires 20% or more of the outstanding Common Stock by a purchase pursuant to
a tender offer for all of the Common Stock for cash, which purchase increases
such person's beneficial ownership to 80% or more of the outstanding Common
Stock), each holder of a Right other than Rights beneficially owned by the
Acquiring Person (which will be void) will have the right to receive upon
exercise that number of shares of Common Stock having a market value of two
times the exercise price of the Right. The Rights will expire on February 26,
1998, but may be redeemed for $0.01 per Right at any time before a person or
group acquires the beneficial ownership of 20% or more of the Common Stock.
Until a Right is exercised, the holder has no rights as a shareholder of the
Corporation.
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After the acquisition by a person or group of beneficial ownership of 20% or
more of the outstanding Common Stock and prior to the acquisition by such
person or group of 50% or more of the outstanding Common Stock, the Board of
Directors of the Corporation may exchange the Rights (other than Rights owned
by such person or group), in whole or in part, at an exchange ratio of one
share of Common Stock, or a 1/100th interest in a share of Series C Junior
Participating Preferred Stock (or a share of a class or series of the
Corporation's preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
If issued, each share of Series C Junior Participating Preferred Stock will
be entitled, subject to adjustment, to (i) a quarterly dividend of the greater
of $1 per share or 100 times the quarterly dividend declared on each share of
Common Stock, (ii) in the event of liquidation, dissolution or winding up, a
preferential liquidation payment of the greater of $100 per share or 100 times
the liquidation payment made per share of Common Stock, and (iii) 100 votes per
share voting together with the holders of the Corporation's Common Stock on all
matters.
Under certain conditions, the Rights will also be redeemed in connection with
an acquisition of all of the Corporation's Common Stock for cash in a
transaction approved by the Corporation's shareholders. Subject to certain
specified conditions, a special meeting of the Corporation's shareholders to
vote on such a transaction will be called upon the request of a potential
acquiror.
These statements are qualified in their entirety by reference to the Rights
Agreement, a copy of which was filed with the Commission.
8.55% Cumulative Preferred Stock, Series I. On March 1, 1995, the Corporation
issued 1,000,000 shares of its 8.55% Cumulative Preferred Stock, Series I ($100
Liquidation Preference) ("Series I Preferred Stock"). Dividends on the Series I
Preferred Stock will be cumulative. If dividends payable on the Series I
Preferred Stock are in arrears in an amount equivalent to dividends for six
full dividend periods, the number of directors of the Corporation will be
increased by two and the holders of the outstanding Series I Preferred Stock,
voting together as a single class with holders of shares of any other Series
Preferred Stock then outstanding upon which like voting rights have been
conferred and are then exercisable, will be entitled to elect two additional
directors until all dividends in arrears have been declared and paid or set
apart for payment in full. In the event of liquidation, dissolution or winding
up of the Corporation, the holders of the Series I Preferred Stock will be
entitled to receive a distribution of $100 per share, plus, in each case,
accrued and unpaid dividends to the date of final distribution.
The Series I Preferred Stock, will not be redeemable prior to March 1, 1997.
On or after such date, the Series I Preferred Stock will be redeemable at the
option of the Corporation, in whole or in part, at a redemption price of $100
per share, plus accrued and unpaid dividends thereon to the date fixed for
redemption.
Fixed/Adjustable Rate Cumulative Preferred Stock, Series J. On October 28,
1992, the Corporation issued 447,225 shares of the Corporation's
Fixed/Adjustable Rate Cumulative Preferred Stock, Series J ($100 Liquidation
Preference) (the "Series J Preferred Stock"). Dividends on the Series J
Preferred Stock are cumulative. If dividends payable on the Series J Preferred
Stock are in arrears in an amount equivalent to dividends for six full dividend
periods, the number of directors of the Corporation will be increased by two
and the holders of the outstanding Series J Preferred Stock, voting together as
a single class with holders of shares of any other Series Preferred Stock then
outstanding upon which like voting rights have been conferred and are then
exercisable, will be entitled to elect two additional directors until all
dividends in arrears have been declared and paid or set apart for payment in
full. In the event of liquidation, dissolution or winding up of the
Corporation, the holders of the Series J Preferred Stock are entitled to
receive a distribution of $100 per share, plus, in each case, accrued and
unpaid dividends to the date of final distribution.
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Except under certain circumstances, shares of Series J Preferred Stock are
not redeemable prior to December 1, 1995. On or after such date and prior to
December 1, 1997, shares of Series J Preferred Stock are redeemable at the
option of the Corporation at a redemption price per share of $103.00 and
thereafter at $100 per share. The redemption price set forth above with respect
to Series J Preferred Stock will be increased, in each case, by the amount of
accrued and unpaid dividends thereon to the date fixed for redemption.
The dividend rate on the Series J Preferred Stock for each dividend period to
December 1, 1997 is 7 3/8% per annum. Thereafter, dividends on the Series J
Preferred Stock will be established quarterly at a rate per annum equal to the
sum of (i) the amount determined by applying the effective rate (as defined
below) in effect from time to time and (ii) the amount (not to exceed $0.50 per
share) by which the regular quarterly cash dividend per share, if any, declared
on the Corporation's Common Stock during the immediately preceding dividend
period exceeds the last regular quarterly cash dividend per share actually paid
by the Corporation on the Common Stock prior to September 1, 1997. The
"effective rate" for any dividend period will be equal to .25% over the highest
of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty
Year Constant Maturity Rate, each as defined in the Certificate of
Incorporation, determined for the dividend period. The effective rate for any
dividend period, however, will not be less than 7% per annum nor greater than
15% per annum. Under certain circumstances, the amount of dividends payable or
accrued in respect of shares of the Series J Preferred Stock will be adjusted
to take account of certain amendments to the Code. In no event will the
dividends payable on the Series J Preferred Stock exceed 17% per annum.
Auction Rate Cumulative Preferred Stock, Series K, L, M and N. On January 22,
1993, in connection with the issuance of an exchangeable preferred stock issued
by a wholly owned indirect subsidiary of the Corporation, the Corporation
issued and held in treasury its Auction Rate Cumulative Stock, Series K, L, M
and N (the "Auction Rate Preferred Stock"), each series having 625 shares and
each share having a liquidation preference of $100,000, plus accrued and unpaid
dividends, and contingent voting rights. The Auction Rate Preferred Stock is
being held for exchange as fully described in the Certificate of Incorporation.
Each of the four series is identical except that, when exchanged, the dividend
rates and dividend payment dates vary and separate auctions on different dates
are held for each series.
The shares of each of these series of Auction Rate Preferred Stock are
redeemable, as a whole or in part, except under certain conditions, at the
option of the Corporation, at a redemption price of $100,000 per share plus an
amount equal to accrued and unpaid dividends.
When exchanged for the exchangeable preferred stock, each series of the
Auction Rate Preferred Stock will pay a dividend for the applicable dividend
period (generally 49 days) at a rate that is determined by an auction conducted
on each such series of Auction Rate Preferred Stock on the business day
preceding the commencement of a subsequent dividend period. The rate for any
dividend period is subject to a maximum rate based upon the Three-Point ARP
Index, as defined in the Certificate of Incorporation, in effect on a
particular auction date, but in no event will such rate for any dividend period
exceed 24%.
7 5/8% Cumulative Preferred Stock, Series O. On June 2, 1993, the Corporation
issued $150 million of 7 5/8% Convertible Capital Securities due June 2033.
These debt securities are subordinated and can be redeemed in whole, but not in
part, on or after June 1, 1998 at par, plus accrued and unpaid interest to the
redemption date. The Corporation, at its option, may reset at any time the
interest rate of the 7 5/8% Convertible Capital Securities to a rate of 6 1/8%
per annum. The Corporation opted to reset the interest rate to 6 1/8% per
annum, effective March 1, 1995. Holders have the right, at any time prior to
redemption or maturity, to convert the debt securities into depositary shares,
at $25 per share, each representing a one-tenth interest in a share of the
Corporation's 7 5/8% Cumulative Preferred Stock, Series O (Liquidation
Preference $250 per share) (the "Series O Preferred Stock").
On September 1, 1995, approximately 5,885,000 depositary receipts had been
issued each evidencing a depositary share representing a one-tenth interest in
a share of the Series O Preferred Stock. The aggregate
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liquidation preference of the shares represented by such depositary shares on
such date was approximately $147,125,000.
Dividends on the Series O Preferred Stock are cumulative and payable
quarterly on each March 1, June 1, September 1 and December 1, commencing with
the first such date succeeding original issuance. If dividends payable on the
Series O Preferred Stock are in arrears in an amount equivalent to dividends
for six full dividend periods, the number of directors of the Corporation will
be increased by two and the holders of the outstanding Series O Preferred
Stock, voting together as a single class with holders of shares of any other
series of series preferred stock then outstanding upon which like voting
rights have been conferred and are then exercisable, will be entitled to elect
two additional directors until all dividends in arrears on the Series O
Preferred Stock have been declared and paid or set apart for payment in full.
In the event of any liquidation, dissolution or winding up of the Corporation,
the holders of the Series O Preferred Stock will be entitled to receive a
distribution of $250 per share plus, in each case, an amount equal to accrued
and unpaid dividends to the date of final distribution. Shares of the Series O
Preferred Stock are redeemable at the Corporation's option, in whole or in
part, at any time at a redemption price of $300 per share on or before June 1,
1998 and thereafter at $250 per share, plus, in each case, accrued and unpaid
dividends to the redemption date.
7.50% Cumulative Preferred Stock, Series P. On August 19, 1993, the
Corporation issued $100 million of 7.50% Convertible Capital Securities due
August 2033. These debt securities are subordinated and can be redeemed, in
whole but not in part, on or after August 15, 1998 at par, plus accrued and
unpaid interest to the redemption date. The Corporation, at its option, may
reset at any time the interest rate on the 7.50% Convertible Capital
Securities to a rate of 6.00% per annum. The Corporation opted to reset the
interest rate to 6.00% per annum, effective May 15, 1995. Holders have the
right, at any time prior to redemption or maturity, to convert the debt
securities into depositary shares, at $25 per share, each representing a one-
fortieth interest in a share of the Corporation's 7.50% Cumulative Preferred
Stock, Series P (Liquidation Preference $1,000 per share) (the "Series P
Preferred Stock").
On October 15, 1995, approximately 3,933,000 depositary receipts had been
issued each evidencing a depositary share representing a one-fortieth interest
in a share of the Series P Preferred Stock. The aggregate liquidation
preference of the shares represented by such depositary shares on such date
was approximately $98,325,000.
Dividends on the Series P Preferred Stock are cumulative and payable
quarterly on each February 15, May 15, August 15 and November 15, commencing
with the first such date succeeding original issuance. If dividends payable on
the Series P Preferred Stock are in arrears in an amount equivalent to
dividends for six full dividend periods, the number of directors of the
Corporation will be increased by two and the holders of the outstanding Series
P Preferred Stock, voting together as a single class with holders of shares of
any other series of series preferred stock then outstanding upon which like
voting rights have been conferred and are then exercisable, will be entitled
to elect two additional directors until all dividends in arrears on the Series
P Preferred Stock have been declared and paid or set apart for payment in
full. In the event of any liquidation, dissolution or winding up of the
Corporation, the holders of the Series P Preferred Stock will be entitled to
receive a distribution of $1,000 per share plus, in each case, an amount equal
to accrued and unpaid dividends to the date of final distribution. Shares of
Series P Preferred Stock are redeemable at the Corporation's option, in whole
or in part, at any time at a redemption price of $1,200 per share on or before
August 15, 1998 and thereafter at $1,000 per share, plus, in each case,
accrued and unpaid dividends to the redemption date.
Adjustable Rate Cumulative Preferred Stock, Series Q. On March 28, 1994, the
Corporation issued 80,000 shares of its Adjustable Rate Cumulative Preferred
Stock, Series Q ($2,500 liquidation preference) (the "Series Q Preferred
Stock"). The dividend rate on the Series Q Preferred Stock is equal to 85% of
the Effective Rate (as defined below) in effect from time to time, but in no
event less than 4 1/2% or more than 10 1/2% per annum. The "Effective Rate"
for the Series Q Preferred Stock for each quarterly dividend period is the
highest of the "Treasury Bill Rate," the "Ten Year Constant Maturity Rate" and
the "Thirty Year Constant Maturity Rate" determined in advance of such
dividend period. If dividends payable on the Series Q
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<PAGE>
Preferred Stock are in arrears in an amount equivalent to dividends for six
full dividend periods, the number of directors of the Corporation will be
increased by two and the holders of the outstanding Series Q Preferred Stock,
voting together as a single class with holders of shares of any other series of
series preferred stock then outstanding upon which like voting rights have been
conferred and are then exercisable, will be entitled to elect two additional
directors until all dividends in arrears on the Series Q Preferred Stock have
been declared and paid or set apart for payment in full. In the event of any
liquidation, dissolution or winding up of the Corporation, the holders of the
Series Q Preferred Stock will be entitled to receive a distribution of $2,500
per share plus, in each case, an amount equal to accrued and unpaid dividends
to the date of final distribution. The Series Q Preferred Stock is redeemable
at the option of the Corporation, in whole or in part, at any time or from time
to time on or after March 1, 1999. The redemption price payable by the
Corporation in respect of any such redemption will be $2,500 per share plus
accrued and unpaid dividends to the redemption date.
Adjustable Rate Cumulative Preferred Stock, Series R. On August 22, 1994, the
Corporation issued 60,000 shares of its Adjustable Rate Cumulative Preferred
Stock, Series R ($2,500 liquidation preference) (the "Series R Preferred
Stock"). The dividend rate on the Series R Preferred Stock is equal to 84.5% of
the Effective Rate (as defined below) in effect from time to time, but in no
event less than 4 1/2% or more than 10 1/2% per annum. The "Effective Rate" for
the Series R Preferred Stock for each quarterly dividend period is the highest
of the "Treasury Bill Rate," the "Ten Year Constant Maturity Rate" and the
"Thirty Year Constant Maturity Rate" determined in advance of such dividend
period. If dividends payable on the Series R Preferred Stock are in arrears in
an amount equivalent to dividends for six full dividend periods, the number of
directors of the Corporation will be increased by two and the holders of the
outstanding Series R Preferred Stock, voting together as a single class with
holders of shares of any other series of series preferred stock then
outstanding upon which like voting rights have been conferred and are then
exercisable, will be entitled to elect two additional directors until all
dividends in arrears on the Series R Preferred Stock have been declared and
paid or set apart for payment in full. In the event of any liquidation,
dissolution or winding up of the Corporation, the holders of the Series R
Preferred Stock will be entitled to receive a distribution of $2,500 per share
plus, in each case, an amount equal to accrued and unpaid dividends to the date
of final distribution. The Series R Preferred Stock is redeemable at the option
of the Corporation, in whole or in part, at any time or from time to time on or
after March 1, 1999. The redemption price payable by the Corporation in respect
of any such redemption will be $2,500 per share plus accrued and unpaid
dividends to the redemption date.
7 3/4% Cumulative Preferred Stock, Series S. On June 30, 1995, the
Corporation issued 50,000 shares of its Adjustable Rate Cumulative Preferred
Stock, Series S ($2,500 liquidation preference) (the "Series S Preferred
Stock"). If dividends payable on the Series S Preferred Stock are in arrears in
an amount equivalent to dividends for six full dividend periods, the number of
directors of the Corporation will be increased by two and the holders of the
outstanding Series S Preferred Stock, voting together as a single class with
holders of shares of any other series of series preferred stock then
outstanding upon which like voting rights have been conferred and are then
exercisable, will be entitled to elect two additional directors until all
dividends in arrears on the Series S Preferred Stock have been declared and
paid or set apart for payment in full. In the event of any liquidation,
dissolution or winding up of the Corporation, the holders of the Series S
Preferred Stock will be entitled to receive a distribution of $2,500 per share
plus, in each case, an amount equal to accrued and unpaid dividends to the date
of final distribution. The Series S Preferred Stock is redeemable at the option
of the Corporation, in whole or in part, at any time or from time to time on or
after June 1, 2000. The redemption price payable by the Corporation in respect
of any such redemption will be $2,500 per share plus accrued and unpaid
dividends to the redemption date.
SERIAL PREFERRED STOCK
The Proposed Amendment relating to the serial preferred stock would authorize
10,000,000 shares, which shares of stock upon issuance would have preference
over the Common Stock with respect to the payment of dividends and the
distribution of assets in the event of liquidation, dissolution or winding up
of the Corporation and such other rights, preferences and limitations as may be
fixed by the Board of Directors. The serial preferred stock upon issuance would
rank on a parity with the Series Preferred Stock with respect
24
<PAGE>
to the payment of dividends and the distribution of assets in the event of
liquidation, dissolution or winding up of the Corporation. Dividend provisions,
liquidation preferences, voting rights, if any, sinking fund and redemption
provisions, if any, and conversion and exchange provisions, if any, would be
fixed by the Board of Directors. There are currently no outstanding shares of
serial preferred stock. The Board of Directors has determined not to cause the
Proposed Amendment to be filed at this time.
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 White &
Case, New York, New York. White & Case performs services for the Corporation
from time to time. Mr. Calder has an interest in a number of shares equal to
less than .02% of the Corporation's outstanding Common Stock.
EXPERTS
The consolidated financial statements of the Corporation for the year ended
December 31, 1994, appearing in the Corporation's Annual Report on Form 10-K
for the year ended December 31, 1994, and incorporated by reference into this
Prospectus, have been audited by Ernst & Young LLP, 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.
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 offer and sell the Offered
Securities in exchange for one or more of its outstanding issues of debt
securities or Series Preferred Stock. 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 as shall be set forth in any
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
agent. 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 agent.
25
<PAGE>
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 amount 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 amount of the Offered Securities less the principal amount 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, except Common Stock, 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 may also be delivered in connection with sales of the 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.
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<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............................ $344,828
Legal fees and expenses.......................................... 50,000*
Accounting fees and expenses..................................... 50,000*
Blue sky fees and expenses....................................... 30,000*
Printing and engraving fees...................................... 100,000*
Trust indenture fees and expenses................................ 50,000*
Depositary's fees and expenses................................... 10,000
Rating agency fees............................................... 100,000*
NASD Fees........................................................ 30,500
Miscellaneous.................................................... 34,672
--------
Total.......................................................... $800,000*
========
</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.
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<PAGE>
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 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 the specific request of
the corporation, evidenced by a written communication signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Senior Vice Chairman
or any Vice Chairman, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer, or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5.05 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
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<PAGE>
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.
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 Common Stock and Series Preferred
Stock.
*3.1 --Restated Certificate of Incorporation of the Registrant filed with
the State of New York on June 9, 1988 (filed as an Exhibit to the
Registrant's Current Report on Form 8-K dated September 24, 1993,
file number 1-5920).
*3.2 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on August 30,
1989 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated September 24, 1993, file number 1-5920).
*3.3 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on June 14,
1990 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated September 24, 1993, file number 1-5920).
*3.4 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on March 20,
1992 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated September 24, 1993, file number 1-5920).
*3.5 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on October
27, 1992 (filed as an Exhibit to the Registrant's Current Report on
Form 8-K dated September 24, 1993, file number 1-5920).
*3.6 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on January
21, 1993 (filed as an Exhibit to the Registrant's Current Report on
Form 8-K dated September 24, 1993, file number 1-5920).
*3.7 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on June 1,
1993 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated September 24, 1993, file number 1-5920).
*3.8 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on August 18,
1993 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated August 6, 1993, file number 1-5920).
*3.9 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on March 25,
1994 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated March 21, 1994, file number 1-5920).
*3.10 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on August 22,
1994 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated August 12, 1994, file number 1-5920).
*3.11 --Certificate of Amendment of the Restated Certificate of Incorpora-
tion of the Registrant filed with the State of New York on June 29,
1995 (filed as an Exhibit to the Registrant's Current Report on Form
8-K dated June 29, 1995, file number 1-5920).
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*3.12 --By-Laws of the Registrant (filed as an Exhibit to the Registrant's
Current Report on Form 8-K dated November 10, 1995, file number 1-
5920).
4.1 --Form of Certificate of Common Stock.
4.2 --Form of Certificate for Series Preferred Stock.
4.3 --Form of Certificate of Amendment of the Restated Certificate of In-
corporation of the Registrant.
4.4 --Form of Deposit Agreement.
4.5 --Form of Depositary Receipt (included as Exhibit A to Exhibit 4.4
hereof).
*4.6 --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).
*4.7 --Form of First Supplemental Indenture, dated as of September 1, 1993,
between the Registrant and The Chase Manhattan Bank (National Associ-
ation (filed as an Exhibit to the Registrant's Current Report on Form
8-K, dated October 22, 1993, file number 1-5920)).
*4.8 --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).
*4.9 --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).
4.10 --Form of Indenture relating to Subordinated Debt Securities.
5.1 --Opinions re Validity.
*12.1 --Computation of Consolidated Ratios of Earnings to Fixed Charges
(filed as an Exhibit to the Registrant's Quarterly Report on Form 10-
Q for the quarter ended September 30, 1995, file number 1-5920).
*12.2 --Computation of Consolidated Ratios of Earnings to Combined Fixed
Charges and Preferred Stock Dividend Requirements (filed as an Ex-
hibit to the Registrant's Quarterly Report on Form 10-Q for the quar-
ter ended September 30, 1995, 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 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Marine Midland Bank, N.A., as amended.
</TABLE>
- --------
* Incorporated by reference.
** To be filed by amendment.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; 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;
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<PAGE>
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
herein, and the offering of such securities at that time shall be deemed to be
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-5
<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 REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON THE 22ND DAY OF
DECEMBER, 1995.
Bankers Trust New York Corporation
/s/ Duncan P. Hennes
By:__________________________________
(DUNCAN P. HENNES) SENIOR VICE
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATE INDICATED:
SIGNATURE TITLE DATE
Charles S. Sanford, Jr.* Chairman of the December 22,
- ------------------------------------- Board, Chief 1995
(CHARLES S. SANFORD, JR.) Executive Officer
and Director
(Principal
Executive Officer)
Timothy T. Yates* Executive Vice December 22,
- ------------------------------------- President and Chief 1995
(TIMOTHY T. YATES) Financial Officer
(Principal
Financial Officer)
Geoffrey M. Fletcher* Senior Vice December 22,
- ------------------------------------- President 1995
(GEOFFREY M. FLETCHER) (Principal
Accounting Officer)
George B. Beitzel* Director December 22,
- ------------------------------------- 1995
(GEORGE B. BEITZEL)
Phillip A. Griffiths Director December 22,
- ------------------------------------- 1995
(PHILLIP A. GRIFFITHS)
William R. Howell* Director December 22,
- ------------------------------------- 1995
(WILLIAM R. HOWELL)
Jon M. Huntsman* Director December 22,
- ------------------------------------- 1995
(JON M. HUNTSMAN)
II-6
<PAGE>
SIGNATURE TITLE DATE
Vernon E. Jordan, Jr. Director December 22,
- ------------------------------------- 1995
(VERNON E. JORDAN, JR.)
Hamish Maxwell* Director December 22,
- ------------------------------------- 1995
(HAMISH MAXWELL)
Director
- -------------------------------------
(DONALD F. MCCULLOUGH)
N.J. Nicholas Jr.* Director December 22,
- ------------------------------------- 1995
(N.J. NICHOLAS JR.)
Russell E. Palmer* Director December 22,
- ------------------------------------- 1995
(RUSSELL E. PALMER)
Patricia C. Stewart* Director December 22,
- ------------------------------------- 1995
(PATRICIA C. STEWART)
George J. Vojta* Director December 22,
- ------------------------------------- 1995
(GEORGE J. VOJTA)
/s/ Duncan P. Hennes
*By _________________________________
(DUNCAN P. HENNES, ATTORNEY-IN-FACT)
II-7
<PAGE>
Exhibit 1.1
BANKERS TRUST NEW YORK CORPORATION
Debt Securities
---------------
Underwriting Agreement
Standard Provisions
(December 1995)
______________________________
From time to time, BANKERS TRUST NEW YORK CORPORATION, a New York
corporation (the "Corporation"), may enter into one or more underwriting
agreements that provide for the sale of designated debt securities (the
"Securities") to one or more underwriters named therein (the "Underwriters"),
severally where there are more than one. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as this Agreement.
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. If an Underwriting Agreement provides for the
purchase of the Securities by an Underwriter or Underwriters, but does not
provide for a Manager or Managers, the references to the Manager herein shall be
deemed to refer to such Underwriter or Underwriters.
I.
The Corporation has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33-_____),
including a prospectus relating to, among other securities, the Securities and
has filed with the Commission a prospectus supplement specifically relating to
the issue of the Securities pursuant to Rule 424 under the Securities Act of
1933. The term "Registration Statement" means such registration statement as
amended to the date of the Underwriting Agreement. The term "Basic Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
specifically relating to the
<PAGE>
Securities, as filed with, or mailed for filing to, the Commission pursuant to
Rule 424. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Securities together with the Basic
Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the material, if any, incorporated by reference therein.
The term "Underwriters' Securities" means the Securities to be purchased
by the Underwriters hereunder. The term "Contract Securities" means the
Securities, if any, to be purchased pursuant to the delayed delivery contracts
referred to below.
II.
If the Prospectus provides for sales of Contract Securities, the
Corporation hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to delayed delivery contracts substantially in the form of
Schedule I attached hereto ("Delayed Delivery Contracts") but with such changes
therein as the Corporation may authorize or approve. Delayed Delivery Contracts
are to be with institutional investors approved by the Corporation and of the
types set forth in the Prospectus. On the Closing Date (as hereinafter
defined), the Corporation will pay the Manager as compensation, for the accounts
of the Underwriters, the fee set forth in the Underwriting Agreement in respect
of the principal amount of the Contract Securities. The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts.
If the Corporation executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Securities to be purchased by each Underwriter shall be
reduced pro rata in proportion to the principal amount of Securities set forth
opposite each Underwriter's name in the Underwriting Agreement, except to the
extent that the Manager determines that such reduction shall be otherwise and so
advises the Corporation.
-2-
<PAGE>
III.
The Corporation is advised by the Manager that the Underwriters propose
to make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Corporation in
immediately available funds or in such other manner and such other funds as may
be mutually agreed upon by the Corporation and the Manager and set forth in the
Underwriting Agreement, at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the "Closing Date."
V.
The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and there shall have been
no material adverse change (not in the ordinary course of business) in the
financial condition or results of operations of the Corporation and its
subsidiaries, taken as a whole, from that set forth in the Prospectus since
the effective dates as of which information is given therein; and the
Manager shall have received, on the Closing Date, a certificate, dated the
Closing Date and signed by an executive officer of the Corporation, to the
foregoing effect and also to the effect that the representations and
warranties of the Corporation in this Agreement are true and correct in all
material respects as of the Closing Date. The officer making such
certificate may
-3-
<PAGE>
rely upon the best of his knowledge as to proceedings pending or
threatened.
(b) The Manager shall have received on the Closing Date an opinion of
counsel for the Corporation, dated the Closing Date, to the effect set
forth in Exhibit A, and, unless otherwise agreed, an opinion of tax counsel
for the Corporation, dated the Closing Date, covering such matters as may
be mutually agreed upon by such tax counsel and the Manager and set forth
in the Underwriting Agreement.
(c) The Manager shall have received on the Closing Date from White &
Case, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Corporation, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as the Manager may require, and the Corporation shall
furnish to such counsel such documents as they may reasonably request for
the purposes of enabling them to pass upon such matters.
(d) On the Closing Date the Manager shall have received a letter,
dated the Closing Date and in form and substance satisfactory to the
Manager, from the independent accountants to the Corporation, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus, and confirming that
they are independent accountants within the meaning of the Securities Act
of 1933 and the Securities Exchange Act of 1934 and the respective
applicable published rules and regulations thereunder.
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Corporation covenants as follows:
(a) To furnish the Manager, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any
-4-
<PAGE>
supplements and amendments thereto as the Manager may reasonably request.
The terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents filed by the Corporation with the Commission
subsequent to the date of the Basic Prospectus, pursuant to the Securities
Exchange Act of 1934, which are deemed to be incorporated by reference in
the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Securities, to furnish the Manager with
a copy of each such proposed amendment or supplement.
(c) If, at any time during the period following the public offering
of the Securities during which, in the opinion of counsel for the
Underwriters, the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to ensure that the Prospectus does not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
under which they were made, be misleading or so that the Prospectus will
comply with law, as the case may be.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification, the
determination of the eligibility of the Securities for investment under the
laws of such jurisdictions as the Manager may reasonably designate, the
printing of any memoranda concerning the aforesaid qualification or
eligibility and the rating of the Securities by securities rating services.
(e) To make generally available to the Corporation's security holders
as soon as practicable, but not later than sixteen months, after the date
of each Underwriting Agreement an earnings statement
-5-
<PAGE>
covering a period of at least twelve months beginning after the later of
(i) the effective date of the Registration Statement, (ii) the effective
date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of such Underwriting
Agreement, and (iii) the date of the Corporation's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Underwriting Agreement, which shall satisfy the provisions of Section 11(a)
of the Securities Act of 1933.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of the Closing Date
or the removal by the Manager of trading restrictions on the Securities,
not to offer, sell, contract to sell or otherwise dispose of (other than
upon exercise of warrants therefor, or on conversion of convertible
securities, in each case outstanding at the date of the Underwriting
Agreement or in an offering made exclusively outside the United States) any
securities of the Corporation substantially similar to the Securities
without the prior written consent of the Manager.
VII.
The Corporation covenants and agrees with each Underwriter that the
Corporation will pay or cause to be paid the following: (i) the fees for the
registration of the Securities under the Act; (ii) the fees, disbursements and
expenses of the Corporation's accountants in connection with the registration of
the Securities under the Act and all other expenses incurred by it in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements thereto and delivery
of copies thereof to the Underwriters; (iii) all expenses (including reasonable
fees and disbursements of counsel) payable pursuant to paragraph (d) of Article
VI of this Agreement; (iv) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities, fees paid in connection with any listing of the
Securities on the New York Stock Exchange or any other stock exchange or
quotation system and any fees of rating agencies; (v) all costs and expenses
incurred in the preparation and printing of the Prospectus, the Registration
Statement and any amendments or supplements thereto, this Agreement and all
other documents relating to the issuance,
-6-
<PAGE>
underwriting and initial offering of the Securities; (vi) all costs, fees and
expenses relating to the preparation and filing via the Commission's Electronic
Data Gathering and Retrieval System of the Prospectus, the Registration
Statement and any amendments or supplements thereto, this Agreement and all
other documents relating to the issuance, underwriting and initial offering of
the Securities; and (vii) all other costs and expenses incident to the
performance by the Corporation of its obligations hereunder that are not
otherwise specifically provided for in this Article.
VIII.
The Corporation represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the Securities Exchange
Act of 1934 and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with such Act and the rules and
regulations thereunder; (ii) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Securities Act of 1933 relating to the Securities, when such
part became effective, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (iii) each preliminary prospectus,
if any, filed pursuant to Rule 424 under the Securities Act of 1933 complied
when so filed in all material respects with such Act and the applicable rules
and regulations thereunder; (iv) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act of 1933 and the applicable rules and
regulations thereunder; and (v) the Registration Statement and the Prospectus do
not contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that these representations and
warranties do not apply to statements in or omissions from the Registration
Statement, any preliminary prospectus or the Prospectus based upon information
furnished to the Corporation in writing by an Underwriter expressly for use
therein.
The Corporation agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either
-7-
<PAGE>
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus, or in any blue sky application or related document
prepared pursuant to paragraph (d) of Article VI hereof, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Corporation by an Underwriter
expressly for use therein; provided that the foregoing indemnity agreement with
--------
respect to any Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such Underwriter, if (i) the
loss, claim, damage or liability asserted by such purchaser was caused by a
defect in the Prospectus delivered to such purchaser after the period referred
to in paragraph (c) of Article VI of this Agreement and such defect would not
have existed before the expiry of such period, or (ii) a copy of the Prospectus
(as then amended or supplemented if the Corporation shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of the Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Corporation, its directors and its officers who sign the
Registration Statement, any authorized representative of the Corporation and any
person controlling the Corporation to the same extent as the foregoing indemnity
from the Corporation to each Underwriter, but only with reference to information
furnished in writing by such Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus and any amendments or
supplements thereto.
In case any proceeding (including any governmental investigation) shall
be threatened or instituted involving any person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
-8-
<PAGE>
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. In
the case of parties indemnified pursuant to the second preceding paragraph, such
separate firm shall be designated in writing by the Manager. In the case of
parties indemnified pursuant to the immediately preceding paragraph, such
separate firm shall be designated in writing by the Corporation. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
If the indemnification provided for in this Article VII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Corporation on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Corporation on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable
-9-
<PAGE>
considerations. The relative benefits received by the Corporation on the one
hand and the Underwriters on the other in connection with the offering of the
Securities shall be deemed to be in the same proportion as the total net
proceeds (before deducting expenses) from the offering of such Securities
received by the Corporation bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Corporation on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Corporation or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statements or omissions.
The Corporation and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if all of the Underwriters are treated as a single entity
for such purpose) or by any other method of allocation that does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Article VII, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total public offering price of the Securities purchased by such Underwriter
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VII are several, in proportion to the respective principal amounts of
Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VIII
and the representations and warranties of the Corporation in this Agreement
shall remain operative and in full force and effect regardless of (i) any
-10-
<PAGE>
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Corporation, its directors or officers, any authorized
representative of the Corporation or any person controlling the Corporation and
(iii) acceptance of and payment for any of the Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Corporation, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange,
or on any other stock exchange or automated quotation system on which the
Securities are or are to be listed or to which the Securities have been or are
to be admitted for quotation, shall have been suspended or materially limited,
(ii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iii)
there shall have occurred any material outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the Manager,
impracticable to market the Securities.
X.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Securities that it or they have agreed to purchase hereunder
and the aggregate principal amount of Securities that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions which the aggregate principal amount of Securities set forth
opposite their names in the Underwriting Agreement bears to the aggregate
principal amount of Securities set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate
-11-
<PAGE>
principal amount of Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Corporation for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
thereupon terminate without liability on the part of any non-defaulting
Underwriter or of the Corporation. In any such case either the Manager or the
Corporation shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
XI.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Corporation to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Corporation shall be unable to perform its obligations
under this Agreement, the Corporation will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement, with respect to themselves,
severally, for all reasonable out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with the Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-12-
<PAGE>
EXHIBIT A
----------
Opinion of Counsel to the Corporation
The opinion of counsel to the Corporation to be delivered pursuant to
Article V, paragraph (b) of the document entitled Bankers Trust New York
Corporation Debt Securities Underwriting Agreement Standard Provisions
(December 1995) shall be to the effect that:
(i) the Corporation has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of New York,
is duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended, and has all requisite corporate power and
authority to own its properties and conduct its business as described in
the Prospectus;
(ii) Bankers Trust Company has been duly incorporated, is validly
existing as a banking corporation in good standing under the laws of the
State of New York, and has all requisite corporate power and authority to
own its properties and to conduct its business as described in the
Prospectus;
(iii) the Indenture has been duly authorized, executed and delivered
by the Corporation, is a valid and binding agreement of the Corporation
enforceable in accordance with its terms, and has been duly qualified under
the Trust Indenture Act of 1939, as amended;
(iv) the Securities have been duly authorized, executed,
authenticated, issued and delivered and are valid and binding obligations
of the Corporation enforceable in accordance with their terms;
(v) if applicable, the Securities are convertible into Common Stock,
par value $1.00 per share, or Series Preferred Stock, without par value, of
the Corporation in accordance with their terms; the shares of such Common
Stock or Series Preferred Stock initially issuable upon conversion of the
Securities have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly issued,
fully paid and nonassessable subject to Section 630 of the New York
Business Corporation Law; and the holders of outstanding shares of capital
<PAGE>
stock of the Corporation are not entitled to preemptive rights with respect
to such Common Stock or Preferred Stock;
(vi) the Securities and, if applicable, the shares of Common Stock or
Series Preferred Stock issuable upon conversion of such Securities have
been duly authorized for listing, in each case subject to official notice
of issuance, on the New York Stock Exchange or such other stock exchange or
automated quotation system on or to which such Securities and, if
applicable, Common Stock or Series Preferred Stock, are or are to be listed
or admitted;
(vii) the Underwriting Agreement has been duly authorized, executed
and delivered by the Corporation;
(viii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Corporation and are valid and
binding agreements of the Corporation enforceable in accordance with their
respective terms;
(ix) the issuance and sale of the Securities and, if applicable, the
issuance and sale of the Common Stock or Series Preferred Stock issuable
upon conversion thereof, and the execution, delivery and performance by the
Corporation of the Underwriting Agreement will not contravene any
provisions of applicable Federal or New York law or regulation, the
certificate of incorporation or by-laws of the Corporation, or to the
knowledge of such counsel, any agreement or other instrument binding upon
the Corporation;
(x) no consent, approval, authorization or other order of any
governmental or regulatory body is required for the issuance and the sale
of the Securities or, if applicable, the issuance of the Common Stock or
Series Preferred Stock issuable upon conversion thereof, and the execution,
delivery and performance of the Underwriting Agreement, except for the
order of the Securities and Exchange Commission making the Registration
Statement effective and except as may be required under the State
securities and Blue Sky laws;
(xi) the statements in the Prospectus Supplement under the caption
"Certain Terms of the Securities," and in the Basic Prospectus under the
caption "Description of Debt Securities," insofar as such
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<PAGE>
statements constitute a summary of the documents or proceedings referred to
therein, fairly present the matters referred to therein;
(xii) the Registration Statement and Prospectus (except as to
financial statements and schedules and other financial data contained
therein, as to which such counsel need not express any opinion) comply as
to form in all material respects with the Securities Act of 1933, as
amended, and the rules and regulations thereunder; and each document filed
pursuant to the Securities Exchange Act of 1934, as amended, and
incorporated by reference in the Prospectus (except as to financial
statements and schedules and other financial data contained therein, as to
which such counsel need not express any opinion) complied when so filed as
to form in all material respects with such Act and the rules and
regulations thereunder;
(xiii) such counsel believes that (except for the financial
statements and schedules and other financial data and any statements
concerning the laws of tax contained therein, as to which such counsel need
not express any belief) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Securities
and Exchange Commission, when such part became effective, did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and such counsel believes that (except for the financial
statements and schedules and other financial data and any statements
concerning the laws of tax contained therein, as to which such counsel need
not express any belief) the Registration Statement and the Prospectus as of
their respective effective or issue dates did not, and the Prospectus on
the Closing Date does not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(xiv) the statements as to matters of law contained in the
Corporation's Annual Report on Form 10-K most recently filed with the
Securities and Exchange Commission under the caption "Supervision and
Regulation" were correct as of the date such report was filed with the
Securities and Exchange Commission and such statements fairly presented the
matters referred to therein.
-3-
<PAGE>
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Corporation and public officials.
Referring to clauses (iii), (iv), (v) and (viii) above, such counsel may make
the expression of opinion as to the validity and enforceability of the
agreements or obligations referred to therein 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. Further, such counsel may state that he does not express an opinion
as to any law other than the law of the State of New York and the Federal law of
the United States of America and that he does not express any opinion as to
Federal or New York State tax law. Counsel may take such other exceptions as
may be mutually agreed upon by such counsel and the Manager and set forth in the
Underwriting Agreement.
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<PAGE>
FORM OF DELAYED DELIVERY CONTRACT
___________, 19__
Bankers Trust New York Corporation,
280 Park Avenue,
New York, New York 10017.
Dear Sirs:
The undersigned hereby agrees to purchase from Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), and the Corporation
agrees to sell to the undersigned
$__________
principal amount of the Corporation's [title of issue] (the "Securities"),
offered by the Corporation's Prospectus dated __________________, 19__ and
Prospectus Supplement dated ______________, 19__, receipt of copies of which is
hereby acknowledged, at a purchase price of ____% of the principal amount
thereof plus accrued interest or accrued amortization of original issue
discount, or both, and on the further terms and conditions set forth in this
contract. The undersigned does not contemplate selling the Securities prior to
making payment therefor.
The undersigned will purchase from the Corporation the Securities in the
principal amounts and on the delivery dates set forth below:
<TABLE>
<CAPTION>
Delivery Principal Plus Accrued
<S> <C> <C>
Date Amount Interest From:
- ----------- --------- --------------
________ $________ _____________
________ $________ _____________
________ $________ _____________
</TABLE>
Each such date on which the Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."
Payment for the Securities that the undersigned has agreed to purchase
on each Delivery Date shall be made
-1-
<PAGE>
to the Corporation or its order by certified or official bank check in
immediately available funds at the office of the Corporation located at the
above address, at 10:00 A.M. (New York time) on the Delivery Date or in such
other manner and such other funds as may be mutually agreed upon by the
Corporation and the Manager and set forth in the Underwriting Agreement, upon
delivery to the undersigned of the Securities to be purchased by the undersigned
on the Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Corporation not less than five full business days prior to the Delivery Date
or, if the undersigned fails to make a timely designation in the foregoing
manner, in the form of one fully registered instrument representing the
Securities in the above principal amount, registered in the name of the
undersigned.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of the Securities to be made by the undersigned shall not at
the time of delivery be prohibited under the laws of the jurisdiction to which
the undersigned is subject and (2) the Corporation shall have sold, and delivery
shall have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Corporation will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Corporation delivered to the Underwriters in
connection therewith.
Failure to take delivery of and make payment for the Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Corporation, it is requested that
the Corporation sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract, as of the date first above written, between the
Corporation and the undersigned when such counterpart is so mailed or delivered.
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<PAGE>
This contract shall be governed by and construed in
accordance with the laws of the State of New York.
Yours very truly,
_________________________
(Purchaser)
By_______________________
(Title)
_________________________
_________________________
(Address)
Accepted:
BANKERS TRUST NEW YORK CORPORATION
By________________________________
Title:
-3-
<PAGE>
FORM OF UNDERWRITING AGREEMENT
_________ ___, 19__
Bankers Trust New York Corporation,
280 Park Avenue,
New York, New York 10017.
Dear Sirs:
We [, as [sole] Underwriter[s]] [, as representative[s] of the several
Underwriters (the "Manager[s]"),] understand that Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), proposes to issue and
sell $___________ aggregate principal amount of its [title of securities] (the
"Securities") [to [us] [the Underwriters named in Schedule I hereto (the
"Underwriters")]. The terms of the Securities are set forth in the Registration
Statement and Basic Prospectus referred to in the provisions incorporated herein
by reference, as supplemented by a Prospectus Supplement dated ___________ ___,
19__. The Securities will be issued pursuant to an Indenture, dated as of
_________ __, 19__ (the "Indenture"), between the Corporation and
________________, as trustee (the "Trustee").
All the provisions contained in the document entitled Bankers Trust New
York Corporation Debt Securities Underwriting Agreement Standard Provisions
(December 1995), a copy of which you have previously received, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
[INSERT ADDITIONAL TERMS AND CONDITIONS AGREED TO BY THE UNDERWRITERS
AND THE CORPORATION.]
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Corporation hereby agrees to sell and [we hereby agree]
[each of the Underwriters hereby agrees, severally and not jointly,] to purchase
[the Securities] [the aggregate principal amount of Securities set forth
opposite the name of such Underwriter in Schedule I hereto] at ___% of their
principal amount plus accrued interest, if any, from ____________ ___, 19__ to
the date of payment and delivery.
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<PAGE>
-2-
We will pay for such Securities upon delivery thereof at the offices of
the Corporation, 130 Liberty Street, New York, New York, at 10:00 A.M. (New York
City time) on ___________ __, 19__ or at such other time, not later than
___________ __, 19__, as shall be designated by us, such time being referred to
herein as the "Closing Date".
[The certificates for the Securities shall be registered in such names
and in such denominations as we shall request and shall be available for
checking and packaging at the above office of the Corporation at least 24 hours
prior to the Closing Date.]
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and by returning the signed
copy to us.
Very truly yours,
[UNDERWRITER[S]]
[MANAGER[S],]
[As representatives of the
Several Underwriters named in
Schedule I hereto]
By:_______________________________
Title:
Accepted:
BANKERS TRUST NEW YORK CORPORATION
By: ___________________________________
Title:
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<PAGE>
-3-
Schedule I
<TABLE>
<CAPTION>
Name of Underwriter Aggregate Principal
- ---------------------- Amount of Securities
--------------------
<S> <C>
</TABLE>
<PAGE>
EXHIBIT 1.2
BANKERS TRUST NEW YORK CORPORATION
Series Preferred Stock and Common Stock
---------------------------------------
Underwriting Agreement
Standard Provisions
(December 1995)
______________________________
From time to time, BANKERS TRUST NEW YORK CORPORATION, a New York
corporation (the "Corporation"), may enter into one or more underwriting
agreements that provide for the sale of designated shares (the "Offered Shares")
of its series preferred stock, without par value (the "Series Preferred Stock")
or common stock, par value $1.00 per share (the "Common Stock"), to one or more
underwriters named therein (the "Underwriters"), severally where there are more
than one. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein
defined. If the Prospectus (as defined below) so provides, the shares of Series
Preferred Stock shall be deposited against delivery of receipts ("Depositary
Receipts") to be issued by the bank or trust company named in the Prospectus as
the depositary (such bank or trust company being referred to herein as the
"Depositary") under a Deposit Agreement, to be dated as of the date specified in
the Prospectus (the "Deposit Agreement"), among the Corporation, the Depositary
and the holders from time to time of the Depositary Receipts issued thereunder.
Such Depositary Receipts will evidence Depositary Shares (the "Depositary
Shares") and each Depositary Share will represent the number of shares of Series
Preferred Stock, or fractions thereof, specified in the Prospectus. If the
shares of Series Preferred Stock are not to be represented by Depositary
Receipts, then all references herein to Depositary Receipts, Depositary Shares
and to any agreements, instruments or persons related thereto shall be
disregarded and all opinions (or portions thereof) and other documents relating
to the foregoing shall be deemed to be deleted from this Agreement for purposes
of the related Underwriting Agreement. If an Underwriting Agreement provides for
the purchase of the Offered Shares by
<PAGE>
an Underwriter or Underwriters, but does not provide for a Manager or Managers,
the references to the Manager herein shall be deemed to refer to such
Underwriter or Underwriters.
I.
The Corporation has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33-_______),
including a prospectus relating to, among other securities, Common Stock,
Preferred Stock and Depositary Shares and has filed with, or mailed for filing
to, the Commission, a prospectus supplement specifically relating to the issue
of the Offered Shares and, if applicable, the Depositary Shares pursuant to Rule
424 under the Securities Act of 1933. The term "Registration Statement" means
such registration statement as amended to the date of the Underwriting
Agreement. The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the prospectus supplement specifically relating to the Offered
Shares, as filed with, or mailed for filing to, the Commission pursuant to Rule
424. The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Shares together with the Basic Prospectus.
As used herein, the terms "Registration Statement," "Basic Prospectus,"
"Prospectus" and "preliminary prospectus" shall include in each case the
material, if any, incorporated by reference therein. The term "Securities" means
the Offered Shares and, if the shares of Series Preferred Stock are to be
evidenced by Depositary Receipts, the Depositary Shares evidenced by such
Depositary Receipts.
The term "Underwriters' Securities" means the Securities to be purchased
by the Underwriters hereunder. The term "Contract Securities" means the
Securities, if any, to be purchased pursuant to the delayed delivery contracts
referred to below.
II.
If the Prospectus provides for sales of Contract Securities, the
Corporation hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to delayed delivery contracts substantially in the form of
Schedule I attached hereto ("Delayed Delivery Contracts") but with such changes
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<PAGE>
therein as the Corporation may authorize or approve. Delayed Delivery Contracts
are to be with institutional investors approved by the Corporation and of the
types set forth in the Prospectus. On the Closing Date (as hereinafter
defined), the Corporation will pay the Manager as compensation, for the accounts
of the Underwriters, the fee set forth in the Underwriting Agreement in respect
of the principal amount of the Contract Securities. The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts.
If the Corporation executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Securities to be purchased by each Underwriter shall be
reduced pro rata in proportion to the principal amount of Securities set forth
opposite each Underwriter's name in the Underwriting Agreement, except to the
extent that the Manager determines that such reduction shall be otherwise and so
advises the Corporation.
III.
The Corporation is advised by the Manager that the Underwriters propose
to make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Corporation in
immediately available funds or in such other manner and such other funds as may
be mutually agreed upon by the Corporation and the Manager and set forth in the
Underwriting Agreement, at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the "Closing Date."
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<PAGE>
V.
The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and there shall have been
no material adverse change (not in the ordinary course of business) in the
financial condition or results of operations of the Corporation and its
subsidiaries, taken as a whole, from that set forth in the Prospectus since
the effective dates as of which information is given therein; and the
Manager shall have received, on the Closing Date, a certificate, dated the
Closing Date and signed by an executive officer of the Corporation, to the
foregoing effect and also to the effect that the representations and
warranties of the Corporation in this Agreement are true and correct in all
material respects as of the Closing Date. The officer making such
certificate may rely upon the best of his knowledge as to proceedings
pending or threatened.
(b) The Manager shall have received on the Closing Date an opinion of
counsel for the Corporation, dated the Closing Date, to the effect set
forth in Exhibit A, and, unless otherwise agreed, an opinion of tax counsel
for the Corporation, dated the Closing Date, covering such matters as may
be mutually agreed upon by such tax counsel and the Manager and set forth
in the Underwriting Agreement.
(c) The Manager shall have received on the Closing Date an opinion of
counsel for the Depositary, if applicable, dated the Closing Date, to the
effect set forth in Exhibit B.
(d) The Manager shall have received on the Closing Date from White &
Case, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Corporation, the
validity of the Offered Shares and the Depositary Shares, the Registration
Statement, the Prospectus and other related matters as the Manager may
require, and the Corporation shall furnish to such counsel such documents
as they may reasonably request for the purposes of enabling them to pass
upon such matters.
-4-
<PAGE>
(e) On the Closing Date the Manager shall have received a letter,
dated the Closing Date and in form and substance satisfactory to the
Manager, from the independent accountants to the Corporation, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus, and confirming that
they are independent accountants within the meaning of the Securities Act
of 1933 and the Securities Exchange Act of 1934 and the respective
applicable published rules and regulations thereunder.
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Corporation covenants as follows:
(a) To furnish the Manager, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Corporation with the Commission subsequent to the
date of the Basic Prospectus, pursuant to the Securities Exchange Act of
1934, which are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Securities, to furnish the Manager with
a copy of each such proposed amendment or supplement.
(c) If, at any time during the period following the public offering
of the Securities during which, in the opinion of counsel for the
Underwriters, the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to ensure that the Prospectus does not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein,
-5-
<PAGE>
in the light of the circumstances under which they were made, not
misleading, or it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense, to
the Underwriters, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances under which they were made, be
misleading or so that the Prospectus will comply with law, as the case may
be.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification, the
determination of the eligibility of the Securities for investment under the
laws of such jurisdictions as the Manager may reasonably designate, the
printing of any memoranda concerning the aforesaid qualification or
eligibility and the rating of the Securities by securities rating services.
(e) To make generally available to the Corporation's security holders
as soon as practicable, but not later than sixteen months, after the date
of each Underwriting Agreement an earnings statement covering a period of
at least twelve months beginning after the later of (i) the effective date
of the Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective
prior to the date of such Underwriting Agreement, and (iii) the date of the
Corporation's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Underwriting Agreement, which shall
satisfy the provisions of Section 11(a) of the Securities Act of 1933.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of the Closing Date
or the removal by the Manager of trading restrictions on the Securities,
not to offer, sell, contract to sell or otherwise dispose of (other than
upon exercise of warrants therefor, or on conversion of convertible
securities, in each case outstanding at the date of the Underwriting
Agreement or in an offering made exclusively outside the United States) any
securities of the Corporation substantially similar to the
-6-
<PAGE>
Securities without the prior written consent of the Manager.
VII.
The Corporation covenants and agrees with each Underwriter that the
Corporation will pay or cause to be paid the following: (i) the fees for the
registration of the Securities under the Act; (ii) the fees, disbursements and
expenses of the Corporation's accountants in connection with the registration of
the Securities under the Act and all other expenses incurred by it in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements thereto and delivery
of copies thereof to the Underwriters; (iii) all expenses (including reasonable
fees and disbursements of counsel) payable pursuant to paragraph (d) of Article
VI of this Agreement; (iv) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities, fees paid in connection with any listing of the
Securities on the New York Stock Exchange or any other stock exchange or
quotation system and any fees of rating agencies; (v) all costs and expenses
incurred in the preparation and printing of the Prospectus, the Registration
Statement and any amendments or supplements thereto, this Agreement and all
other documents relating to the issuance, underwriting and initial offering of
the Securities; (vi) all costs, fees and expenses relating to the preparation
and filing via the Commission's Electronic Data Gathering and Retrieval System
of the Prospectus, the Registration Statement and any amendments or supplements
thereto, this Agreement and all other documents relating to the issuance,
underwriting and initial offering of the Securities; (vii) any fees of the
Depositary and for any taxes in connection with the deposit of the Offered
Shares with the Depositary and the issuance of the Depositary Receipts (it being
understood that the Underwriters agree to pay the New York State stock transfer
tax, if any, that may be imposed in connection therewith, and the Corporation
agrees to reimburse the Underwriters for associated carrying costs if such tax
payment is not rebated on the day of payment and for any portion of such tax
payment not rebated); and (viii) all other costs and expenses incident to the
performance by the Corporation of its obligations hereunder that are not
otherwise specifically provided for in this Article.
-7-
<PAGE>
VIII.
The Corporation represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the Securities Exchange
Act of 1934 and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with such Act and the rules and
regulations thereunder; (ii) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Securities Act of 1933 relating to the Securities, when such
part became effective, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (iii) each preliminary prospectus,
if any, filed pursuant to Rule 424 under the Securities Act of 1933 complied
when so filed in all material respects with such Act and the applicable rules
and regulations thereunder; (iv) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act of 1933 and the applicable rules and
regulations thereunder; and (v) the Registration Statement and the Prospectus do
not contain and, as amended or supplemented, if applicable, will not contain,
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that these
representations and warranties do not apply to statements in or omissions from
the Registration Statement, any preliminary prospectus or the Prospectus based
upon information furnished to the Corporation in writing by an Underwriter
expressly for use therein.
The Corporation agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus, or in any blue sky application or related document
prepared pursuant to paragraph (d) of Article VI hereof, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Corporation by an Underwriter
expressly for
-8-
<PAGE>
use therein; provided that the foregoing indemnity agreement with respect to any
--------
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if (i) the loss, claim,
damage or liability asserted by such purchaser was caused by a defect in the
Prospectus delivered to such purchaser after the period referred to in paragraph
(c) Article VI of this Agreement and such defect would not have existed before
the expiry of such period, or (ii) a copy of the Prospectus (as then amended or
supplemented if the Corporation shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Corporation, its directors and its officers who sign the
Registration Statement, any authorized representative of the Corporation and any
person controlling the Corporation to the same extent as the foregoing indemnity
from the Corporation to each Underwriter, but only with reference to information
furnished in writing by such Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus and any amendments or
supplements thereto.
In case any proceeding (including any governmental investigation) shall
be threatened or instituted involving any person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by
-9-
<PAGE>
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. In the case of parties
indemnified pursuant to the second preceding paragraph, such separate firm shall
be designated in writing by the Manager. In the case of parties indemnified
pursuant to the immediately preceding paragraph, such separate firm shall be
designated in writing by the Corporation. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Corporation on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Corporation on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Corporation on the one hand and the Underwriters on the other in connection with
the offering of the Securities shall be deemed to be in the same proportion as
the total net proceeds (before deducting expenses) from the offering of such
Securities received by the Corporation bear to the total underwriting discounts
and commissions received by the Underwriters in respect thereof. The relative
fault of the Corporation on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
-10-
<PAGE>
Corporation or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statements or
omissions.
The Corporation and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if all of the Underwriters are treated as a single entity
for such purpose) or by any other method of allocation that does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Article VII, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total public offering price of the Securities purchased by such Underwriter
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VII are several, in proportion to the respective number of Securities
purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VIII
and the representations and warranties of the Corporation in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Corporation, its directors or officers, any authorized
representative of the Corporation or any person controlling the Corporation and
(iii) acceptance of and payment for any of the Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Corporation, if prior to the
Closing Date (i) trading in
-11-
<PAGE>
securities generally on the New York Stock Exchange, or on any other stock
exchange or automated quotation system on which the Securities are or are to be
listed or to which the Securities have been or are to be admitted for quotation,
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Manager, impracticable to market the
Securities.
X.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Securities that it or they have agreed to purchase hereunder
and the aggregate number of Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions which the number of
Securities set forth opposite their names in the Underwriting Agreement bears to
the aggregate number of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate number of Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Securities to
be purchased on such date, and arrangements satisfactory to the Manager and the
Corporation for the purchase of such Securities are not made within 36 hours
after such default, this Agreement shall thereupon terminate without liability
on the part of any non-defaulting Underwriter or of the Corporation. In any
such case either the Manager or the Corporation shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
-12-
<PAGE>
XI.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Corporation to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Corporation shall be unable to perform its obligations under this
Agreement, the Corporation will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement, with respect to themselves, severally, for
all reasonable out-of-pocket expenses (including the fees and disbursements of
their counsel) reasonably incurred by such Underwriters in connection with the
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
-13-
<PAGE>
EXHIBIT A
---------
Opinion of Counsel to the Corporation
The opinion of counsel to the Corporation to be delivered pursuant to
Article V, paragraph (b) of the document entitled Bankers Trust New York
Corporation Series Preferred Stock and Common Stock Underwriting Agreement
Standard Provisions (December 1995) shall be to the effect that:
(i) the Corporation has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of New York,
is duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended, and has all requisite corporate power and
authority to own its properties and conduct its business as described in
the Prospectus;
(ii) Bankers Trust Company has been duly incorporated, is validly
existing as a banking corporation in good standing under the laws of the
State of New York, and has all requisite corporate power and authority to
own its properties and to conduct its business as described in the
Prospectus;
(iii) the Corporation's authorized equity capitalization is as set
forth in the Prospectus; the statements in the Prospectus Supplement under
the captions "Certain Terms of the Preferred Stock" and "Certain Terms of
the Depositary Shares," and in the Basic Prospectus under "Description of
Series Preferred Stock," "Depositary Shares" and "Description of the
Corporation's Capital Stock," insofar as such statements constitute a
summary of the documents or proceedings referred to therein, fairly present
the matters referred to therein;
(iv) the Offered Shares have been duly authorized and validly issued
and are fully paid and nonassessable subject to Section 630 of the New York
Business Corporation Law; and the holders of outstanding shares of capital
stock of the Corporation are not entitled to preemptive or other rights to
subscribe for the Offered Shares;
(v) if applicable, the Offered Shares are convertible into Common
Stock, par value $1.00 per
<PAGE>
share, of the Corporation in accordance with their terms; the shares of
such Common Stock initially issuable upon conversion of the Offered Shares
have been duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion, will be validly issued, fully paid
and nonassessable subject to Section 630 of the New York Business
Corporation Law; the holders of outstanding shares of capital stock of the
Corporation are not entitled to preemptive rights with respect to such
Common Stock;
(vi) the Offered Shares and, if applicable, the shares of Common
Stock issuable upon conversion of such Offered Shares, have been duly
authorized for listing, in each case subject to official notice of
issuance, on the New York Stock Exchange or such other stock exchange or
automated quotation system on or to which such Offered Shares and, if
applicable, Common Stock is or is to be listed or admitted;
(vii) the Deposit Agreement has been duly authorized, executed and
delivered by the Corporation and, assuming due authorization, execution and
delivery by the Depositary, constitutes a valid and legally binding
agreement enforceable in accordance with its terms; when the Depositary
Receipts are issued by the Depositary in accordance with the provisions of
the Deposit Agreement against the deposit of the shares of Series Preferred
Stock,the persons in whose names such Depositary Receipts are registered
will be entitled to the rights specified in such Depositary Receipts and
the Deposit Agreement; and the Deposit Agreement, the Depositary Shares and
the Depositary Receipts conform to the descriptions thereof contained in
the Prospectus;
(viii) the Underwriting Agreement has been duly authorized, executed
and delivered by the Corporation;
(ix) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Corporation and are valid and
binding agreements of the Corporation enforceable in accordance with their
respective terms;
(x) the issuance and sale of the Offered Shares and, if applicable,
the issuance and sale of the Common Stock or Series Preferred Stock
issuable upon conversion thereof, and the execution, delivery and
performance by the Corporation of the Underwriting Agreement and the
Deposit Agreement will not contravene any provisions of applicable Federal
or New York law or
-2-
<PAGE>
regulation, the certificate of incorporation or by-laws of the Corporation,
or to the knowledge of such counsel, any agreement or other instrument
binding upon the Corporation;
(xi) no consent, approval, authorization or other order of any
governmental or regulatory body is required for the issuance and the sale
of the Securities or, if applicable, the issuance of the Common Stock or
Series Preferred Stock issuable upon conversion thereof, and the execution,
delivery and performance of the Underwriting Agreement and the Deposit
Agreement, except for the order of the Securities and Exchange Commission
making the Registration Statement effective and except as may be required
under the State securities and blue sky laws;
(xii) the Registration Statement and Prospectus (except as to
financial statements and schedules and other financial data contained
therein, as to which such counsel need not express any opinion) comply as
to form in all material respects with the Securities Act of 1933, as
amended, and the rules and regulations thereunder; and each document filed
pursuant to the Securities Exchange Act of 1934, as amended, and
incorporated by reference in the Prospectus (except as to financial
statements and schedules and other financial data contained therein, as to
which such counsel need not express any opinion) complied when so filed as
to form in all material respects with such Act and the rules and
regulations thereunder;
(xiii) such counsel believes that (except for the financial
statements or schedules or other financial data and any statements
concerning the laws of tax contained therein, as to which such counsel need
not express any belief) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Securities
and Exchange Commission, when such part became effective, did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and such counsel believes that (except for the financial
statements or schedules or other financial data and any statements
concerning the laws of tax contained therein, as to which such counsel need
not express any belief) the Registration Statement and the Prospectus as of
their respective effective or issue dates did not, and the Prospectus on
the Closing Date does not, contain any untrue statement of a
-3-
<PAGE>
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; and
(xiv) the statements as to matters of law contained in the
Corporation's Annual Report on Form 10-K most recently filed with the
Securities and Exchange Commission under the caption "Supervision and
Regulation" were correct as of the date such report was filed with the
Securities and Exchange Commission and such statements fairly presented the
matters referred to therein.
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Corporation and public officials.
Referring to clauses (v), (vii) and (ix) above, such counsel may make the
expression of opinion as to the validity and enforceability of the agreements or
obligations referred to therein 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.
Further, such counsel may state that he does not express an opinion as to any
law other than the law of the State of New York and the Federal law of the
United States of America and that he does not express any opinion as to Federal
or New York State tax law. Counsel may take such other exceptions as may be
mutually agreed upon by such counsel and the Manager and set forth in the
Underwriting Agreement.
-4-
<PAGE>
EXHIBIT B
---------
Opinion of Counsel to the Depositary
The opinion of counsel to the Depositary, to be delivered pursuant to
Article IV, paragraph (c) of the document entitled Bankers Trust New York
Corporation Series Preferred Stock and Common Stock Underwriting Agreement
Standard Provisions (December 1995) shall be to the effect that:
(i) the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and is a valid and binding agreement of the
Depositary enforceable in accordance with its terms; and
(ii) the Depositary Receipts, when issued in accordance with the
provisions of the Deposit Agreement against the deposit of duly authorized,
validly issued, fully paid and nonassessable shares of Series Preferred
Stock, will be validly issued and will entitle the holders thereof to the
rights specified therein and in the Deposit Agreement.
<PAGE>
FORM OF DELAYED DELIVERY CONTRACT
___________, 19__
Bankers Trust New York Corporation,
280 Park Avenue,
New York, New York 10017.
Dear Sirs:
The undersigned hereby agrees to purchase from Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), and the Corporation
agrees to sell to the undersigned
__________
shares of the Corporation's [title of issue] (the "Securities"), offered by the
Corporation's Prospectus dated __________________, 19__ and Prospectus
Supplement dated ______________, 19__, receipt of copies of which is hereby
acknowledged, at a purchase price of $______ per share and on the further terms
and conditions set forth in this contract. The undersigned does not contemplate
selling the Securities prior to making payment therefor.
The undersigned will purchase from the Corporation the number of
Securities on the delivery dates set forth below:
<TABLE>
<CAPTION>
Delivery Number of
Date Securities
-------- ----------
<S> <C>
________ $________
________ $________
________ $________
</TABLE>
Each such date on which the Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."
Payment for the Securities that the undersigned has agreed to purchase
on each Delivery Date shall be made to the Corporation or its order by certified
or official bank check in immediately available funds at the office of
-1-
<PAGE>
the Corporation located at the above address, at 10:00 A.M. (New York time) on
the Delivery Date or in such other manner and such other funds as may be
mutually agreed upon by the Corporation and the Manager and set forth in the
Underwriting Agreement, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Corporation not less than five full
business days prior to the Delivery Date or, if the undersigned fails to make a
timely designation in the foregoing manner, in the form of one fully registered
instrument representing the Securities in the above principal amount, registered
in the name of the undersigned.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of the Securities to be made by the undersigned shall not at
the time of delivery be prohibited under the laws of the jurisdiction to which
the undersigned is subject and (2) the Corporation shall have sold, and delivery
shall have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Corporation will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Corporation delivered to the Underwriters in
connection therewith.
Failure to take delivery of and make payment for the Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Corporation, it is requested that
the Corporation sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Corporation and the undersigned when such counterpart is so mailed or delivered.
-2-
<PAGE>
This contract shall be governed by and construed in
accordance with the laws of the State of New York.
Yours very truly,
_________________________
(Purchaser)
By_______________________
(Title)
_________________________
_________________________
(Address)
Accepted:
BANKERS TRUST NEW YORK CORPORATION
By________________________________
Title:
-3-
<PAGE>
FORM OF UNDERWRITING AGREEMENT
Bankers Trust New York Corporation,
280 Park Avenue,
New York, New York 10017.
Dear Sirs:
We [, as [sole] Underwriter[s]] [, as representative[s] of the several
Underwriters (the "Manager[s]")], understand that Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), proposes to issue and
sell ___________________ shares of its [Common Stock] [_______% Series Preferred
Stock, Series ____] (the ["Offered Shares"] ["Securities" ) [to [us] [the
Underwriters named in Schedule I hereto (the "Underwriters")] [, to be deposited
against delivery of depositary receipts (the "Depositary Receipts"), evidencing
depositary shares (the "Depositary Shares", and with the Offered Shares, the
"Securities"), to be issued by ______________, as depositary (the "Depositary")
pursuant to a deposit agreement, dated as of ___________, among the Corporation,
the Depositary and the holders from time to time of the Depositary Receipts].
The terms of the Securities are set forth in the Registration Statement and
Basic Prospectus referred to in the provisions incorporated herein by reference,
as supplemented by a Prospectus Supplement dated ___________ ___, 19__.
All the provisions contained in the document entitled Bankers Trust New
York Corporation Series Preferred Stock and Common Stock Underwriting Agreement
Standard Provisions (December 1995), a copy of which you have previously
received, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein.
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Corporation hereby agrees to sell and [we hereby agree]
[each of the Underwriters hereby agrees, severally and not jointly] to purchase
[the Securities] [the number of Securities set forth opposite the name of such
Underwriter in Schedule I hereto] at a purchase price of $________ per share,
plus accrued dividends, if any, from the date of original issue to the date of
payment and delivery.
We will pay for such Securities upon delivery thereof at the offices of
the Corporation, 130 Liberty Street, New York, New York, at 10:00 A.M. (New York
City
<PAGE>
time) on ________, __ 19__ or at such other time, not later than, ________, __
19__, as shall be designated by us, such time being referred to herein as the
"Closing Date".
[The certificate representing the Offered Shares will be delivered by us
to, and deposited with, the Depositary against delivery of Depositary Receipts
representing Depositary Shares. Such Depositary Receipts shall be issued in
such denominations and registered in such names as we shall request and shall be
made available for checking and packaging at the above office of the Corporation
at least 24 hours prior to the Closing Date.]
[The certificates for the Securities shall be registered in such names
and in such denominations as we shall request and shall be available for
checking and packaging at the above office of the Corporation at least 24 hours
prior to the Closing Date.]
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and by returning the signed
copy to us.
Very truly yours,
[Underwriter[s]]
[Manager[s],]
[As representatives of the
Several Underwriters named in
Schedule I hereto]
By:
-------------------------------
Title:
Accepted:
Bankers Trust New York Corporation
By:
-----------------------------------
Title:
-2-
<PAGE>
Schedule I
Number of
Name of Underwriter Offered Shares
- ------------------- --------------
<PAGE>
EXHIBIT 4.1
-----------
CERTIFICATE FOR CERTIFICATE FOR
NOT MORE THAN NOT MORE THAN
100,000 100,000
SHARES SHARES
NB SHARES
COMMON COMMON
STOCK STOCK
BANKERS TRUST NEW YORK CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK
This Certifies that CUSIP 066365 10 7
SEE REVERSE FOR CERTAIN DEFINITIONS
is the owner of
SHARES OF THE COMMON STOCK
of Bankers Trust New York Corporation, transferable in person or by attorney
upon the books of the Corporation upon surrender of this certificate properly
assigned. This certificate is not valid unless countersigned by a Transfer Agent
and registered by a Registrar. Witness the seal of the Corporation and
the signatures of its duly authorized officers.
Dated
/s/ /s/
SECRETARY CHAIRMAN
COUNTERSIGNED AND REGISTERED:
HARRIS TRUST COMPANY OF NEW YORK
TRANSFER AGENT
AND REGISTRAR,
BY
AUTHORIZED SIGNATURE.
<PAGE>
BANKERS TRUST NEW YORK CORPORATION
The Corporation will furnish to any shareholder upon request and without
charge, a full statement of the designation, relative rights, preferences and
limitations of the shares of each class of shares authorized to be issued, and
the designation, relative rights, preferences and limitations of each series
of preferred shares, so far as the same have been fixed, and the authority of
the Board of Directors to designate and fix the relative rights, preferences
and limitations of other series.
THE FOLLOWING ABBREVIATIONS, WHEN USED IN THE INSCRIPTION ON THE FACE OF
THIS CERTIFICATE, SHALL BE CONSTRUED AS THOUGH THEY WERE WRITTEN OUT IN FULL
ACCORDING TO APPLICABLE LAWS OR REGULATIONS:
TEN COM --AS TENANTS IN COMMON
TEN ENT --AS TENANTS BY THE ENTIRETIES
JT TEN --AS JOINT TENANTS WITH RIGHT OF
SURVIVORSHIP AND NOT AS TENANTS
IN COMMON
UNIF GIFT MIN ACT-- ..........Custodian..........
(Cust) (Minor)
under Uniform Gifts to Minors
Act..........................
(State)
ADDITIONAL ABBREVIATIONS MAY ALSO BE USED THOUGH NOT IN THE ABOVE LIST.
For value received, ____________________ hereby sell, assign and transfer under
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFICATION NUMBER OF ASSIGNEE
[_______________________]_______________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________________________________Shares
of the Stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint_________________________________________________________
_______________________________________________________________________________
Attorney to transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated, ______________________ _______________________________
SIGNATURE GUARANTEED:
This certificate also evidences and entitles the holder hereof to certain rights
as set forth in a Rights Agreement between Bankers Trust New York Corporation
and First Chicago Trust Company of New York as successor to Morgan Shareholder
Services Trust Company, dated as of February 22, 1988 (the "Rights Agreement"),
the terms of which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of Bankers Trust New York
Corporation. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. Bankers Trust New York Corporation
will mail to the holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor. As described in the
Rights Agreement, Rights issued to any Person who becomes an Acquiring Person
(as defined in the Rights Agreement) shall become null and void.
<PAGE>
EXHIBIT 4.2
CERTIFICATE
NUMBER NUMBER OF
SHARES
BANKERS TRUST NEW YORK CORPORATION
Incorporated Under the Laws of the State of New York
____% PREFERRED STOCK, SERIES __
$_____ LIQUIDATION PREFERENCE
CUSIP NO.
-----------------
(See Reverse for Certain
Definitions)
This Certifies that ________________________ is the owner of
_______________________ (___) fully paid and nonassessable shares without par
value of ____% Preferred Stock, Series __ ($____ Liquidation Preference), of
Bankers Trust New York Corporation (the "Corporation") transferable only on the
books of the Corporation by the holder thereof in person or by duly authorized
Attorney upon surrender of this Certificate properly endorsed. This Certificate
is not valid unless countersigned by the transfer agent and registrar.
WITNESS the seal of the Corporation and the signatures of its duly authorized
officers.
HARRIS TRUST COMPANY OF NEW YORK BANKERS TRUST NEW YORK CORPORATION
as Registrar and Transfer Agent
By By
----------------------------- --------------------------------
Authorized Signature
Attest
------------------------
<PAGE>
The Corporation will furnish to any shareholder upon request and without
charge, a full statement of the designation, relative rights, preferences and
limitations of the shares of each class of shares authorized to be issued, and
the designation, relative rights, preferences and limitations of each series
of preferred shares, so far as the same have been fixed, and the authority of
the Board of Directors to designate and fix the relative rights, preferences
and limitations of other series.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN
ACT-____ Custodian_____
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act____________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _________________________ hereby sell, assign and
transfer unto _____________________ ________________________________ Shares of
the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ________________________ Attorney to
transfer the said stock on the books of the within-named Corporation with full
power of substitution in the premises.
Dated _________________, 19___ ___________________
In presence of ___________________________________
<PAGE>
EXHIBIT 4.3
- --------------------------------------------------------------------------------
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BANKERS TRUST NEW YORK CORPORATION
___________________
Under Section 805 of the Business Corporation Law
___________________
STATE OF NEW YORK
DEPARTMENT OF STATE
Filed _____________, 199__
___________________
Bankers Trust New York Corporation
280 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
<PAGE>
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
BANKERS TRUST NEW YORK CORPORATION
-------------------
Under Section 805 of the Business Corporation Law
-------------------
Pursuant to the provisions of Section 805 of the
Business Corporation Law, the undersigned hereby certify:
FIRST: The name of the corporation is Bankers Trust New York
Corporation and the name under which it was formed is BT New York Corporation.
SECOND: The Certificate of Incorporation of the corporation was filed
by the Department of State of New York on the 12th day of May, 1965.
THIRD: The Certificate of Incorporation, as amended and restated and
supplemented by certificates filed pursuant to law, is hereby amended by the
addition at the end of Article Fourth thereof of the following provisions
stating the number, designation, relative rights, preferences and limitations,
to the extent not heretofore set forth in Article Fourth, of a series of
authorized Series Preferred Stock, without par value, such series being hereby
designated as the corporation's "____% Preferred Stock, Series __ ($___
Liquidation Preference)", all as fixed by the Board of Directors of the
corporation before issuance of such series:
(__) Provisions relating to the ____% Preferred
Stock, Series __ ($___ Liquidation Preference):
1. Designation and Amount: The shares of such series shall be
----------------------
designated as "____% Preferred Stock, Series __ ($___ Liquidation Preference)"
(the "Series ___ Preferred Stock") and the number of shares constituting the
Series ___ Preferred Stock shall be [__________]. Such number of shares may be
increased or decreased by resolution of the
<PAGE>
Board of Directors; provided that no decrease shall reduce the number of shares
--------
of Series ___ Preferred Stock to a number less than the number of shares then
outstanding.
2. Dividends and Distributions: (A) The holders of shares of
---------------------------
Series ___ Preferred Stock, in preference to the holders of Common Stock, par
value $1.00 per share (the "Common Stock"), of the corporation, and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of [_________], [___________],
[___________] and [_____________] in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series ___ Preferred Stock, in an amount per share (rounded to the
nearest cent) at a rate [equal to ________%] [calculated as follows:]
(B) The corporation shall declare a dividend or distribution on the
Series ___ Preferred Stock as provided in paragraph (A) of this Section before
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event that no
--------
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend as determined pursuant to clause
2(A) above on the Series ___ Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series ___ Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series ___ Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series ___ Preferred Stock in an amount less than the
total amount of such dividends at
2
<PAGE>
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of holders of shares of
Series ___ Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
3. Voting Rights: (A) The holders of the Series ___ Preferred Stock
-------------
shall have the voting power and rights set forth and referred to in this
paragraph 3 and in paragraph [ ], and shall have no other voting power or
rights except as otherwise may from time to time be required by law.
[(B) Whenever dividends on the Series ___ Preferred Stock shall be
unpaid in whole or part for [____] consecutive dividend periods, then at the
annual meeting of shareholders next following omission of the [______________]
successive dividend and at all annual meetings thereafter, and at any meeting
called for the election of directors, until all dividends accumulated on the
Series ___ Preferred Stock have been declared and paid or a sum sufficient for
payment has been set aside, the holders of the Series ___ Preferred Stock,
either alone or together with the holders of one or more other cumulative series
of the Series Preferred Stock at the time outstanding which are granted such
voting right, voting as a class, shall be entitled, to the exclusion of the
holders of one or more other series or classes of stock, to vote for and elect
_____ members of the Board of Directors of the corporation, and the holders of
Common Stock together with the holders of any series or class or classes of
stock of the corporation having general voting rights and not then entitled to
elect two members of the Board of Directors pursuant to this paragraph 3 to the
exclusion of the holders of all series then so entitled, shall be entitled to
vote and elect the balance of the Board of Directors. In such case the Board of
Directors of the corporation shall, as of the date of the annual meeting of
shareholders aforesaid, be increased by ___ Directors. The rights of the Series
___ Preferred Stock to participate (either alone or together with the holders of
one or more other cumulative series at the time outstanding which are granted
such voting right) in the exclusive election of ____ members of the Board of
Directors of the corporation pursuant to this paragraph 3 shall continue in
effect until cumulative dividends have been paid in full or set apart for
payment on the Series ___ Preferred Stock. Upon termination at any time (by
reason of the payment of all accumulated and defaulted dividends on such stock
or provision for the
3
<PAGE>
payment thereof by declaration and setting apart thereof) of the exclusive
voting power pursuant to this paragraph 3 of the holders of Series ___ Preferred
Stock and the holders of all other cumulative series which shall have been
entitled to vote for and elect _______ members of the Board of Directors of the
corporation, the terms of office of all persons who may have been elected
directors of the corporation by vote of such holders shall terminate and the
_____ vacancies created pursuant to this paragraph 3 to accommodate the
exclusive right of election conferred hereunder shall thereupon be eliminated
and the Board of Directors shall be decreased by ____ directors. At elections
for such directors, each holder of Series ___ Preferred Stock shall be entitled
to one vote for each share held. The holders of Series ___ Preferred Stock
shall have no right to cumulate such shares in voting for the election of
directors.]
(C) So long as any shares of Series ___ Preferred Stock remain
outstanding, the corporation shall not, without the affirmative vote or consent
of the holders of at least a majority of the votes of the Series Preferred Stock
entitled to vote outstanding at the time, given in person or by proxy, either in
writing or by resolution adopted at a meeting at which the holders of Series ___
Preferred Stock (alone or together with the holders of one or more other series
of Series Preferred Stock at the time outstanding and entitled to vote) vote
separately as a class, alter the provisions of the Series Preferred Stock so as
to materially adversely affect its rights; provided, however, that in the event
-------- -------
any such materially adverse alteration affects the rights of only the Series ___
Preferred Stock, then the alteration may be effected with the vote or consent of
at least two-thirds of the votes of the Series ___ Preferred Stock; provided
--------
further, however, that an increase in the amount of the authorized Series
- ------- -------
Preferred Stock and/or the creation and issuance of other series of Series
Preferred Stock in accordance with the Certificate of Incorporation shall not
be, nor be deemed to be, materially adverse alterations. In connection with the
exercise of the voting rights contained in the preceding sentence, holders of
all series of Series Preferred Stock which are granted such voting rights (of
which the Series ___ Preferred Stock is the ______ series) shall vote as a class
(except as specifically provided otherwise) and each holder of Series ___
Preferred Stock shall have one vote for each share of stock held and each other
series shall have such number of votes, if any, for each share of stock held as
may be granted to them.
4
<PAGE>
The foregoing voting provisions will not apply if, in connection with
the matters specified, provision is made for the redemption or retirement of all
outstanding Series ___ Preferred Stock.
4. Liquidation: Subject to the provisions of section (a) of this
-----------
Article Fourth, upon any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, the holders of the Series ___
Preferred Stock shall have preference and priority over the Common Stock, and
any other junior stock for payment out of the assets of the corporation or
proceeds thereof, whether from capital or surplus of $_______________ per share
(the "liquidation value") together with the amount of any dividends accrued and
unpaid thereon, and after such payment the holders of Series ___ Preferred Stock
shall be entitled to no other payments.
5. Redemption: Subject to the provisions of section (a) of this
----------
Article Fourth, the Series ___ Preferred Stock may be redeemed at the option of
the Board of Directors, in whole or in part, at any time and from time to time
commencing after _______________, at the following [optional redemption prices
(but not less than $_________ share)] [percentages of the liquidation preference
(but not less than 100% per share)], during the 12 months' period ending
________ of the years indicated below in each case plus accrued and unpaid
dividends to the date of redemption:
[The Series ___ Stock is also subject to redemption and may be redeemed
on and after _____________, through the operation of the [________________] as
hereinafter provided in paragraph [ ] of this section (__).]
At the option of the corporation, shares of Series __ Preferred Stock
redeemed or otherwise acquired may be restored to the status of authorized but
unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such
redemption to the holders of the Series ___ Preferred Stock to be redeemed in
the following manner: a notice specifying the shares to be redeemed and the
time and place of redemption (and, if less than the total outstanding shares are
to be redeemed, specifying the certificate numbers and number of shares to be
redeemed) shall be mailed by first class mail, addressed to the holders of
record of the Series ___ Preferred Stock to be redeemed at their respective
addresses as the same shall
5
<PAGE>
appear upon the books of the corporation, not more than sixty (60) days and not
less than thirty (30) days previous to the date fixed for redemption. In the
event such notice is not given to any shareholder such failure to give notice
shall not affect the notice given to other shareholders. If less than the whole
amount of outstanding Series ___ Preferred Stock is to be redeemed, the shares
to be redeemed shall be selected by lot or pro rata in any manner determined by
resolution of the Board of Directors to be fair and proper. From and after the
date fixed in any such notice as the date of redemption (unless default shall be
made by the corporation in providing moneys at the time and place of redemption
for the payment of the redemption price) all dividends upon the Series ___ Stock
so called for redemption shall cease to accrue, and all rights of the holders of
said Series ___ Preferred Stock as stockholders in the corporation, except the
right to receive the redemption price (without interest) upon surrender of the
certificate representing the Series ___ Preferred Stock so called for
redemption, duly endorsed for transfer, if required, shall cease and terminate.
The corporation's obligation to provide moneys in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the redemption date, the
corporation shall deposit with a bank or trust company (which may be an
affiliate of the corporation) having an office in the Borough of Manhattan, City
of New York, having a capital and surplus of at least $5,000,000, funds
necessary for such redemption, in trust, with irrevocable instructions that such
funds be applied to the redemption of the shares of Series ___ Preferred Stock
so called for redemption. Any interest accrued on such funds shall be paid to
the corporation from time to time. Any funds so deposited and unclaimed at the
end of two (2) years from such redemption date shall be released or repaid to
the corporation, after which the holders of such shares of Series ___ Preferred
Stock so called for redemption shall look only to the corporation for payment of
the redemption price.
[6. Conversion]
7. For the purposes of this section (__):
(A) The term "outstanding", when used in reference to shares of stock,
shall mean issued shares, excluding shares held by the corporation and shares
called for redemption pursuant to paragraph 5 of this section (__), funds for
the redemption of which shall have been deposited in trust pursuant to paragraph
5 of this section (__);
6
<PAGE>
(B) The amount of dividends "accrued" on any share of
Series ___ Preferred Stock as at any Quarterly Dividend Payment Date shall be
deemed to be the amount of any unpaid dividends accumulated thereon to and
including the end of the day preceding such Quarterly Dividend Payment Date,
whether or not earned or declared; and the amount of dividends "accrued" on any
share of Series ___ Preferred Stock as at any date other than a Quarterly
Dividend Payment Date shall be calculated as the amount of any unpaid dividends
accumulated thereon to and including the end of the day preceding the last
preceding Quarterly Dividend Payment Date, whether or not earned or declared,
plus an amount equivalent to dividends on the liquidation value of such share at
the annual dividend rate fixed for such share for the period after the end of
the day preceding such last preceding Quarterly Dividend Payment Date to and
including the date as of which the calculation is made;
(C) Any class or classes of stock of the corporation shall be
deemed to rank
(i) prior to the Series ___ Preferred Stock either as to dividends or
upon liquidation, if the holders of such class shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of the Series ___ Preferred Stock;
(ii) on a parity with the Series ___ Preferred Stock either as to
dividends or upon liquidation, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof be
different from those of the Series ___ Preferred Stock, if the holders of
such class of stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in proportion to their respective dividend rates or
liquidation prices, without preference or priority one over the other with
respect to the holders of the Series ___ Preferred Stock; and
(iii) junior to the Series ___ Preferred Stock as to dividends or
upon liquidation, if such stock shall be Common Stock or if the holders of
the Series ___ Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
7
<PAGE>
winding up, as the case may be, in preference or priority to the holders of
shares of such class.
The manner in which the foregoing amendment of the Certificate of
Incorporation was authorized was by the affirmative vote of a majority of the
directors present at the time of the vote at a meeting of the Board of Directors
at which a quorum was present.
IN WITNESS WHEREOF, we, the undersigned, subscribe this Certificate and
affirm that the statements made herein are true under the penalties of perjury,
the _______ day of ________________, 199_.
______________________________
Chairman of the Board
______________________________
Secretary
8
<PAGE>
EXHIBIT 4.4
================================================================================
BANKERS TRUST NEW YORK CORPORATION,
__________________________, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
Deposit Agreement
_________________
Dated as of ____________, 1995
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
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PARTIES.................................................... 1
RECITALS................................................... 1
ARTICLE I
Definitions
Certificate................................................ 1
Certificate of Incorporation............................... 2
Corporation................................................ 2
Deposit Agreement.......................................... 2
Depositary................................................. 2
Depositary Shares.......................................... 2
Depositary's Agent......................................... 2
Depositary's Office........................................ 2
Paying Agent............................................... 2
Receipt.................................................... 3
record holder.............................................. 3
Redemption Date............................................ 3
Registrar.................................................. 3
Securities Act............................................. 3
Series ___ Preferred Stock................................. 3
Stock...................................................... 3
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts.......... 3
SECTION 2.02. Deposit of Stock; Execution and
Delivery of Receipts in Respect
Thereof.............................. 6
SECTION 2.03. Redemption of Stock.................... 8
SECTION 2.04. Registration of Transfer of Receipts... 12
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SECTION 2.05. Split-Ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock............................. 12
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange
of Receipts.......................... 15
SECTION 2.07. Lost Receipts, Etc..................... 16
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts................. 16
ARTICLE III
Certain Obligations of Holders
of Receipts and the Corporation
SECTION 3.01. Filing Proofs, Certificates and
Other Information.................... 16
SECTION 3.02. Payment of Taxes or Other
Governmental Charges................. 17
SECTION 3.03. Warranty as to Stock................... 18
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions..................... 18
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges............ 19
SECTION 4.03. Subscription Rights, Preferences
or Privileges......................... 20
SECTION 4.04. Notice of Dividends, Etc.; Fixing of
Record Date for Holders of
Receipts............................. 23
SECTION 4.05. Voting Rights.......................... 24
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, Etc............... 25
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SECTION 4.07. Inspection of Reports.................. 26
SECTION 4.08. Lists of Receipt Holders............... 27
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Corporation
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar............................ 27
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the
Corporation.......................... 29
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Corporation.................. 30
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary................. 32
SECTION 5.05. Corporate Notices and Reports.......... 33
SECTION 5.06. Indemnification by the Corporation..... 34
SECTION 5.07. Charges and Expenses................... 34
SECTION 5.08 Tax Compliance......................... 35
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment.............................. 36
SECTION 6.02. Termination............................ 37
ARTICLE VII
Miscellaneous
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SECTION 7.01. Counterparts........................... 38
SECTION 7.02. Exclusive Benefit of Parties........... 38
SECTION 7.03. Invalidity of Provisions............... 38
SECTION 7.04. Notices................................ 38
SECTION 7.05. Depositary's Agents.................... 40
SECTION 7.06. Holders of Receipts Are Parties........ 40
SECTION 7.07. Governing Law.......................... 41
SECTION 7.08. Inspection of Deposit Agreement........ 41
SECTION 7.09. Headings............................... 41
TESTIMONIUM................................................ 42
SIGNATURES................................................. 42
EXHIBIT A: Form of Depositary Receipt
</TABLE>
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<PAGE>
DEPOSIT AGREEMENT dated as of ____________, 1995, among BANKERS TRUST
NEW YORK CORPORATION, a New York corporation (the "Corporation"),
___________________, a ___________________ corporation, as depositary (the
"Depositary") and the holders from time to time of the Receipts described
herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [Insert designation of shares to
be deposited] of the Corporation with the Depositary for the purposes set forth
in this Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
-----------
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of amendment to the Certificate
of Incorporation filed with the
<PAGE>
Secretary of State of New York establishing the Stock as a series of series
preferred stock, without par value, of the Corporation.
"Certificate of Incorporation" shall mean the Restated Certificate of
Incorporation of the Corporation (including the Certificate), as amended or
supplemented from time to time.
"Corporation" shall mean Bankers Trust New York Corporation, a New York
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean _______________________, a ______________
corporation, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
one-________ (1/___) of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05 hereof.
"Depositary's Office" shall mean the principal office of the Depositary
in New York City, at which at any particular time its depositary receipt
business shall be administered.
"Paying Agent" shall have the meaning specified in the Certificate.
-2-
<PAGE>
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Redemption Date" shall have the meaning specified in Section 2.03
hereof.
"Registrar" shall mean any bank or trust company that shall be appointed
to register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933 and the rules and
regulations promulgated thereunder, in each case as amended or supplemented from
time to time.
"Series ___ Preferred Stock" shall mean shares of the Corporation's
[Insert designation of shares to be deposited].
"Stock" shall mean shares of the Corporation's Series ___ Preferred
Stock.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery,
-----------------------------------------------------------
Transfer, Surrender and Redemption of Receipts
----------------------------------------------
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall
-----------------------------
be engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to
-3-
<PAGE>
this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Corporation delivered in
compliance with Section 2.02 hereof, shall execute and deliver temporary
Receipts, which shall be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by such persons' execution of such Receipts. If temporary Receipts
are issued, the Corporation and the Depositary shall cause definitive Receipts
to be prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at an office described in the last
paragraph of Section 2.02 hereof, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Corporation's expense
and without any charge therefor. Until so exchanged, the temporary Receipts
-4-
<PAGE>
shall in all respects be entitled to the same benefits under this Agreement, and
with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary, provided that such signature may be
--------
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are counter-signed by manual signature of
a duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned manually by a duly authorized
officer of such Registrar. The Depositary shall record on its books each Receipt
so signed and delivered as hereinafter provided.
[Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of _________ Depositary Shares for any particular
Receipt.]
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
-5-
<PAGE>
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
-------- -------
registered on the books of the Depositary as provided in Section 2.04 hereof,
the Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
-------------------------------------------------------
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
- ---------------
the Corporation may from time to time deposit shares of the Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or certificates
for the Stock to be deposited, properly endorsed or accompanied, if required
-6-
<PAGE>
by the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary, together with all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order of the Corporation
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order a Receipt or Receipts for the
number of Depositary Shares representing such deposited Stock and registered in
the name of the person or persons stated in such order.
Upon receipt by the Depositary of a certificate or certificates for
shares of Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Corporation in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver a Receipt or Receipts for
the number of Depositary Shares representing the Stock so deposited registered
in the name or names of the person or persons specified in the written order
delivered to the Depositary referred to in the first paragraph of this Section.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate to the person or
-7-
<PAGE>
persons specified in such order. Delivery at other offices shall be at the risk
and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, or unless the Corporation provides written
notice to the Depositary as to a different number of shares of Stock, there
shall be deposited hereunder not more than ___________ shares of Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine. The
Depositary shall not lend any Stock deposited hereunder.
SECTION 2.03. Redemption of Stock. Whenever the Corporation shall
-------------------
elect to redeem shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed to in writing with the
Depositary) give the Depositary not less than 40 nor more than 70 days' notice
of the date of such proposed redemption of Stock, which notice shall be
accompanied by a certificate from the Corporation stating that such redemption
of Stock is in accordance with the provisions of the Certificate. Such notice,
if given more than 60 days prior to the redemption date, shall be in addition to
the notice required to be given for redemption pursuant to the Certificate. On
the
-8-
<PAGE>
date of such redemption, provided that the Corporation shall then have paid in
full to the Depositary the redemption price of the Stock to be redeemed,
including any accrued and unpaid dividends thereon, the Depositary shall redeem
the number of Depositary Shares representing such Stock. The Depositary shall
mail notice of such redemption and the proposed simultaneous redemption of the
number of Depositary Shares representing the Stock to be redeemed, first-class
postage prepaid, not less than 30 nor more than 60 days prior to the date fixed
for redemption of such Stock and Depositary Shares (the "Redemption Date"), to
the record holders of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as they appear on the records of the
Depositary; provided that neither any failure to mail any such notice to one or
--------
more such holders nor any defect in any notice to one or more such holders shall
affect the sufficiency of the proceedings for redemption as to any other
holders. Each such notice shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; (iii) the redemption price; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the
-9-
<PAGE>
Stock represented by the Depositary Shares to be redeemed will cease to
accumulate on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata as may be determined by the Depositary or
by any other method that may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the earlier of (i) the time of deposit of funds, pursuant to Paragraph 5 of the
Certificate, necessary for such redemption with the Paying Agent in trust for
the pro rata benefit of the holders of Stock represented by the Depositary
Shares called for redemption or (ii) the Redemption Date (unless the Corporation
shall have failed to redeem the shares of Stock to be redeemed by it as set
forth in the Corporation's notice provided for in the preceding paragraph), all
dividends in respect of each share of Stock so called for redemption shall cease
to accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the redemption
price) shall, to the extent of such Depositary Shares, cease and terminate and,
upon surrender in accordance with such notice of the Receipts evidencing any
such Depositary Shares (properly endorsed or assigned
-10-
<PAGE>
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to one-_______ (1/__) of the redemption price per share paid in respect of each
share of Stock plus all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Corporation in respect of
dividends that on the Redemption Date have accumulated on the shares of Stock to
be so redeemed and have not theretofore been paid.
If fewer than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption. Notwithstanding anything to the contrary herein, the
Corporation may purchase or acquire shares of Stock represented by the
Depositary Shares pursuant to a tender or exchange offer as set forth in
Paragraph ____ of the Certificate; provided, however, that if some, but less
-------- -------
than all, of the shares of Stock represented by the Depositary Shares are to be
purchased or otherwise acquired pursuant to such tender or exchange offer and
the number of shares of Stock represented by the Depositary Shares so tendered
exceeds the number of shares of Stock represented by the Depositary Shares so to
be purchased or otherwise acquired
-11-
<PAGE>
by the Corporation, the Depositary Shares representing Stock so tendered shall
be purchased or otherwise acquired by the Depositary, on behalf and upon the
instructions of the Corporation, on a pro rata basis (with adjustments to
eliminate fractions) according to the number of such Depositary Shares duly
tendered by each holder so tendering Depositary Shares for such purchase or
exchange.
SECTION 2.04. Registration of Transfer of Receipts. Subject to the
------------------------------------
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender thereof by
the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts, in any authorized
denomination or denominations requested, evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the person entitled
thereto.
SECTION 2.05. Split-Ups and Combinations of Receipts; Surrender of
----------------------------------------------------
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
- --------------------------------
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions
-12-
<PAGE>
of this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts, in any authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) withdraw the Stock and all money and other property, if
any, represented by such Receipt or Receipts by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Stock and
all money and other property, if any, represented by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to receive Depositary
Shares therefor. If a Receipt delivered by the holder to the Depositary in
connection with such withdrawal shall evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such
-13-
<PAGE>
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or (subject to Section 2.03 hereof) upon
such holder's order, a new Receipt evidencing such excess number of Depositary
Shares. Delivery of the Stock and money and other property being withdrawn may
be made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of such holder, such delivery may be made at such other place as may be
designated by such holder.
-14-
<PAGE>
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
------------------------------------------------
Surrender and Exchange of Receipts. As a condition precedent to the execution
- ----------------------------------
and delivery, registration or registration of transfer, split-up, combination,
redemption, surrender or exchange of any Receipt, the Depositary, any of the
Depositary's Agents or the Corporation may require payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the
Corporation shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant to Section 5.07
hereof, may require the production of evidence satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
such regulations, if any, as the Depositary or the Corporation may establish
consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of Receipts may be refused and the
registration of transfer, split-up, combination, redemption, surrender or
exchange of outstanding Receipts may be suspended (i) during any period when the
register of stockholders of the Corporation is closed or (ii) if any such action
is deemed necessary or advisable by the Depositary, any of the Depositary's
Agents or the Corporation at any time or from time to time because of any
requirement of law or of any government or
-15-
<PAGE>
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.07. Lost Receipts, Etc. In case any Receipt shall be
------------------
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
----------------------------------------------------
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
Certain Obligations of Holders
------------------------------
of Receipts and the Corporation
-------------------------------
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
-------------------------------------------------
holder of a Receipt may be required from time to time to file such proof of
residence or other
-16-
<PAGE>
matters or information, to execute such certificates and to make such
representations and warranties as the Depositary or the Corporation may
reasonably deem necessary or proper. The Depositary or the Corporation may
withhold the delivery, or delay the registration or registration of transfer,
split-up, combination, redemption, surrender or exchange of any Receipt or the
withdrawal of the Stock and all money and other property, if any, represented by
the Depositary Shares evidenced by any Receipt or the distribution of any
dividend or other distribution or the sale of any rights or of the proceeds
thereof until such proof or other information is filed, such certificates are
executed and such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders
----------------------------------------------
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07 hereof. Any registration or
registration of transfer, split-up, combination, redemption, surrender or
exchange of any Receipt or any withdrawal of the Stock and all money and other
property, if any, represented by the Depositary Shares evidenced by any Receipt
may be refused until any such payment due is made, and the distribution of any
dividend, interest payment or other distribution may be delayed or withheld or
any part of or all the Stock or money or other property represented by the
Depositary Shares evidenced by
-17-
<PAGE>
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and any such dividend, interest payment or other distribution or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, provided that the holder of such Receipt shall remain liable for any
--------
deficiency.
SECTION 3.03. Warranty as to Stock. The Corporation hereby represents
--------------------
and warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
------------------
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02 hereof, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 hereof such dividend
or distribution in such amounts as are, as nearly as practicable, in proportion
to the respective numbers of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that in case the Corporation or the Depositary
-------- -------
shall be required to
-18-
<PAGE>
withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly; and provided further, however, that the Depositary shall distribute
-------- ------- -------
or make available for distribution, as the case may be, only such amount as can
be distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
-----------------------------------------------------
Privileges. Whenever the Depositary shall receive any distribution other than
- ----------
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02 hereof, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 hereof such
securities or property received by it in such amounts as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the
-19-
<PAGE>
opinion of the Depositary such distribution cannot be made proportionately among
such record holders, or if for any other reason (including any requirement that
the Corporation or the Depositary withhold an amount on account of taxes) the
Depositary, after consultation with the Corporation, deems such distribution not
to be feasible, the Depositary may, with the approval of the Corporation, adopt
such method as it deems equitable and practicable for the purpose of effecting
such distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02 hereof, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 hereof in the case of a
distribution received in cash. The Corporation shall not make any distribution
of such securities unless the Corporation shall have provided an opinion of
counsel stating that such securities have been registered under the Securities
Act or are not required to be so registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Corporation shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Corporation any rights,
preferences or privileges to subscribe for or to purchase
-20-
<PAGE>
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner as
the Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Corporation; provided, however, that (i) if at the time of issue or offer
-------- -------
of any such rights, preferences or privileges the Depositary determines that it
is not lawful or (after consultation with the Corporation) not feasible to make
such rights, preferences or privileges available to holders of Receipts by the
issue of warrants or otherwise, or (ii) if and to the extent so instructed by
holders of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Corporation, in any case where the Depositary has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Sections 3.01 and 3.02 hereof,
be distributed by
-21-
<PAGE>
the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.01 hereof in the case of a distribution received in cash. The
Corporation shall not make any distribution of any such rights, preferences or
privileges unless the Corporation shall have provided an opinion of counsel
stating that such rights, preferences or privileges have been registered under
the Securities Act or are not required to be registered.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Corporation shall promptly file a registration
statement pursuant to the Securities Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take all
steps available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective, or unless the offering and sale of such
-22-
<PAGE>
securities to such holders are exempt from registration under the provisions of
the Securities Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Corporation shall use its best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Etc.; Fixing of Record Date for
----------------------------------------------------
Holders of Receipts. Whenever any cash dividend or other cash distribution
- -------------------
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depository and the Corporation shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Corporation with respect
to the Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or
-23-
<PAGE>
the net proceeds of the sale thereof, or to give instructions for the exercise
of voting rights at any such meeting, or who shall be entitled to notice of such
meeting or for any other appropriate reason.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
-------------
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders of the Receipts may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the
Corporation) and a brief statement as to the manner in which such instructions
may be given. Upon the written request of the holders of Receipts on the
relevant record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of whole shares of Stock represented by the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Corporation shall take all action that the
Depositary may
-24-
<PAGE>
deem necessary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the holder
of a Receipt, the Depositary shall abstain from voting (but, at its discretion,
not from appearing at any meeting with respect to such Stock unless directed to
the contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
------------------------------------------
Reclassifications, Recapitalizations, Etc. Upon any change in par or stated
- -----------------------------------------
value or liquidation preference, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Corporation or to which it
is a party, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Corporation, and (in either case) in such manner
as the Depositary may deem equitable, (i) make such adjustments as are certified
by the Corporation in (x) the fraction of an interest represented by one
Depositary Share in one share of Stock and (y) the ratio of the redemption price
per Depositary Share to the redemption price of a share of Stock, in each case
as may be necessary fully to reflect the effects of such change in par or stated
value or liquidation preference, split-up, combination or other reclassification
of Stock, or of such
-25-
<PAGE>
recapitalization, reorganization, merger, amalgamation or consolidation and (ii)
treat any securities that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Stock as new deposited securities so
received in exchange for or upon conversion or in respect of such Stock. In any
such case the Depositary may in its discretion, with the approval of the
Corporation, execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after
the effective date of any such change in par or stated value or liquidation
preference, split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger, amalgamation or consolidation to
surrender such Receipts to the Depositary with instructions to convert, exchange
or surrender the Stock represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other securities and property and
cash into which the Stock represented by such Receipts might have been converted
or for which such Stock might have been exchanged or surrendered immediately
prior to the effective date of such transaction.
-26-
<PAGE>
SECTION 4.07. Inspection of Reports. The Depositary shall transmit to
---------------------
the record holders of Receipts, at the addresses of such record holders as set
forth on the books of the Depositary, and shall make available for inspection by
holders of Receipts at the Depositary's Office, and at such other places as it
may from time to time deem advisable, any reports and communications received
from the Corporation which are received by the Depositary as the holder of
Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
------------------------
time to time by the Corporation, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings of Depositary Shares of
all persons in whose names Receipts are registered on the books of the
Depositary.
ARTICLE V
The Depositary, the Depositary's Agents,
----------------------------------------
the Registrar and the Corporation
---------------------------------
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
- -------------------------
Depositary shall establish, and thereafter it shall maintain, at the
Depositary's Office, facilities for the execution and delivery, registration or
registration of transfer, split-up, combination, redemption, surrender or
exchange of Receipts, and at the offices of the Depositary's Agents, if
-27-
<PAGE>
any, facilities for the delivery, registration or registration of transfer,
split-up, combination, redemption, surrender or exchange of Receipts, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration or registration of transfer, split-up, combination, redemption,
surrender or exchange of Receipts, which books at all reasonable times shall be
open for inspection by the record holders of Receipts; provided that any such
--------
holder requesting to exercise such right shall certify to the Depositary that
such inspection shall be for a proper purpose reasonably related to such
person's interest as an owner of Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Corporation, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary will appoint a Registrar (acceptable to the
Corporation) for registration of such receipts or Depositary Shares in
accordance with any requirements of such Exchange. Such Registrar (which may be
-28-
<PAGE>
the Depositary if so permitted by the requirements of such Exchange) may be
removed and a substitute registrar appointed by the Depositary upon the request
or with the approval of the Corporation. If the Receipts, such Depositary
Shares or such Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Corporation, arrange such facilities for
the delivery, registration or registration of transfer, split-up, combination,
redemption, surrender or exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
--------------------------------------------------------
the Depositary's Agents, the Registrar or the Corporation. Neither the
- ---------------------------------------------------------
Depositary nor any Depositary's Agent nor any Registrar nor the Corporation
shall incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or any present or future regulation
thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, the Depositary's Agent or the
Registrar, by reason of any provision, present or future, of the Certificate of
Incorporation or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Corporation shall be prevented or forbidden from, or subjected
to any penalty on account of, doing or
-29-
<PAGE>
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Corporation incur any liability to any holder of a Receipt
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit Agreement provide
shall or may be done or performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement
except, in case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the negligence or willful misconduct of the
party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
the Registrar and the Corporation. Neither the Depositary nor any Depositary's
- ---------------------------------
Agent nor any Registrar nor the Corporation assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Corporation shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity
-30-
<PAGE>
satisfactory to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Corporation shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, any holder of
a Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar
and the Corporation may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith.
The Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will be liable to the Corporation for any liability that may arise out of acts
performed or omitted by the Depositary or any Depositary's Agent due to its or
their gross negligence or wilful
-31-
<PAGE>
misconduct. The Depositary, the Depositary's Agents, and any Registrar may own
and deal in any class of securities of the Corporation and its affiliates and in
Receipts. The Depositary may also act as transfer agent or registrar of any of
the securities of the Corporation and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
---------------------------------------------------------
Successor Depositary. The Depositary may at any time resign as Depositary
- --------------------
hereunder by notice of its election so to do delivered to the Corporation. Such
resignation shall be effective upon the appointment of a successor Depositary
and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Corporation by notice
of such removal delivered to the Depositary. Such removal shall be effective
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Corporation shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after
-32-
<PAGE>
delivery of such notice, the resigning or removed Depositary may petition any
court of competent jurisdiction for the appointment of a successor Depositary.
Every successor Depositary shall execute and deliver to its predecessor and to
the Corporation an instrument in writing accepting its appointment hereunder,
and thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Corporation, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor, and
shall deliver to such successor a list of the record holders of all outstanding
Receipts. Any successor Depositary shall promptly mail notice of its
appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may
-33-
<PAGE>
authenticate the Receipts in the name of the predecessor Depositary or in the
name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Corporation agrees
-----------------------------
that it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08 hereof, all notices and
reports (including without limitation financial statements) required by law, by
the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the Certificate of
Incorporation to be furnished by the Corporation to holders of Stock. Such
transmission will be at the Corporation's expense.
SECTION 5.06. Indemnification by the Corporation. The Corporation shall
----------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself and reasonable counsel fees) which may
arise out of acts performed or omitted in connection with this Deposit Agreement
and the Receipts (a) by the Depositary, any Registrar or any of their respective
agents (including any Depositary's Agent), except for any liability or expense
arising out of negligence or bad faith on the respective parts of any such
person or persons, or (b) by the Corporation or any of its agents. The
obligations of the
-34-
<PAGE>
Corporation set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Corporation shall pay all
--------------------
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements hereunder. The Corporation shall pay
all charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, redemption of the Stock
at the option of the Corporation and all withdrawals of shares of the Stock by
owners of Depositary Shares. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Corporation as to the
amount and nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Corporation once every three
months or at
-35-
<PAGE>
such other intervals as the Corporation and the Depositary may agree.
SECTION 5.08. Tax Compliance. (a) The Depositary, on its own behalf
--------------
and on behalf of the Corporation will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Depositary Receipts or the Depositary Shares. Such
compliance shall include, without limitation, the preparation and timely filing
of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
(b) The Depositary shall comply with any direction received from the
Corporation with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 5.03 hereof.
(c) The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Corporation or to its authorized representatives.
-36-
<PAGE>
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment. The form of the Receipts and any provision of
---------
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Corporation and the Depositary in any respect which they
may deem necessary or desirable; provided, however, that no such amendment which
-------- -------
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of
Receipts evidencing at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective, or any transferee of such holder, shall be deemed,
by continuing to hold such Receipt or by reason of the acquisition thereof, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
-----------
Corporation or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 hereof or (ii) there shall
have been made a final distribution in respect of the Stock in connection with
any liquidation, dissolution or winding up of the Corporation and such
distribution shall have been distributed to the holders of Receipts evidencing
the
-37-
<PAGE>
Depositary Shares pursuant to Section 4.01 or 4.02 hereof, as applicable.
Upon the termination of this Deposit Agreement, the Corporation shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07 hereof.
ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in
------------
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is
----------------------------
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
------------------------
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions
-38-
<PAGE>
contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
-------
Corporation hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail or
telegram, telex or telecopier confirmed by letter, addressed to the Corporation
at 130 Liberty Street, New York, New York 10006, to the attention of the Office
of the Secretary, or at any other address of which the Corporation shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telex or telecopier
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
_______________________, or at any other address of which the Depositary shall
have notified the Corporation and the record holders of the Receipts in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram, telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on
-39-
<PAGE>
the books of the Depositary, or if such holder shall have filed with the
Depositary a written request that notices intended for such holder be mailed to
some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram, telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram, telex
or telecopier message) is deposited, postage prepaid, in a post office letter
box. The Depositary or the Corporation may, however, act upon any telegram,
telex or telecopier message received by it from the other or from any holder of
a Receipt, notwithstanding that such telegram, telex or telecopier message shall
not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
-------------------
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary shall notify the Corporation of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
-------------------------------
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by and upon
-40-
<PAGE>
acceptance by them of delivery of Receipts issued in accordance with the terms
of this Deposit Agreement.
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
-------------
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
-------------------------------
Agreement shall be filed with the Depositary and the Depositary's Agents, if
any, and shall be open to inspection during business hours at the Depositary's
Office and the respective offices of the Depositary's Agents, if any, by any
holder of a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this
--------
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any
-41-
<PAGE>
bearing upon the meaning or interpretation of any provision contained herein or
in the Receipts.
IN WITNESS WHEREOF, the Corporation and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
BANKERS TRUST NEW YORK
CORPORATION
Attested by by
__________________________ ________________________
Name:
Title:
[SEAL]
________________________,
as Depositary,
Attested by by
__________________________ ________________________
Name:
Title:
[SEAL]
-42-
<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN ____________ DEPOSITARY SHARES
TDR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING
[INSERT DESIGNATION OF SHARES TO BE DEPOSITED] OF
BANKERS TRUST NEW YORK CORPORATION
CUSIP ______
INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK
SEE REVERSE FOR CERTAIN DEFINITIONS
_____________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of
DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing one-_____ (1/___) of
one share of [insert designation of shares to be deposited] (the "Stock"), of
Bankers Trust New York Corporation, a New York corporation (the "Corporation"),
on deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of ________ __, 199__ (the "Deposit
Agreement"), among the Corporation, the Depositary and the holders from time to
time of the Depositary Receipts described therein. By accepting this Depositary
Receipt the holder hereof becomes a party to and agrees to be bound by all the
terms and conditions of the Deposit Agreement. This Depositary Receipt shall
not be valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if executed in facsimile by
the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized officer thereof.
Dated: Countersigned:
- ------------------ ------------------ ------------------
Depositary Registrar Transfer Agent
By By By
Authorized Officer Authorized Officer Authorized Officer
-43-
<PAGE>
[FORM OF REVERSE OF RECEIPT]
BANKERS TRUST NEW YORK CORPORATION
BANKERS TRUST NEW YORK CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH
THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.
------------------------------
The following abbreviations when used in the inscription on the face of this
receipt shall be construed as though they were written out in full according to
applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______Custodian_______
(Cust) (Minor)
TEN ENT - as tenants by Under Uniform Gifts to Minors Act
the entireties
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common ---------------------
(State)
Additional abbreviations may also be used though not in the above list
For value received, hereby sells, assigns and
-------------------------------
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
- --------------------------------------------------------------------------------
Depositary Shares
- --------------------------------------------------------
represented by the within Receipt, and do hereby irrevocably constitute and
appoint
- --------------------------------------------------------------------------------
Attorney
- ---------------------------------------------------------------------
to transfer the said Depositary Shares on the books of the within-named
Depositary with full power of substitution
in the premises
Dated___________________________________
------------------------------------------------------
NOTICE The signature to the assignment must correspond
with the name as written upon the face of this Receipt
in every particular, without alteration or enlargement
or any change whatever.
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<PAGE>
EXHIBIT 4.10
================================================================================
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
-ii-
<PAGE>
Page
----
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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<PAGE>
Page
----
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
-iv-
<PAGE>
Page
----
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
-v-
<PAGE>
Page
----
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
-vi-
<PAGE>
Page
----
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
-vii-
<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
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(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 8
1/4% Subordinated Notes due July 2, 1996, 8% Subordinated Debentures due March
1997, Zero Coupon Subordinated Yen Notes due 1997-2004, Subordinated Money
Market Capital Notes, Series A, B and C due June 1999, 9.20% Subordinated
Capital Notes due July 15, 1999, 9.50% Subordinated Debentures due June 14,
2000, 9.40% Subordinated Debentures due March 1, 2001, 9.00% Subordinated
Debentures due August 1, 2001, 7.50% Subordinated Debentures due January 15,
2002, 8 1/8% Subordinated Notes due 2002, 8-1/8% Subordinated Debentures due May
15, 2002, 7 1/8% Subordinated Debentures due July 31, 2002, Subordinated
Floating Rate Notes due 2002, 7.25% Subordinated Debentures due January 15,
2003, Subordinated Constant Maturity Treasury Floating Rate Debentures due 2003,
Subordinated LIBOR CMT Floating Rate Debentures due 2003, Subordinated Floating
Rate Notes due 2004, 8 1/4% Subordinated Notes due 2005, Subordinated Floating
Rate Notes due 2005, Subordinated Yen Loan due 2005, 6% Subordinated Notes due
October 2008, 7 1/8% Subordinated Notes due 2010, 7 1/2% Subordinated Notes due
2010, 7 1/2% Subordinated Notes due November 15, 2015, 6 1/8% Convertible
Capital Securities due June 2033 and 6.00% Convertible Capital Securities due
August 2033.
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"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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(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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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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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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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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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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<PAGE>
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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<PAGE>
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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<PAGE>
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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<PAGE>
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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<PAGE>
(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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<PAGE>
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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<PAGE>
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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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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EXHIBIT 5.1
December 22, 1995
Bankers Trust New York Corporation,
280 Park Avenue,
New York, New York 10017
Re: Registration Statement on Form S-3
----------------------------------
Dear Sirs:
I am a Managing Director and Counsel of Bankers Trust Company ("Bankers") and as
such, I have acted as counsel for Bankers Trust New York Corporation (the
"Corporation") in the preparation of a Registration Statement on Form S-3 (the
"Registration Statement"), filed on the date hereof with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Act"), to register shares of the Corporation's Series Preferred
Stock (the "Series Preferred Stock") with an initial offering price of up to
$1,000,000,000 and depositary shares (each, a "Depositary Share" and,
collectively, the "Depositary Shares"), each representing an interest in a share
of Series Preferred Stock. The Depositary Shares are issuable under a deposit
agreement (the "Deposit Agreement") between the Corporation and a depositary to
be designated by the Corporation (the "Depositary"). I am familiar with the
actions taken in connection with the registration of the Series Preferred Stock
and the Depositary Shares and have reviewed such corporate records, certificates
and other documents, and such questions of law, as I have deemed necessary in
connection with this opinion.
Based upon the foregoing, I am of the opinion that:
(i) The Corporation has been duly incorporated and is validly
existing under the laws of the State of New York.
<PAGE>
Bankers Trust New York Corporation -2-
(ii) The shares of Series Preferred Stock have been duly and validly
authorized and, when the Registration Statement becomes effective under the
Act and when issued, executed and paid for as contemplated in the
Registration Statement (including the Prospectus and the Prospectus
Supplement relating to the shares of Series Preferred Stock), the shares of
Series Preferred Stock will be validly issued, fully paid and nonassessable
subject to Section 630 of the New York Business Corporation Law.
(iii) The Depositary Shares have been duly authorized by the
Corporation and, when the Registration Statement becomes effective under
the Act, when the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary, and when the Depositary Shares have been duly
executed, issued and paid for in accordance with the terms and provisions
of the Deposit Agreement and as contemplated in the Registration Statement,
the Depositary Shares will be validly issued, fully paid and nonassessable
subject to Section 630 of the New York Business Corporation Law.
I hereby consent to the reference to me and to the use of my name under the
caption "Validity of Offered Securities" in the Prospectus forming part of the
Registration Statement. I do not admit in giving this consent that I come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/Gordon S. Calder, Jr.
Gordon S. Calder, Jr.
Managing Director and
Counsel
<PAGE>
-3-
December 22, 1995
Bankers Trust New York Corporation
280 Park Avenue
New York, New York 10017
Re: Registration Statement on Form S-3
----------------------------------
Dear Sirs:
I am a Managing Director and Counsel of Bankers Trust Company ("Bankers") and as
such, I have acted as counsel for Bankers Trust New York Corporation (the
"Corporation") in the preparation of a Registration Statement on Form S-3 (the
"Registration Statement"), filed on the date hereof with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Act"), to register shares of the Corporation's Common Stock
(the "Common Stock") with an initial offering price of up to $1,000,000,000. I
am familiar with the actions taken in connection with the registration of the
Common Stock and have reviewed such corporate records, certificates and other
documents, and such questions of law, as I have deemed necessary in connection
with this option.
Based upon the foregoing, I am of the opinion that:
(i) The Corporation has been duly incorporated and is validly existing
under the laws of the State of New York.
<PAGE>
Bankers Trust New York Corporation -4-
(ii) The shares of Common Stock have been duly and validly authorized,
and, when the Registration Statement becomes effective under the Act and
when issued, executed and paid for as contemplated in the Registration
Statement (including the Prospectus and the Prospectus Supplement relating
to the shares of Common Stock), the shares of Series Preferred Stock will
be validly issued, fully paid and nonassessable subject to Section 630 of
the New York Business Corporation Law.
I hereby consent to the reference to me and to the use of my name under the
caption "Validity of Offered Securities" in the Prospectus forming part of the
Registration Statement. I do not admit in giving this consent that I come within
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission thereunder.
Very truly yours,
/s/Gordon S. Calder, Jr.
Gordon S. Calder, Jr.
Managing Director and
Counsel
<PAGE>
-5-
December 22, 1995
Bankers Trust New York Corporation
280 Park Avenue
New York New York 10017
Re: Registration Statement on Form S-3
----------------------------------
Dear Sirs:
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 preparation of a Registration Statement on Form S-3 as filed
with the Securities and Exchange Commission on the date hereof (the
"Registration Statement"). Pursuant to the Registration Statement,
$1,000,000,000 aggregate principal amount (if indebtedness is issued at original
issue discount, such higher principal amount as may be sold for an initial
public offering price of up to $1,000,000,000) of the Corporation's senior and
subordinated debentures (collectively the "Debt Securities") issuable 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, and an Indenture dated as of April 1, 1991, 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, or under an indenture (the "Second Subordinated
Indenture," and together with the First Subordinated Indenture, the
"Subordinated Indentures") between the Corporation and a trustee to be
designated prior the issuance of Debt Securities thereunder (the Senior
Indenture and the Subordinated Indentures collectively, the "Indentures"), are
being registered for offering and sale as more fully described in the
Registration Statement. I am familiar with the actions taken and to be taken in
connection with the proposed issue and sale by the Corporation of the Debt
Securities, including the preparation of and filing with the Securities and
Exchange Commission of the Registration Statement with respect to the Debt
Securities, the adoption by the Board of Directors of the Corporation of
appropriate resolutions authorizing the issuance of the Debt
<PAGE>
-6-
Securities and the execution and delivery of the Indentures and the underwriting
agreement substantially in the form filed as exhibits to the Registration
Statement, and I have reviewed such other corporate records, certificates and
other documents and such question of law, as I have deemed necessary or
appropriate in connection with this opinion.
Based upon the foregoing, I am of the opinion that the Corporation has been duly
incorporated and is validly existing under the laws of the State of New York.
Also based upon the foregoing, I am further of the opinion that the Senior
Indenture and First Subordinated Indenture have been duly authorized, executed
and delivered and constitute valid and legally binding agreements of the
Corporation (except as (i) the validity and enforceability thereof may be
limited by any bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general application affecting creditors' rights
and (ii) the availability of equitable remedies may be limited by equitable
principles of general applicability), and that the Second Subordinated Indenture
has been duly authorized and when (i) in the case of the Debt Securities issued
pursuant to the Second Subordinated Indenture, when the Second Subordinated
Indenture has been duly executed and delivered, terms of the securities and of
their issuance and sale have been duly authorized by corporate action and such
Debt Securities have been duly executed, authenticated and delivered in
accordance with the relevant Indentures and sold as described in the
Registration Statement, including the Prospectus and Prospectus Supplement
relating to such Debt Securities, such Debt Securities will be legal, valid and
binding obligations of the Corporation (except as (i) the validity and
enforceability thereof may be limited by any bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
affecting creditors' rights and (ii) the availability of equitable remedies may
be limited by equitable principles of general applicability) and entitled to the
benefits of the relevant Indenture.
I hereby consent to the reference to me and to the use of my name under the
caption "Validity of Offered Securities" in the Prospectus forming part of the
Registration Statement. I do not admit in giving this consent that I come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/Gordon S. Calder, Jr.
Gordon S. Calder, Jr.
Managing Director and Counsel
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference of our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Bankers Trust New
York Corporation for the registration of U.S. $1,000,000,000 Debt Securities,
Common Stock and Series Preferred Stock and to the incorporation by reference
therein of our report dated January 26, 1995, except for Note 11, as to which
the date is March 1, 1995, 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, 1994, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
New York, New York
December 22, 1995
<PAGE>
EXHIBIT 24.1
BANKERS TRUST NEW YORK CORPORATION
----------------------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and
officers of Bankers Trust New York Corporation, (the "Corporation") a New York
corporation, hereby appoints each of Charles S. Sanford, Jr., Frank N. Newman,
George J. Vojta, Timothy T. Yates, Garret G. Thunen, Duncan P. Hennes and James
T. Byrne, Jr. his true and lawful attorney and agent, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorney and agent may deem necessary or advisable to
enable the Corporation to comply with the Securities Act of 1933, as amended,
the Securities Exchange Act of 1934, as amended and the Trust Indenture Act of
1939, as amended (collectively the "Acts") and any rules and regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Acts the of securities of the
Corporation with respect to the public offering of such securities, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to one or more Registration Statements to be
filed with the Securities and Exchange Commission with respect thereto, to any
and all amendments, including pre- and post-effective amendments, to the said
Registration Statements and to any and all instruments and documents filed as a
part of or in connection with the said Registration Statements or amendments
thereto; HEREBY RATIFYING AND CONFIRMING all that the said attorneys and agents,
or any of them, has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed these presents.
November 21, 1995 Bankers Trust New York Corporation
By /s/ Charles S. Sanford, Jr.
---------------------------------
Charles S. Sanford, Jr.
Chairman of the Board
/s/ Charles S. Sanford, Jr.
- --------------------------------------
Charles S. Sanford, Jr.
Chairman of the Board of Directors
(Principal Executive Officer)
/s/ Timothy T. Yates
- --------------------------------------
Timothy T. Yates
Executive Vice President,
Chief Financial
Officer and Controller
(Principal Financial Officer)
/s/ Geoffrey M. Fletcher
- --------------------------------------
Geoffrey M. Fletcher
Senior Vice President and
Principal Accounting Officer
<PAGE>
- 2 -
November 21, 1995
/s/ George B. Beitzel
- ---------------------------------- Director
George B. Beitzel
/s/ Phillip A. Griffiths
- ---------------------------------- Director
Phillip A. Griffiths
/s/ William R. Howell
- ---------------------------------- Director
William R. Howell
/s/ Jon M. Huntsman
- ---------------------------------- Director
Jon M. Huntsman
/s/ Vernon E. Jordan, Jr.
- ---------------------------------- Director
Vernon E. Jordan, Jr.
/s/ Hamish Maxwell
- ---------------------------------- Director
Hamish Maxwell
- ---------------------------------- Director
Donald F. McCullough
/s/ Frank N. Newman
- ---------------------------------- Director
Frank N. Newman
/s/ N.J. Nicholas Jr.
- ---------------------------------- Director
N.J. Nicholas Jr.
/s/ Russell E. Palmer
- ---------------------------------- Director
Russell E. Palmer
<PAGE>
- 3 -
November 21, 1995
/s/ Patricia C. Stewart
- ---------------------------------- Director
Patricia C. Stewart
/s/ George J. Vojta
- ---------------------------------- Director
George J. Vojta
