<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 4, 1997
REGISTRATION NOS. 333- AND 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
BANKERS TRUST NEW YORK CORPORATION BT CAPITAL TRUST B
(EXACT NAME OF REGISTRANT AS SPECIFIED (EXACT NAME OF REGISTRANT AS SPECIFIED
IN ITS CHARTER) IN ITS TRUST AGREEMENT)
NEW YORK DELAWARE
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION)
6712 6719
(PRIMARY STANDARD INDUSTRIAL (PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER) CLASSIFICATION CODE NUMBER)
13-6180473 APPLIED FOR
(I.R.S. EMPLOYER IDENTIFICATION (I.R.S. EMPLOYER IDENTIFICATION
NUMBER) NUMBER)
C/O BANKERS TRUST NEW YORK CORPORATION
130 LIBERTY STREET
NEW YORK, NEW YORK 10006
130 LIBERTY STREET (212) 250-2500
NEW YORK, NEW YORK 10006 (ADDRESS, INCLUDING ZIP CODE, AND
(212) 250-2500 TELEPHONE NUMBER, INCLUDING AREA CODE,
(ADDRESS, INCLUDING ZIP CODE, AND OF REGISTRANT'S PRINCIPAL EXECUTIVE
TELEPHONE NUMBER, INCLUDING AREA CODE, OFFICES)
OF REGISTRANT'S PRINCIPAL EXECUTIVE
OFFICES)
---------------
GORDON S. CALDER, JR., ESQ.
MELVIN A. YELLIN, ESQ.
BANKERS TRUST NEW YORK CORPORATION
130 LIBERTY STREET
NEW YORK, NEW YORK 10006
(212) 250-2500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH A COPY TO:
ROBERT E. BUCKHOLZ, JR., ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As promptly as practicable after the effective date of this Registration
Statement.
---------------
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1) PER UNIT(2) PRICE(2) FEE
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
7.90% Junior
Subordinated Deferrable
Interest Debentures,
Series B1 of Bankers
Trust New York
Corporation (2)....... $250,000,000 $1,000.00 $250,000,000 N/A
- -------------------------------------------------------------------------------------
7.90% Capital
Securities, Series B1
of BT Capital Trust B
(3)................... 250,000 $1,000.00 $250,000,000 $75,758
- -------------------------------------------------------------------------------------
Guarantee of Bankers
Trust New York
Corporation
with respect to 7.90%
Capital Securities,
Series B1 (3)(4)....... N/A N/A N/A N/A
- -------------------------------------------------------------------------------------
Total................... $250,000,000(5) 100% $250,000,000(5) $75,758
</TABLE>
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- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee.
(2) The 7.90% Junior Subordinated Deferrable Interest Debentures, Series B1
will be purchased by BT Capital Trust B with the proceeds of the sale of the
7.90% Capital Securities, Series B1. No separate consideration will be
received from purchasers of 7.90% Capital Securities, Series B1 for the
7.90% Junior Subordinated Deferrable Interest Debentures, Series B1.
(3) This Registration Statement is deemed to cover the 7.90% Junior
Subordinated Deferrable Interest Debentures, Series B1 of Bankers Trust New
York Corporation, the rights of holders of 7.90% Junior Subordinated
Deferrable Interest Debentures, Series B1 under the related Indenture, the
rights of holders of 7.90% Capital Securities, Series B1 of BT Capital Trust
B under the Trust Agreement of BT Capital Trust B, and the rights of holders
of the 7.90% Capital Securities, Series B1 under the Guarantee of Bankers
Trust New York Corporation, which taken together with the Expense Agreement
entered into by Bankers Trust New York Corporation, fully and
unconditionally guarantee the obligations of BT Capital Trust B under the
7.90% Capital Securities, Series B1.
(4) No separate consideration will be received for the Bankers Trust New York
Corporation Guarantee.
(5) Such amounts represent the aggregate liquidation amount of 7.90% Capital
Securities, Series B1 to be issued and exchanged hereunder and the principal
amount of 7.90% Junior Subordinated Deferrable Interest Debentures, Series
B1 that may be distributed upon liquidation of BT Capital Trust B.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE SHEET PURSUANT TO ITEM 501(B) OF REGULATION S-K SHOWING THE
LOCATION IN THE PROSPECTUS OF THE RESPONSES TO THE ITEMS OF PART I OF FORM S-4
<TABLE>
<CAPTION>
FORM S-4 ITEM LOCATION IN PROSPECTUS
------------- ----------------------
<C> <S> <C>
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus... Outside Front Cover Page;
Facing Page
2. Inside Front and Outside Back Cover Pages
of Prospectus............................ Available Information; Outside
Back Cover Page
3. Risk Factors, Ratio of Earnings to Fixed
Charges, and Other Information........... Risk Factors; Bankers Trust New
York Corporation
4. Terms of the Transaction................. Outside Front Cover Page;
Summary; Bankers Trust New York
Corporation; BT Capital Trust
B; Use of Proceeds;
Capitalization; Accounting
Treatment; The Exchange Offer;
Description of New Securities;
Relationship Among the New
Capital Securities, the New
Junior Subordinated Debentures,
the New Guarantee and the New
Expense Agreement; Description
of Old Securities; Certain
Federal Income Tax
Consequences; Certain ERISA
Considerations; Plan of
Distribution
5. Pro Forma Financial Information.......... Incorporation of Certain
Documents by Reference;
Capitalization
6. Material Contracts With the Company Being
Acquired................................. Outside Front Cover; The
Exchange Offer
7. Additional Information Required for
Reoffering by Persons and Parties Deemed
to be Underwriters....................... *
8. Interests of Named Experts and Counsel... Validity of New Securities;
Experts
9. Disclosure of Commission Position on
Indemnification For Securities Act
Liabilities.............................. *
10. Information With Respect to S-3
Registrants.............................. Available Information;
Incorporation of Certain
Documents by Reference;
Summary; Bankers Trust New York
Corporation
11. Incorporation of Certain Information by
Reference................................ Incorporation of Certain
Documents by Reference
12. Information With Respect to S-2 or S-3
Registrants.............................. *
13. Incorporation of Certain Information by
Reference................................ *
14. Information With Respect to Registrants
Other Than S-3 or S-2 Registrants........ Available Information; BT
Capital Trust B
15. Information With Respect to S-3
Companies................................ *
16. Information With Respect to S-2 or S-3
Companies................................ *
17. Information With Respect to Companies
Other Than S-2 or S-3 Companies.......... *
18. Information if Proxies, Consents or
Authorizations Are to be Solicited....... *
19. Information if Proxies, Consents or
Authorizations Are Not to be Solicited,
or in an Exchange Offer.................. Incorporation of Certain
Documents by Reference
</TABLE>
- --------
* Not Applicable.
<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 STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MARCH 4, 1997
PROSPECTUS
$250,000,000
BT CAPITAL TRUST B
OFFER TO EXCHANGE ITS 7.90% CAPITAL SECURITIES, SERIES B1 WHICH HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, FOR ANY
AND ALL OF THE OUTSTANDING 7.90% CAPITAL SECURITIES, SERIES A1 OF BT CAPITAL
TRUST A
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT DESCRIBED HEREIN, BY
[LOGO] BANKERS TRUST NEW YORK CORPORATION
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON , 1997, UNLESS EXTENDED.
----------
Bankers Trust New York Corporation, a New York corporation (the
"Corporation"), hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus (as the same may be amended or supplemented from time
to time, this "Prospectus") and in the accompanying Letter of Transmittal
(which together constitute the "Exchange Offer"), to exchange up to
$250,000,000 aggregate Liquidation Amount (as defined herein) of the 7.90%
Capital Securities, Series B1 (Liquidation Amount $1,000 per Capital Security)
(the "New Capital Securities") of BT Capital Trust B, a statutory business
trust created under the laws of the State of Delaware (the "Issuer Trust"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a Registration Statement (as defined herein) of
which this Prospectus constitutes a part, for a like liquidation amount of the
outstanding 7.90% Capital Securities, Series A1 (Liquidation Amount $1,000 per
Capital Security) (the "Old Capital Securities") of BT Capital Trust A, a
statutory business trust created under the laws of the State of Delaware (the
"Old Issuer Trust"), of which $250,000,000 aggregate Liquidation Amount is
outstanding. The New Capital Securities will have the benefit of the New
Guarantee (as defined herein) of the Corporation, which will be identical in
all material respects (except as described herein) to the guarantee agreement
relating to the Old Capital Securities (the "Old Guarantee"). The Issuer Trust
will hold 7.90% Junior Subordinated Deferrable Interest Debentures, Series B1,
of the Corporation (the "New Junior Subordinated Debentures"), in an aggregate
principal amount equal to the aggregate Liquidation Amount of the New Trust
Securities (as defined herein) issued pursuant to the Exchange Offer, which
will be identical in all material respects (except as described herein) to the
Corporation's 7.90% Junior Subordinated Deferrable Interest Debentures, Series
A1 (the "Old Junior Subordinated Debentures"), of which $257,732,000 aggregate
principal amount is outstanding. The New Guarantee and the New Junior
Subordinated Debentures also have been registered under the Securities Act. The
Old Capital Securities, the Old Guarantee and the Old Junior Subordinated
Debentures are collectively referred to herein as the "Old Securities" and the
New Capital Securities, the New Guarantee and the New Junior Subordinated
Debentures are collectively referred to herein as the "New Securities."
The terms of the New Securities are identical in all material respects to the
respective terms of the Old Securities, except that (i) the New Securities have
been registered under the Securities Act and therefore will not be subject to
certain of the restrictions on transfer applicable to the Old Securities, (ii)
the New Capital Securities will not provide for any increase in the rate at
which Distributions (as defined herein) accumulate thereon and (iii) the New
Junior Subordinated Debentures will not provide for any increase in the
interest rate thereon. See "Description of New Securities" and "Description of
Old Securities." The New Capital Securities are being offered for exchange in
order to satisfy certain obligations of the Corporation and the Old Issuer
Trust under the Exchange and Registration Rights Agreement, dated as of January
16, 1997 (the "Registration Rights Agreement"), among the Corporation, the Old
Issuer Trust and the Initial Purchaser (as defined herein) of the Old Capital
Securities.
(Continued on next page)
------------
SEE "RISK FACTORS" BEGINNING ON PAGE 15 HEREOF FOR CERTAIN INFORMATION
RELEVANT TO AN INVESTMENT IN THE CAPITAL SECURITIES.
------------
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT
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 , 1997.
<PAGE>
(cover page continued)
The New Capital Securities represent preferred undivided beneficial
interests in the assets of the Issuer Trust. The Corporation will initially be
the holder of all the common undivided beneficial interests in the assets of
the Issuer Trust ("New Common Securities" and, collectively with the New
Capital Securities, the "New Trust Securities"). The Issuer Trust exists for
the sole purpose of issuing the New Trust Securities and holding the New
Junior Subordinated Debentures, and engaging in only those activities
necessary or incidental thereto. The New Junior Subordinated Debentures will
mature on January 15, 2027 (the "Stated Maturity"). The New Capital Securities
will have a preference under certain circumstances over the New Common
Securities with respect to cash distributions and amounts payable on
liquidation, redemption or otherwise. See "Description of New Securities--
Description of New Capital Securities--Subordination of New Common
Securities."
Except as described herein, the New Capital Securities will be represented
by global New Capital Securities to be deposited with a custodian for and
registered in the name of a nominee for The Depository Trust Company ("DTC").
Beneficial interests in the global New Capital Securities will be shown on,
and transfers thereof will be effected only through, records maintained by DTC
and its direct and indirect participants. Beneficial interests in such New
Capital Securities will trade in DTC's Same-Day Funds Settlement System and
secondary market trading activity in such interests will therefore settle in
immediately available funds. The New Capital Securities will be issued, and
may be held or transferred, only in blocks having a Liquidation Amount of not
less than $100,000 (100 New Capital Securities). Accordingly, any holder must
own at least 100 New Capital Securities. See "Description of New Securities--
Description of New Capital Securities--Book-Entry, Delivery and Form."
Holders of the New Capital Securities will be entitled to receive
preferential cumulative cash distributions ("Distributions") accumulating from
the most recent distribution date on the Old Capital Securities surrendered in
exchange for such New Capital Securities or, if no distributions have been
paid on such Old Capital Securities, from January 16, 1997. Such Distributions
will be payable semi-annually in arrears on January 15 and July 15 of each
year, commencing on the first such date following the date of original
issuance of the New Capital Securities, at the annual rate of 7.90% of the
Liquidation Amount of $1,000 per New Capital Security. The Corporation has the
right to defer payment of interest on the New Junior Subordinated Debentures
at any time or from time to time for a period not exceeding 10 consecutive
semi-annual periods with respect to each deferral period (each, an "Extension
Period"), provided that no Extension Period may extend beyond the Stated
Maturity of the New Junior Subordinated Debentures as in effect on the date on
which the Corporation elects to effect such deferral. Upon the termination of
any such Extension Period and the payment of all amounts then due, the
Corporation may elect to begin a new Extension Period subject to the
requirements set forth herein. If interest payments on the New Junior
Subordinated Debentures are so deferred, Distributions on the New Capital
Securities will also be deferred and the Corporation will not be permitted,
subject to certain exceptions described herein, to declare or pay any cash
distributions with respect to the Corporation's capital stock or with respect
to debt securities of the Corporation that rank pari passu in all respects
with or junior to the New Junior Subordinated Debentures. During an Extension
Period, interest on the New Junior Subordinated Debentures will continue to
accrue (and the amount of Distributions to which holders of the New Capital
Securities are entitled will accumulate) at the rate of 7.90% per annum,
compounded semi-annually, and holders of New Capital Securities will be
required to accrue interest income for United States federal income tax
purposes. See "Description of New Securities--Description of New Junior
Subordinated Debentures--Option to Extend Interest Payment Period" and
"Certain Federal Income Tax Consequences--Interest Income and Original Issue
Discount."
The Corporation has, through the New Guarantee, the New Trust Agreement, the
New Junior Subordinated Debentures, the New Junior Subordinated Indenture and
the New Expense Agreement (each as defined herein), taken together, fully,
irrevocably and unconditionally guaranteed all of the Issuer Trust's
obligations under the New Capital Securities. See "Relationship Among the New
Capital Securities, the New Junior Subordinated Debentures, the New Guarantee
and the New Expense Agreement--Full and Unconditional Guarantee." The New
Guarantee guarantees the payment of Distributions and payments on liquidation
or redemption of the New Capital Securities, but only in each case to the
extent of funds available therefor held by the Issuer Trust, as described
herein. See "Description of New Securities--Description of New Guarantee." If
the Corporation does not make payments on the New Junior Subordinated
Debentures held by the Issuer Trust, the Issuer Trust may have insufficient
funds to pay Distributions on
2
<PAGE>
(cover page continued)
the New Capital Securities. The New Guarantee does not cover payment of
Distributions when the Issuer Trust does not have sufficient funds to pay such
Distributions. In such event, a holder of New Capital Securities may institute
a legal proceeding directly against the Corporation to enforce payment of such
Distributions to such holder. See "Description of New Securities--Description
of New Junior Subordinated Debentures--Enforcement of Certain Rights by
Holders of New Capital Securities." The obligations of the Corporation under
the New Guarantee and the New Junior Subordinated Debentures are subordinate
and junior in right of payment to all Senior Indebtedness (as defined herein)
of the Corporation.
The New Capital Securities are subject to mandatory redemption, in whole or
in part, upon repayment of the New Junior Subordinated Debentures at Stated
Maturity or their earlier redemption. The New Junior Subordinated Debentures
are redeemable prior to maturity at the option of the Corporation (i) on or
after January 15, 2007, in whole at any time or in part from time to time, or
(ii) in certain circumstances as described under "Description of New
Securities--Description of New Junior Subordinated Debentures--Conditional
Right to Shorten Maturity or Redeem Upon a Tax Event, Investment Company Event
or Capital Treatment Event," in whole (but not in part) at any time within 90
days following the occurrence and continuation of a Tax Event, Investment
Company Event or Capital Treatment Event (each as defined herein) (or, if the
approval of the Federal Reserve (as defined herein) is then required for such
redemption, on such later date as promptly as reasonably practicable after
such approval is obtained), in each case at the applicable Redemption Price
(as defined herein), which includes the accrued and unpaid interest on the New
Junior Subordinated Debentures so redeemed to the date fixed for redemption.
The Corporation has committed to the Board of Governors of the Federal Reserve
System (the "Federal Reserve") that the Corporation will not exercise its
rights to redeem the New Junior Subordinated Debentures or cause the
redemption of the New Capital Securities prior to the Stated Maturity without
having received the prior approval of the Federal Reserve to do so, if then
required under applicable Federal Reserve capital guidelines or policies. See
"Description of New Securities--Description of New Junior Subordinated
Debentures--Redemption."
The holder of all the New Common Securities has the right at any time to
dissolve the Issuer Trust and, after satisfaction of liabilities to creditors
of the Issuer Trust as provided by applicable law, to cause the New Junior
Subordinated Debentures to be distributed to the holders of the New Capital
Securities and New Common Securities in liquidation of the Issuer Trust. The
Corporation has committed to the Federal Reserve that, so long as the
Corporation (or any affiliate) is the holder of all the New Common Securities,
the Corporation (or such affiliate) will not so dissolve the Issuer Trust
without having received the prior approval of the Federal Reserve to do so, if
then required under applicable Federal Reserve capital guidelines or policies.
See "Description of New Securities--Description of New Capital Securities--
Liquidation Distribution Upon Termination."
If the Issuer Trust is dissolved, then after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, the holders of
the New Capital Securities will be entitled to receive a Liquidation Amount of
$1,000 per New Capital Security plus accumulated and unpaid Distributions
thereon to the date of payment, subject to certain exceptions, which may be in
the form of a distribution of a Like Amount (as defined herein) of New Junior
Subordinated Debentures. See "Description of New Securities--Description of
New Capital Securities--Liquidation Distribution Upon Termination."
The Corporation is making the Exchange Offer of the New Capital Securities
in reliance on the position of the staff of the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") as set
forth in certain interpretive letters addressed to third parties in other
transactions. However, neither the Corporation nor the Issuer Trust has sought
its own interpretive letter, and there can be no assurance that the staff of
the Division of Corporation Finance of the Commission would make a similar
determination with respect to the Exchange Offer as it has in such
interpretive letters to third parties. Based on these interpretations by the
staff of the Division of Corporation Finance, and subject to the two
immediately following sentences, the Corporation believes that New Capital
Securities issued pursuant to this Exchange Offer in exchange for Old Capital
Securities may be offered for resale, resold and otherwise transferred by a
holder thereof (other than a holder who is a broker-dealer) without further
compliance with the registration and prospectus delivery requirements of the
Securities Act, provided that such New Capital Securities are acquired in the
ordinary course of such holder's business and that such holder is not
participating, and has no arrangement or understanding with any person to
participate, in a distribution (within the meaning of the
3
<PAGE>
(cover page continued)
Securities Act) of such New Capital Securities. However, any holder of Old
Capital Securities who is an "affiliate" of the Corporation, the Issuer Trust
or the Old Issuer Trust within the meaning of Rule 405 under the
Securities Act (an "Affiliate") or who intends to participate in the Exchange
Offer for the purpose of distributing New Capital Securities, or any broker-
dealer who purchased Old Capital Securities from the Old Issuer Trust to
resell pursuant to Rule 144A under the Securities Act ("Rule 144A") or any
other available exemption under the Securities Act, (i) will not be able to
rely on the interpretations of the staff of the Division of Corporation
Finance of the Commission set forth in the above-mentioned interpretive
letters, (ii) will not be entitled to tender such Old Capital Securities in
the Exchange Offer and (iii) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or
other transfer of such Old Capital Securities unless such sale is made
pursuant to an exemption from such requirements. In addition, as described
below, if any broker-dealer (a "Participating Broker-Dealer") holds Old
Capital Securities acquired for its own account as a result of market-making
or other trading activities and exchanges such Old Capital Securities for New
Capital Securities, then such Participating Broker-Dealer must deliver a
prospectus meeting the requirements of the Securities Act in connection with
any resales of such New Capital Securities.
Each holder of Old Capital Securities who wishes to exchange Old Capital
Securities for New Capital Securities in the Exchange Offer will be required
to represent that (i) it is not an Affiliate, (ii) any New Capital Securities
to be received by it are being acquired in the ordinary course of its
business, (iii) it has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of
such New Capital Securities, and (iv) if such holder is not a broker-dealer,
such holder is not engaged in, and does not intend to engage in, a
distribution (within the meaning of the Securities Act) of such New Capital
Securities. The Letter of Transmittal contains the foregoing representations.
In addition, the Corporation may require such holder, as a condition to such
holder's eligibility to participate in the Exchange Offer, to furnish to the
Corporation (or an agent thereof) in writing information as to the number of
"beneficial owners" (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) on behalf of whom such
holder holds the Old Capital Securities to be exchanged in the Exchange Offer.
Each Participating Broker-Dealer that receives New Capital Securities for its
own account pursuant to the Exchange Offer will be deemed to have acknowledged
by execution of the Letter of Transmittal or delivery of an Agent's Message
(as defined herein) that it acquired the Old Capital Securities for its own
account as the result of market-making activities or other trading activities
and must agree that it will deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such New Capital
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a Participating Broker-Dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
Based on the position taken by the staff of the Division of Corporation
Finance of the Commission in the interpretive letters referred to above, the
Corporation believes that Participating Broker-Dealers, may fulfill their
prospectus delivery requirements with respect to the New Capital Securities
received upon exchange of such Old Capital Securities (other than Old Capital
Securities that represent an unsold allotment from the original sale of the
Old Capital Securities) with a prospectus meeting the requirements of the
Securities Act, which may be the prospectus prepared for an exchange offer so
long as it contains a description of the plan of distribution with respect to
the resale of such New Capital Securities. Accordingly, this Prospectus may be
used by a Participating Broker-Dealer during the period referred to below in
connection with resales of New Capital Securities received in exchange for Old
Capital Securities where such Old Capital Securities were acquired by such
Participating Broker-Dealer for its own account as a result of market-making
or other trading activities. Subject to certain provisions set forth in the
Registration Rights Agreement, the Corporation and the Issuer Trust have
agreed that this Prospectus may be used by a Participating Broker-Dealer in
connection with resales of such New Capital Securities for a period ending 90
days after the Expiration Date (as defined herein) or, if earlier, when all
such Capital Securities have been disposed of by such Participating Broker-
Dealer. See "Plan of Distribution." Any person, including any Participating
Broker-Dealer, who is an Affiliate may not rely on such interpretive letters
and must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any resale transaction. See "The
Exchange Offer--Resales of New Capital Securities."
In that regard, each Participating Broker-Dealer who surrenders Old Capital
Securities pursuant to the Exchange Offer will be deemed to have agreed, by
execution of the Letter of Transmittal or delivery of an Agent's Message (as
defined herein) that, upon receipt of notice from the Corporation or the
Issuer Trust of the occurrence of any event or
4
<PAGE>
(cover page continued)
the discovery of any fact which makes any statement contained or incorporated
by reference in this Prospectus untrue in any material respect or which causes
this Prospectus to omit to state a material fact necessary in order to make
the statements contained or incorporated by reference herein, in the light of
the circumstances under which they were made, not misleading, or of the
occurrence of certain other events specified in the Registration Rights
Agreement, such Participating Broker-Dealer will suspend the sale of New
Securities pursuant to this Prospectus until the Corporation or the Issuer
Trust has amended or supplemented this Prospectus to correct such misstatement
or omission and has furnished copies of this Prospectus as so amended or
supplemented to such Participating Broker-Dealer, or the Corporation or the
Issuer Trust has given notice that the sale of New Securities may be resumed,
as the case may be.
Prior to the Exchange Offer, there has been only a limited secondary market
and no public market for the Old Capital Securities. The New Capital
Securities will be a new issue of securities for which there currently is no
market. There can be no assurance as to the development or liquidity of any
market for the New Capital Securities. The Corporation and the Issuer Trust
currently do not intend to apply for listing of the New Capital Securities on
any securities exchange or for quotation through the National Association of
Securities Dealers Automated Quotation System or any other system.
Any Old Capital Securities not tendered and accepted in the Exchange Offer
will remain outstanding and will be entitled to all the same rights and will
be subject to the same limitations applicable thereto under the Amended and
Restated Trust Agreement relating to the Old Issuer Trust, dated as of January
16, 1997 (the "Old Trust Agreement"), as amended and supplemented from time to
time, among the Corporation, as Depositor, Wilmington Trust Company as
Property Trustee and Delaware Trustee, the Administrative Trustees named
therein and the Holders of common and preferred securities of the Old Issuer
Trust from time to time (except for those rights that terminate upon
consummation of the Exchange Offer). Following consummation of the Exchange
Offer, the holders of Old Capital Securities will continue to be subject to
all of the existing restrictions upon transfer thereof and none of the
Corporation, the Issuer Trust or the Old Issuer Trust will have any further
obligation to such holders (other than under certain limited circumstances) to
provide for registration under the Securities Act of the Old Capital
Securities held by them. To the extent that Old Capital Securities are
tendered and accepted in the Exchange Offer, a holder's ability to sell
untendered Old Capital Securities could be adversely affected. See "Risk
Factors--Consequences of a Failure to Exchange Old Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE URGED TO READ THIS
PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING
WHETHER TO TENDER THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange on or prior to 5:00
p.m., New York City time, on , 1997 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is
extended by the Corporation and the Issuer Trust (in which case the term
"Expiration Date" will mean the latest date and time to which the Exchange
Offer is extended). Tenders of Old Capital Securities may be withdrawn at any
time on or prior to the Expiration Date. The Exchange Offer is not conditioned
upon any minimum Liquidation Amount of Old Capital Securities being tendered
for exchange. However, the Exchange Offer is subject to certain events and
conditions, which may be waived by the Corporation, and to the terms and
provisions of the Registration Rights Agreement. Old Capital Securities may be
tendered in whole or in any part having a Liquidation Amount of not less than
$100,000 (100 Old Capital Securities) or any integral multiple of $1,000 in
excess thereof. The Corporation has agreed to pay all expenses of the Exchange
Offer, except as otherwise specified herein. See "The Exchange Offer--Fees and
Expenses." Each New Capital Security will pay cumulative Distributions from
the most recent distribution date on the Old Capital Securities surrendered in
exchange for such New Capital Securities or, if no distributions have been
paid on such Old Capital Securities, from January 16, 1997. Holders of the Old
Capital Securities whose Old Capital Securities are accepted for exchange will
not receive accumulated distributions on such Old Capital Securities for any
period from and after the last distribution date on such Old Capital
Securities prior to the original issue date of the New Capital Securities or,
if no such distributions have been paid, will not receive any
5
<PAGE>
(cover page continued)
accumulated distributions on such Old Capital Securities, and will be deemed
to have waived the right to receive any distributions on such Old Capital
Securities accumulated from and after such distribution date or, if no such
interest has been paid or duly provided for, from and after January 16, 1997.
This Prospectus, together with the Letter of Transmittal, is being sent to all
registered holders of Old Capital Securities as of , 1997.
Neither the Corporation nor the Issuer Trust will receive any proceeds from
the issuance of the New Capital Securities offered hereby. No dealer-manager
is being used in connection with this Exchange Offer. See "Use of Proceeds"
and "Plan of Distribution."
This Prospectus may be used by BT Securities Corporation, a wholly owned
subsidiary of the Corporation, in connection with offers and sales related to
market-making transactions in New Securities effected from time to time after
the commencement of the offering to which this Prospectus relates. BT
Securities Corporation may act as principal or agent in such transactions,
including as agent for the counterparty when acting as principal or as agent
for both counterparties, and may receive compensation in the form of discounts
and commissions, including from both counterparties when it acts as agent for
both. Such sales will be made at prevailing market prices at the time of sale,
at prices related thereto or at negotiated prices.
THE NEW CAPITAL SECURITIES WILL BE ISSUED, AND MAY BE HELD OR TRANSFERRED,
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. ANY
TRANSFER, SALE OR OTHER DISPOSITION OF NEW CAPITAL SECURITIES IN A BLOCK
HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000, OR RESULTING IN A HOLDER'S
HOLDING NEW CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
THAN $100,000, SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER,
ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH NEW CAPITAL
SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF
DISTRIBUTIONS ON SUCH NEW CAPITAL SECURITIES, AND SUCH TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH NEW CAPITAL SECURITIES.
---------------
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM
BANKERS TRUST NEW YORK CORPORATION, 130 LIBERTY STREET, NEW YORK, NEW YORK
10006, TELEPHONE NUMBER (212) 250-2500. IN ORDER TO ENSURE TIMELY DELIVERY OF
THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY , 1997.
---------------
FOR NORTH CAROLINA RESIDENTS ONLY
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 OFFERING CIRCULAR.
---------------
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A
"PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF
ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON
INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THE NEW CAPITAL
SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR
84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE
NEW CAPITAL SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT EITHER (A) IS NOT A
PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF
OR WITH "PLAN ASSETS" OF ANY PLAN OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH
PURCHASE OR HOLDING. SEE "CERTAIN ERISA CONSIDERATIONS."
6
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 7
Incorporation of Certain Documents by Reference........................... 8
Summary................................................................... 9
Risk Factors.............................................................. 15
Bankers Trust New York Corporation........................................ 22
Selected Consolidated Financial Data And Other Information................ 24
BT Capital Trust B........................................................ 25
Use of Proceeds........................................................... 25
Capitalization............................................................ 26
Accounting Treatment...................................................... 27
The Exchange Offer........................................................ 28
Description of New Securities............................................. 37
Relationship Among the New Capital Securities, the New Junior Subordinated
Debentures, the New Guarantee and the New Expense Agreement.............. 62
Description of Old Securities............................................. 63
Certain Federal Income Tax Consequences................................... 64
Certain ERISA Considerations.............................................. 68
Plan of Distribution...................................................... 70
Validity of New Securities................................................ 71
Experts................................................................... 71
</TABLE>
----------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING CONTAINED HEREIN, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE CORPORATION OR THE ISSUER TRUST. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH
IT RELATES OR AN OFFER TO ANY PERSON IN ANY JURISDICTION IN WHICH SUCH 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 NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
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, OR THAT THERE HAS NOT BEEN ANY CHANGE IN THE
AFFAIRS OF THE CORPORATION OR THE ISSUER TRUST SINCE THE DATE HEREOF.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the Exchange
Act, and in accordance therewith files reports, proxy statements and other
information with 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., Room 1024, 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 (Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511). Copies of
such material can also be obtained at prescribed rates from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549. The Commission also maintains a site on the World Wide Web, the
address of which is http://www.sec.gov, that contains reports, proxy
statements and other information regarding issuers, such as
7
<PAGE>
the Corporation, that file electronically with the Commission. In addition,
such materials can be inspected at the office of the New York Stock Exchange,
Inc. and the office of the American Stock Exchange, Inc., on which certain
securities of the Corporation are listed. This Prospectus does not contain all
the information set forth in the registration statement of which this
Prospectus forms a part (the "Registration Statement"), which the Corporation
and the Issuer Trust have filed with the Commission under the Securities Act,
and to which reference is hereby made, certain parts of which are omitted in
accordance with the rules and regulations of the Commission.
No separate financial statements of the Issuer Trust have been included or
incorporated by reference herein. The Corporation and the Issuer Trust do not
consider that such financial statements would be material to holders of the
New Capital Securities because the Issuer Trust is a newly formed special
purpose entity, has no operating history or independent operations and is not
engaged in and does not propose to engage in any activity other than holding
as trust assets the New Junior Subordinated Debentures and issuing the New
Trust Securities and engaging in only those other activities necessary or
incidental thereto. Furthermore, taken together, the Corporation's obligations
under the New Junior Subordinated Debentures, the New Junior Subordinated
Indenture, the New Trust Agreement, the New Expense Agreement and the New
Guarantee (in each case as defined herein), in the aggregate, provide a full,
irrevocable and unconditional guarantee of payments of Distributions and other
amounts due on the New Capital Securities. See "BT Capital Trust B,"
"Description of New Securities", and "Relationship Among the New Capital
Securities, the New Junior Subordinated Debentures, the New Guarantee and the
New Expense Agreement". In addition, the Corporation does not expect that the
Issuer Trust will be filing reports under the Exchange Act with the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation and the Issuer Trust hereby incorporate 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, 1995, 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, 1996, 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 March 19, April 15, April 25, May 3, May 22, June 18, July 18, July
22, July 26, August 1, October 3, October 17, October 22, November 19 and
December 9, 1996 and January 23, 1997, filed pursuant to Section 13 of the
Exchange Act.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of any offering of the securities offered hereby
shall be deemed to be incorporated by reference into this Prospectus and to be
a part hereof from the date of filing of such documents. Any statement
contained 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 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.
8
<PAGE>
SUMMARY
The following is a summary of certain information contained elsewhere in this
Prospectus and should be read in conjunction with such information. This
summary is subject to, and qualified in its entirety by reference to, the more
detailed information appearing elsewhere in this Prospectus.
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 December 31, 1996, the Corporation had
consolidated total assets of $120.2 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
Investment Banking, Risk Management Services, Trading & Sales, Investment
Management, Client Processing Services, Australia/New Zealand, Asia, Latin
America and Corporate. 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.
BT CAPITAL TRUST B
The Issuer Trust is a statutory business trust created under Delaware law
pursuant to the filing of a certificate of trust with the Delaware Secretary of
State on February 28, 1997, which will be governed by the New Trust Agreement
(as defined below) among the Corporation, as Depositor, Wilmington Trust
Company, as Property Trustee and as Delaware Trustee, the Administrative
Trustees named therein, and the Holders of the New Trust Securities from time
to time. The Issuer Trust's business and affairs are conducted by its trustees:
initially, Wilmington Trust Company, as Property Trustee, Wilmington Trust
Company, as Delaware Trustee and the Administrative Trustees. The Issuer Trust
exists for the exclusive purposes of (i) issuing and selling the New Trust
Securities, (ii) using the proceeds from the sale of the New Trust Securities
to acquire the New Junior Subordinated Debentures and (iii) engaging in only
those other activities necessary or incidental thereto (such as registering the
transfer of the New Trust Securities). Accordingly, the New Junior Subordinated
Debentures will be the sole assets of the Issuer Trust, and payments under the
New Junior Subordinated Debentures will be the sole source of revenue of the
Issuer Trust.
THE EXCHANGE OFFER
Up to $250,000,000 aggregate Liquidation Amount of New Capital Securities are
being offered in exchange for a like aggregate Liquidation Amount of Old
Capital Securities. Old Capital Securities may be tendered for exchange in
whole or in part in a Liquidation Amount of $100,000 (100 Old Capital
Securities) or any integral multiple of $1,000 in excess thereof, provided that
if any Old Capital Securities are tendered for exchange in part, the untendered
Liquidation Amount must be $100,000 or any integral multiple of $1,000 in
excess thereof. The Corporation is making the Exchange Offer in order to
satisfy the obligations of the Corporation and the Old Issuer Trust under the
Registration Rights Agreement, dated as of January 16, 1997, among the
Corporation, BT Capital Trust A, a statutory business trust created under the
laws of Delaware (the "Old Issuer Trust"), and the Initial Purchaser of the Old
Capital Securities, relating to the Old Capital Securities. For a description
of the procedures for tendering Old Capital Securities, see "The Exchange
Offer--Procedures for Tendering Old Capital Securities."
9
<PAGE>
Expiration Date
The Expiration Date of the Exchange Offer will be 5:00 p.m., New York City
time, on , 1997 unless the Exchange Offer is extended by the
Corporation and the Issuer Trust. See "The Exchange Offer--Expiration Date;
Extensions; Amendments."
Conditions to Exchange Offer
The Exchange Offer is subject to certain conditions, which may be waived by
the Corporation and the Issuer Trust in their sole discretion. The Exchange
Offer is not conditioned upon any minimum Liquidation Amount of Old Capital
Securities being tendered. See "The Exchange Offer--Conditions to Exchange
Offer." The Corporation reserves the right in its sole discretion, subject to
applicable law, at any time and from time to time, (i) to delay the acceptance
of the Old Capital Securities for exchange, (ii) to terminate the Exchange
Offer if certain specified conditions have not been satisfied, (iii) to extend
the Expiration Date of the Exchange Offer and retain all Old Capital Securities
tendered pursuant to the Exchange Offer, subject, however, to the right of
holders of Old Capital Securities to withdraw their tendered Old Capital
Securities, or (iv) to waive any condition or otherwise amend the terms of the
Exchange Offer in any respect. See "The Exchange Offer--Expiration Date;
Extensions; Amendments."
Withdrawal Rights
Tenders of Old Capital Securities may be withdrawn at any time on or prior to
the Expiration Date by delivering a written notice of such withdrawal to
Wilmington Trust Company, as Exchange Agent (the "Exchange Agent"), in
conformity with certain procedures set forth under "The Exchange Offer--
Withdrawal Rights."
Procedures for Tendering Old Capital Securities
Tendering holders of Old Capital Securities must complete and sign a Letter
of Transmittal in accordance with the instructions contained therein and
forward the same by mail, facsimile or hand delivery, together with any other
required documents, to the Exchange Agent, either with the Old Capital
Securities to be tendered or in compliance with the specified procedures for
guaranteed delivery of Old Capital Securities. Certain brokers, dealers,
commercial banks, trust companies and other nominees may also effect tenders by
book-entry transfer, including an Agent's Message in lieu of the Letter of
Transmittal. Holders of Old Capital Securities registered in the name of a
broker, dealer, commercial bank, trust company or other nominee are urged to
contact such person promptly if they wish to tender Old Capital Securities
pursuant to the Exchange Offer. See "The Exchange Offer--Procedures for
Tendering Old Capital Securities." Letters of Transmittal and certificates
representing Old Capital Securities should not be sent to the Corporation or
the Issuer Trust. Such documents should only be sent to the Exchange Agent.
Questions regarding how to tender and requests for information should be
directed to the Exchange Agent. See "The Exchange Offer--Exchange Agent."
Resales of New Capital Securities
The Corporation is making the Exchange Offer in reliance on the position of
the staff of the Division of Corporation Finance of the Commission as set forth
in certain interpretive letters addressed to third parties in other
transactions. However, neither the Corporation nor the Issuer Trust has sought
its own interpretive letter and there can be no assurance that the staff of the
Division of Corporation Finance of the Commission would make a similar
determination with respect to the Exchange Offer as it has in such interpretive
letters to third parties. Based on these interpretations by the staff of the
Division of Corporation Finance, and subject to the two immediately following
sentences, the Corporation believes that New Capital Securities issued pursuant
to the Exchange Offer in exchange for Old Capital Securities may be offered for
resale, resold and otherwise transferred by a holder thereof (other than a
holder who is a broker-dealer) without further compliance with the registration
10
<PAGE>
and prospectus delivery requirements of the Securities Act, provided that such
New Capital Securities are acquired in the ordinary course of such holder's
business and that such holder is not participating, and has no arrangement or
understanding with any person to participate, in a distribution (within the
meaning of the Securities Act) of such New Capital Securities. However, any
holder of Old Capital Securities who is an Affiliate or who intends to
participate in the Exchange Offer for the purpose of distributing the New
Capital Securities, or any broker-dealer who purchased the Old Capital
Securities from the Issuer Trust to resell pursuant to Rule 144A or any other
available exemption under the Securities Act, (i) will not be able to rely on
the interpretations of the staff of the Division of Corporation Finance of the
Commission set forth in the above-mentioned interpretive letters, (ii) will not
be permitted or entitled to tender such Old Capital Securities in the Exchange
Offer, and (iii) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale or other
transfer of such Old Capital Securities unless such sale is made pursuant to an
exemption from such requirements. In addition, as described below, any
Participating Broker-Dealer must deliver a prospectus meeting the requirements
of the Securities Act in connection with any resales of such New Capital
Securities.
Each holder of Old Capital Securities that wishes to exchange Old Capital
Securities for New Capital Securities in the Exchange Offer will be required to
represent that (i) it is not an Affiliate, (ii) any New Capital Securities to
be received by it are being acquired in the ordinary course of its business,
(iii) it has no arrangement or understanding with any person to participate in
a distribution (within the meaning of the Securities Act) of such New Capital
Securities, and (iv) if such holder is not a broker-dealer, such holder is not
engaged in, and does not intend to engage in, a distribution (within the
meaning of the Securities Act) of such New Capital Securities. The Letter of
Transmittal contains the foregoing restrictions. Each Participating Broker-
Dealer will be deemed to have acknowledged by execution of the Letter of
Transmittal or delivery of an Agent's Message that it acquired the Old Capital
Securities for its own account as the result of market-making activities or
other trading activities and must agree that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such New Capital Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a Participating Broker-Dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. Based on the position taken by the staff of the Division of
Corporation Finance of the Commission in the interpretive letters referred to
above, the Corporation and the Issuer Trust believe that Participating Broker-
Dealers may fulfill their prospectus delivery requirements with respect to the
New Capital Securities received upon exchange of such Old Capital Securities
(other than Old Capital Securities which represent an unsold allotment from the
original sale of the Old Capital Securities) with a prospectus meeting the
requirements of the Securities Act, which may be the prospectus prepared for an
exchange offer so long as it contains a description of the plan of distribution
with respect to the resale of such New Capital Securities. Accordingly, this
Prospectus may be used by a Participating Broker-Dealer in connection with
resales of New Capital Securities received in exchange for Old Capital
Securities where such Old Capital Securities were acquired by such
Participating Broker-Dealer for its own account as a result of market-making or
other trading activities. Subject to certain provisions set forth in the
Registration Rights Agreement and to the limitations described below under "The
Exchange Offer--Resales of New Capital Securities," the Corporation and the
Issuer Trust have agreed that this Prospectus may be used by a Participating
Broker-Dealer in connection with resales of such New Capital Securities for a
period ending 90 days after the Expiration Date or, if earlier, when all such
New Capital Securities have been disposed of by such Participating Broker-
Dealer. See "Plan of Distribution." Any person, including any Participating
Broker-Dealer, who is an Affiliate may not rely on such interpretive letters
and must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any resale transaction. See "The Exchange
Offer--Resales of New Capital Securities."
Exchange Agent
The Exchange Agent is Wilmington Trust Company. The addresses, and telephone
and facsimile numbers of the Exchange Agent are set forth under "The Exchange
Offer--Exchange Agent" and in the Letter of Transmittal.
11
<PAGE>
DESCRIPTION OF NEW SECURITIES
Securities Offered.......... The Corporation is offering up to $250,000,000
aggregate Liquidation Amount of the Issuer
Trust's 7.90% Capital Securities, Series B1
(Liquidation Amount $1,000 per Capital Security),
which have been registered under the Securities
Act. The terms of the New Capital Securities are
identical in all material respects to the terms
of the Old Capital Securities, except that the
New Capital Securities have been registered under
the Securities Act and therefore are not subject
to certain of the restrictions on transfer
applicable to the Old Capital Securities and will
not provide for any increase in the rate at which
Distributions will accumulate thereon. See "The
Exchange Offer--Purpose and Effect of the
Exchange Offer," "Description of New Securities"
and "Description of Old Securities."
Distribution Dates.......... January 15 and July 15 of each year, commencing
July 15, 1997. Holders of Old Capital Securities
whose Old Capital Securities are accepted for
exchange will not receive accumulated
distributions on such Old Capital Securities for
any period from and after the last distribution
date with respect to such Old Capital Securities
prior to the original issue date of the New
Capital Securities or, if no such distributions
have been made, will not receive any accumulated
distributions on such Old Capital Securities.
Such holders will be deemed to have waived the
right to receive any distributions on such Old
Capital Securities accumulated from and after
such distribution date or, if no such
distributions have been made, from and after
January 16, 1997.
Extension Periods........... Distributions on New Capital Securities may be
deferred for the duration of any Extension Period
selected by the Corporation with respect to the
payment of interest on the New Junior
Subordinated Debentures. No Extension Period will
exceed 10 consecutive semi-annual periods or
extend beyond the Stated Maturity as in effect on
the date on which the Corporation elects to
effect such deferral. See "Description of New
Securities--Description of New Junior
Subordinated Debentures--Option to Extend
Interest Payment Period" and "Certain Federal
Income Tax Consequences--Interest Income and
Original Issue Discount."
Ranking..................... The New Capital Securities will rank pari passu,
and payments thereon will be made pro rata, with
the New Common Securities except as described
under "Description of New Securities--Description
of New Capital Securities--Subordination of New
Common Securities." The New Junior Subordinated
Debentures will be unsecured and subordinate and
junior in right of payment to the extent and in
the manner set forth in the New Junior
Subordinated Indenture to all Senior Indebtedness
of the Corporation. See "Description of New
Securities--Description of New Junior
Subordinated Debentures." The New Guarantee will
constitute an unsecured obligation of the
Corporation and will rank subordinate and junior
in right of payment to all Senior Indebtedness to
the extent and in the manner set forth in the New
Guarantee. See "Description of New Securities--
Description of New Guarantee."
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<PAGE>
Redemption.................. The New Trust Securities are subject to mandatory
redemption in whole but not in part (i) at the
Stated Maturity upon repayment of the New Junior
Subordinated Debentures, (ii) contemporaneously
with the optional redemption at any time by the
Corporation of the New Junior Subordinated
Debentures upon the occurrence and continuation
of a Tax Event, Investment Company Event or
Capital Treatment Event and (iii) at any time on
or after January 15, 2007, contemporaneously with
the optional redemption by the Corporation of the
New Junior Subordinated Debentures, in each case
at the applicable Redemption Price. See
"Description of New Securities--Description of
New Capital Securities--Redemption."
Rating...................... The New Capital Securities are expected to be
rated "a2" by Moody's Investors Service, Inc. and
BBB+ by Standard & Poor's Ratings Services. A
security rating is not a recommendation to buy,
sell or hold securities and may be subject to
revision or withdrawal at any time by the
assigning rating organization.
Transfer.................... The New Capital Securities will be issued, and
may be held and transferred, only in blocks
having a Liquidation Amount of not less than
$100,000 (100 New Capital Securities). Any
transfer, sale or other disposition of New
Capital Securities in a block having a
Liquidation Amount of less than $100,000, or
resulting in a holder's holding New Capital
Securities in a block having a Liquidation Amount
of less than $100,000, will be deemed to be void
and of no legal effect whatsoever. See
"Description of New Securities--Description of
New Capital Securities--Book-Entry, Delivery and
Form."
ERISA Considerations........ Holders of Old Capital Securities must carefully
consider the restrictions on purchase set forth
under "Certain ERISA Considerations" before
tendering Old Capital Securities in the Exchange
Offer.
Absence of Market for the
Old Capital Securities and The New Capital Securities will be a new issue of
New Capital Securities...... securities for which there currently is no
market. Lehman Brothers Inc., the initial
purchaser of the Old Capital Securities (the
"Initial Purchaser"), informed the Corporation
and the Old Issuer Trust in connection with the
offering of the Old Capital Securities that the
Initial Purchaser intended to make a market in
the Old Capital Securities. However, the Initial
Purchaser is not obligated to make a market in
the Old Capital Securities or the New Capital
Securities, and any market making in the Old
Capital Securities may be discontinued at any
time without notice. Accordingly, there can be no
assurance as to the development or liquidity of
any market for the New Capital Securities. The
Corporation and the Issuer Trust do not intend to
apply for listing the New Capital Securities.
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Use of Proceeds............. Neither the Corporation nor the Issuer Trust will
receive any proceeds from the issuance of the New
Capital Securities offered hereby. See "Use of
Proceeds."
For additional information regarding the Exchange Offer and the New Capital
Securities, see "The Exchange Offer," "Description of New Securities,"
"Relationship among the New Capital Securities, the New Junior Subordinated
Debentures, the New Guarantee and the New Expense Agreement," "Description of
Old Capital Securities" and "Certain Federal Income Tax Consequences."
RISK FACTORS
Holders of Old Capital Securities should carefully consider the matters set
forth under "Risk Factors" before tendering Old Capital Securities in the
Exchange Offer.
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As used herein, (i) the "New Junior Subordinated Indenture" means the Junior
Subordinated Indenture, dated as of February 5, 1997, as amended and
supplemented from time to time, between the Corporation and Wilmington Trust
Company, as trustee (the "Debenture Trustee"), pursuant to which the New
Junior Subordinated Debentures are issued, (ii) the "New Trust Agreement"
means the Amended and Restated Trust Agreement relating to the Issuer Trust,
dated as of , 1997, as amended and supplemented from time to time, among
the Corporation, as Depositor, Wilmington Trust Company, as Property Trustee
(the "Property Trustee"), Wilmington Trust Company, as Delaware Trustee (the
"Delaware Trustee") and the Administrative Trustees named therein (the
"Administrative Trustees") (collectively, the "Issuer Trustees"), and the
Holders of the New Trust Securities from time to time, (iii) the "New
Guarantee" means the Guarantee Agreement, dated as of , 1997, relating
to the New Capital Securities, as amended and supplemented from time to time,
between the Corporation and Wilmington Trust Company, as Guarantee Trustee
(the "Guarantee Trustee"), and (iv) the "New Expense Agreement" means the
Agreement as to Expenses and Liabilities, dated as of , 1997, as amended
and supplemented from time to time, between the Corporation and the Issuer
Trust.
RISK FACTORS
Holders of the Old Capital Securities should carefully review the
information contained elsewhere in this Prospectus and should particularly
consider the following matters before tendering Old Capital Securities in the
Exchange Offer.
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE NEW GUARANTEE AND THE NEW JUNIOR
SUBORDINATED DEBENTURES
The obligations of the Corporation under the New Guarantee and under the New
Junior Subordinated Debentures are subordinate and junior in right of payment
to all Senior Indebtedness of the Corporation. Substantially all of the
Corporation's existing indebtedness constitutes Senior Indebtedness. Because
the Corporation is a holding company, the right of the Corporation to
participate in any distribution of assets of any subsidiary, including
Bankers, upon such subsidiary's dissolution, winding-up, liquidation or
reorganization or otherwise (and thus the ability of holders of the New
Capital Securities to benefit indirectly from such distribution), is 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. There are various legal limitations on the extent to which certain
of the Corporation's subsidiaries may extend credit, pay dividends or
otherwise supply funds to, or engage in transactions with, the Corporation or
certain of its other subsidiaries. Accordingly, the New Junior Subordinated
Debentures and New Guarantee will be effectively subordinated to all existing
and future liabilities of the Corporation's subsidiaries, and holders of New
Junior Subordinated Debentures and the New Guarantee should look only to the
assets of the Corporation for payments on the New Junior Subordinated
Debentures and the New Guarantee. See "Bankers Trust New York Corporation."
None of the New Junior Subordinated Indenture, the New Guarantee or the New
Trust Agreement places any limitation on the amount of secured or unsecured
debt, including Senior Indebtedness, that may be incurred by the Corporation.
See "Description of New Securities--Description of New Guarantee--Status of
the Guarantee" and "Description of New Securities--Description of New Junior
Subordinated Debentures--Subordination."
The ability of the Issuer Trust to pay amounts due on the New Capital
Securities is solely dependent upon the Corporation's making payments on the
New Junior Subordinated Debentures as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES
So long as no Event of Default (as defined in the New Junior Subordinated
Indenture) (a "Debenture Event of Default") has occurred and is continuing
with respect to the New Junior Subordinated Debentures, the Corporation has
the right under the New Junior Subordinated Indenture to defer the payment of
interest on the New Junior Subordinated Debentures at any time or from time to
time for a period not exceeding 10 consecutive semi-annual periods with
respect to each Extension Period, provided that no Extension Period may extend
beyond the Stated Maturity of the Junior Subordinated Debentures as in effect
on the date on which the Corporation elects to effect such deferral. See
"Description of New Securities--Description of New Junior
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Subordinated Debentures--Debenture Events of Default." As a consequence of any
such deferral, semi-annual Distributions on the New Capital Securities by the
Issuer Trust will be deferred (and the amount of Distributions to which
holders of the New Capital Securities are entitled will accumulate additional
Distributions thereon at the rate of 7.90% per annum, compounded semi-annually
from the relevant payment date for such Distributions) during any such
Extension Period. During any such Extension Period, the Corporation may not
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation that rank pari passu in all respects with or
junior in interest to the New Junior Subordinated Debentures (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of
the Corporation in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with the
issuance of capital stock of the Corporation (or securities convertible into
or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of an exchange or conversion of any class or series of the
Corporation's capital stock (or any capital stock of a subsidiary of the
Corporation) for any class or series of the Corporation's capital stock or of
any class or series of the Corporation's indebtedness for any class or series
of the Corporation's capital stock, (c) the purchase of fractional interests
in shares of the Corporation's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options
or other rights where the dividend stock or the stock issuable upon exercise
of such warrants, options or other rights is the same stock as that on which
the dividend is being paid or ranks pari passu with or junior to such stock).
Prior to the termination of any such Extension Period, the Corporation may
further defer the payment of interest, provided that no Extension Period may
exceed 10 consecutive semi-annual periods or extend beyond the Stated Maturity
of the New Junior Subordinated Debentures as in effect on the date on which
the Corporation elects to effect such deferral. Upon the termination of any
Extension Period and the payment of all interest then accrued and unpaid
(together with interest thereon at the rate of 7.90% per annum, compounded
semi-annually, to the extent permitted by applicable law), the Corporation may
elect to begin a new Extension Period subject to the above conditions. There
is no limitation on the number of times that the Corporation may elect to
begin an Extension Period. See "Description of New Securities--Description of
New Capital Securities--Distributions" and "Description of New Securities--
Description of New Junior Subordinated Debentures--Option to Extend Interest
Payment Period."
Should an Extension Period occur, a holder of New Capital Securities will
continue to accrue income (in the form of original issue discount) in respect
of its pro rata share of the New Junior Subordinated Debentures held by the
Issuer Trust for United States federal income tax purposes. As a result, a
holder of New Capital Securities will include such income in gross income for
United States federal income tax purposes in advance of the receipt of cash,
and will not receive the cash related to such income from the Issuer Trust if
the holder disposes of the New Capital Securities prior to the record date for
the payment of Distributions. See "Certain Federal Income Tax Consequences--
Interest Income and Original Issue Discount" and "--Sales or Redemptions of
New Capital Securities."
The Corporation has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the New
Junior Subordinated Debentures. However, should the Corporation elect to
exercise such right in the future, the market price of the New Capital
Securities is likely to be affected. A holder that disposes of its New Capital
Securities during an Extension Period, therefore, might not receive the same
return on its investment as a holder that continues to hold its New Capital
Securities. In addition, as a result of the existence of the Corporation's
right to defer interest payments, the market price of the New Capital
Securities (which represent preferred undivided beneficial interests in the
assets of the Issuer Trust) may be more volatile than the market prices of
other securities on which original issue discount accrues that are not subject
to such deferrals.
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TAX EVENT, INVESTMENT COMPANY EVENT OR CAPITAL TREATMENT EVENT--SHORTENING OF
MATURITY OF NEW JUNIOR SUBORDINATED DEBENTURES OR REDEMPTION
Upon the occurrence and during the continuation of a Tax Event, Investment
Company Event or Capital Treatment Event (whether occurring before or after
January 15, 2007), the Corporation has the right, if certain conditions are
met, (i) to shorten the maturity of the New Junior Subordinated Debentures to
a date not earlier than January 15, 2017, or (ii) to redeem the New Junior
Subordinated Debentures in whole (but not in part) within 90 days following
the occurrence of such Tax Event, Investment Company Event or Capital
Treatment Event (or, if the approval of the Federal Reserve is then required
for such redemption, on such later date as promptly as reasonably practicable
after such approval is obtained) and thereby cause a mandatory redemption of
the New Capital Securities. The Corporation has committed to the Federal
Reserve that the Corporation will not exercise such right without having
received prior approval of the Federal Reserve to do so, if then required
under applicable Federal Reserve capital guidelines or policies. See
"Description of New Securities--Description of New Junior Subordinated
Debentures--Conditional Right to Shorten Maturity or Redeem Upon a Tax Event,
Investment Company Event or Capital Treatment Event."
"Tax Event" means the receipt by the Issuer Trust or the Corporation of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after January 9, 1997,
there is more than an insubstantial risk that (i) the Issuer Trust is, or will
be within 90 days of the delivery of such opinion, subject to United States
federal income tax with respect to income received or accrued on the New
Junior Subordinated Debentures, (ii) interest payable by the Corporation on
the New Junior Subordinated Debentures is not, or within 90 days of the
delivery of such opinion will not be, deductible by the Corporation, in whole
or in part, for United States federal income tax purposes or (iii) the Issuer
Trust is, or will be within 90 days of the delivery of the opinion, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges (each of the circumstances referred to in clauses (i), (ii) or (iii)
of this sentence being referred to herein as an "Adverse Tax Consequence").
See "--Possible Tax Law Changes Affecting the New Capital Securities" for a
discussion of certain legislative proposals that, if adopted, could give rise
to a Tax Event, which may permit the Corporation to shorten the maturity of
the New Junior Subordinated Debentures to a date not earlier than January 15,
2017 or cause a redemption of the New Capital Securities prior to January 9,
2007.
"Investment Company Event" means the receipt by the Issuer Trust or the
Corporation of an opinion of counsel experienced in such matters to the effect
that, as a result of the occurrence of a change in law or regulation or a
change (including any announced proposed change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act of 1940, as amended
(the "Investment Company Act"), which change or proposed change becomes
effective or would become effective, as the case may be, on or after
January 9, 1997.
"Capital Treatment Event" means the reasonable determination by the
Corporation that, as a result of the occurrence of any amendment to, or change
(including any announced proposed change) in, the laws (or any rules or
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such
laws, rules or regulations, which amendment or change is effective or which
pronouncement, action or decision is announced on or after January 9, 1997,
there is more than an insubstantial risk that the Corporation will not be
entitled to treat an amount equal to the Liquidation Amount of the New Capital
Securities as "Tier 1 Capital" (or the then equivalent thereof) for purposes
of the capital adequacy guidelines of the Federal Reserve, as then in effect
and applicable to the Corporation.
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EXCHANGE OF NEW CAPITAL SECURITIES FOR NEW JUNIOR SUBORDINATED DEBENTURES
The holder of all of the outstanding New Common Securities has the right at
any time to dissolve the Issuer Trust and, after satisfaction of liabilities
to creditors of the Issuer Trust as provided by applicable law, cause the New
Junior Subordinated Debentures to be distributed to the holders of the New
Capital Securities and New Common Securities in liquidation of the Issuer
Trust. The Corporation has committed to the Federal Reserve that, so long as
the Corporation (or any affiliate) is the holder of all the New Common
Securities, the Corporation (or such affiliate) will not exercise such right
without having received the prior approval of the Federal Reserve to do so, if
then required under applicable Federal Reserve capital guidelines or policies.
See "Description of New Securities--Description of New Capital Securities--
Liquidation Distribution Upon Dissolution."
Under current United States federal income tax law and interpretations and
assuming, as expected, that the Issuer Trust will not be taxable as a
corporation, a distribution of the New Junior Subordinated Debentures upon a
liquidation of the Issuer Trust should not be a taxable event to holders of
the New Capital Securities. However, if a Tax Event were to occur that would
cause the Issuer Trust to be subject to United States federal income tax with
respect to income received or accrued on the New Junior Subordinated
Debentures, a distribution of the New Junior Subordinated Debentures by the
Issuer Trust could be a taxable event to the Issuer Trust and the holders of
the New Capital Securities. See "Certain Federal Income Tax Consequences--
Distribution of New Junior Subordinated Debentures to Securityholders."
SHORTENING OF STATED MATURITY OF NEW JUNIOR SUBORDINATED DEBENTURES
Upon the occurrence of a Tax Event, Investment Company Event or a Capital
Treatment Event, the Corporation in certain circumstances will have the right
to shorten the Stated Maturity of the New Junior Subordinated Debentures to a
date not earlier than January 15, 2017 and thereby cause the New Capital
Securities to be redeemed on such earlier date. See "Description of New
Securities--Description of New Junior Subordinated Debentures--Conditional
Right to Shorten Maturity or Redeem Upon a Tax Event, Investment Company Event
or Capital Treatment Event."
MARKET PRICES
There can be no assurance as to the market prices for New Capital
Securities, or for New Junior Subordinated Debentures that may be distributed
in exchange for New Capital Securities if a liquidation of the Issuer Trust
occurs. Accordingly, the New Capital Securities or the New Junior Subordinated
Debentures that a holder of New Capital Securities may receive on liquidation
of the Issuer Trust may trade at a discount to the price that the investor
paid to purchase the New Capital Securities offered hereby. Because holders of
New Capital Securities may receive New Junior Subordinated Debentures on
dissolution of the Issuer Trust, prospective purchasers of New Capital
Securities are also making an investment decision with regard to the New
Junior Subordinated Debentures and should carefully review all the information
regarding the New Junior Subordinated Debentures contained herein. See
"Description of New Securities--Description of New Junior Subordinated
Debentures."
RIGHTS UNDER THE NEW GUARANTEE
Wilmington Trust Company will act as the Guarantee Trustee and will hold the
New Guarantee for the benefit of the holders of the New Capital Securities.
Wilmington Trust Company will also act as Debenture Trustee for the New Junior
Subordinated Debentures and as Property Trustee and as Delaware Trustee under
the New Trust Agreement. The New Guarantee guarantees to the holders of the
New Capital Securities the following payments, to the extent not paid by the
Issuer Trust: (i) any accumulated and unpaid Distributions required to be paid
on the New Capital Securities, to the extent that the Issuer Trust has funds
on hand available therefor at such time, (ii) the Redemption Price with
respect to any New Capital Securities called for redemption, to the
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extent that the Issuer Trust has funds on hand available therefor at such
time, and (iii) upon a voluntary or involuntary dissolution, winding-up or
liquidation of the Issuer Trust (unless the New Junior Subordinated Debentures
are distributed to holders of the New Capital Securities), the lesser of (a)
the aggregate of the Liquidation Amount and all accumulated and unpaid
Distributions to the date of payment, to the extent that the Issuer Trust has
funds on hand available therefor at such time, and (b) the amount of assets of
the Issuer Trust remaining available for distribution to holders of the New
Capital Securities on liquidation of the Issuer Trust. The New Guarantee is
subordinate as described under "--Ranking of Subordinated Obligations Under
the New Guarantee and the New Junior Subordinated Debentures." The holders of
not less than a majority in aggregate Liquidation Amount of the outstanding
New Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the New Guarantee or to direct the exercise of any trust power
conferred upon the Guarantee Trustee under the New Guarantee. Any holder of
the New Capital Securities may institute a legal proceeding directly against
the Corporation to enforce its rights under the New Guarantee without first
instituting a legal proceeding against the Issuer Trust, the Guarantee Trustee
or any other person or entity. If the Corporation were to default on its
obligation to pay amounts payable under the New Junior Subordinated
Debentures, the Issuer Trust may lack funds for the payment of Distributions
or amounts payable on redemption of the New Capital Securities or otherwise,
and, in such event, holders of the New Capital Securities would not be able to
rely upon the New Guarantee for payment of such amounts. Instead, if a
Debenture Event of Default has occurred and is continuing and such event is
attributable to the failure of the Corporation to pay any amounts payable in
respect of the New Junior Subordinated Debentures on the payment date on which
such payment is due and payable, then a holder of New Capital Securities may
institute a legal proceeding directly against the Corporation for enforcement
of payment to such holder of any amounts payable in respect of such New Junior
Subordinated Debentures having a principal amount equal to the aggregate
Liquidation Amount of the New Capital Securities of such holder (a "Direct
Action"). In connection with such Direct Action, the Corporation will have a
right of set-off under the New Junior Subordinated Indenture to the extent of
any payment made by the Corporation to such holder of New Capital Securities
in the Direct Action. Except as described herein, holders of New Capital
Securities will not be able to exercise directly any other remedy available to
the holders of the New Junior Subordinated Debentures or assert directly any
other rights in respect of the New Junior Subordinated Debentures. See
"Description of New Securities--Description of New Junior Subordinated
Debentures--Enforcement of Certain Rights by Holders of New Capital
Securities," and "--Debenture Events of Default" and "Description of New
Securities--Description of New Guarantee." The New Trust Agreement provides
that each holder of New Capital Securities by acceptance thereof agrees to the
provisions of the New Guarantee and the New Junior Subordinated Indenture.
LIMITED VOTING RIGHTS
Holders of New Capital Securities will have limited voting rights relating
generally to the modification of the New Capital Securities and the New
Guarantee and the exercise of the Issuer Trust's rights as holder of New
Junior Subordinated Debentures. Holders of New Capital Securities will not be
entitled to appoint, remove or replace the Property Trustee or the Delaware
Trustee except upon the occurrence of certain events described herein. The
Issuer Trustees and the holder of all the New Common Securities may, subject
to certain conditions, amend the New Trust Agreement without the consent of
holders of New Capital Securities to cure any ambiguity or make other
provisions not inconsistent with other provisions under the New Trust
Agreement or to ensure that the Issuer Trust (i) will not be taxable as a
corporation or as other than a grantor trust for United States federal income
tax purposes, or (ii) will not be required to register as an "investment
company" under the Investment Company Act. See "Description of New
Securities--Description of New Capital Securities--Voting Rights; Amendment of
New Trust Agreement" and "--Removal of Issuer Trustees; Appointment of
Successors."
CONSEQUENCES OF A FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the Securities Act
or any state securities laws and therefore may not be offered, sold or
otherwise transferred except in compliance with the registration requirements
of the Securities Act and any other applicable securities laws, or pursuant to
an exemption
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therefrom or in a transaction not subject thereto, and in each case in
compliance with certain other conditions and restrictions. Old Capital
Securities that remain outstanding after consummation of the Exchange Offer
will continue to bear a legend reflecting such restrictions on transfer. In
addition, upon consummation of the Exchange Offer, holders of Old Capital
Securities that remain outstanding will not be entitled to any rights to have
such Old Capital Securities registered under the Securities Act or to any
similar rights under the Registration Rights Agreement (subject to certain
limited exceptions). The Corporation and the Old Issuer Trust do not intend to
register under the Securities Act any Old Capital Securities that remain
outstanding after consummation of the Exchange Offer (subject to such limited
exceptions, if applicable).
To the extent that Old Capital Securities are tendered and accepted in the
Exchange Offer, a holder's ability to sell untendered Old Capital Securities
could be adversely affected. To the extent that Old Capital Securities are
tendered and accepted in connection with the Exchange Offer, any trading
market in the Old Capital Securities that remain outstanding after the
Exchange Offer could be adversely affected.
The Old Capital Securities provide that, if the Exchange Offer is not
consummated within 35 days of the date hereof, the Distribution rate borne by
the Old Capital Securities will increase by 0.25% per annum commencing on the
36th day after the date hereof, until the Exchange Offer is consummated. See
"Description of Old Capital Securities." Following consummation of the
Exchange Offer, the Old Capital Securities will not be entitled to any
increase in the Distribution rate thereon. The New Capital Securities will not
be entitled to any such increase in the Distribution rate thereon.
ABSENCE OF PUBLIC MARKET
The Old Capital Securities have not been registered under the Securities Act
and will be subject to restrictions on transferability to the extent that they
are not exchanged for the New Capital Securities. Although the New Capital
Securities will generally be permitted to be resold or otherwise transferred
by the holders (so long as the holders are not Affiliates) without compliance
with the registration requirements under the Securities Act, they will
constitute a new issue of securities with no established trading market. The
Old Capital Securities and the New Capital Securities may be transferred by
the holders thereof only in blocks having a Liquidation Amount of not less
than $100,000 (100 Old Capital Securities or New Capital Securities, as the
case may be). See "Description of New Securities--Description of New Capital
Securities--Book-Entry, Delivery and Form" and "Description of Old
Securities." The Corporation and the Old Issuer Trust were advised by the
Initial Purchaser in connection with the offering of the Old Capital
Securities that the Initial Purchaser intended to make a market in the Old
Capital Securities. However, the Initial Purchaser is not obligated to make a
market in the Old Capital Securities or the New Capital Securities, and any
market-making activity with respect to the Old Capital Securities or the New
Capital Securities may be discontinued at any time without notice. In
addition, such market-making activity will be subject to the limits imposed by
the Securities Act and the Exchange Act and may be limited during the Exchange
Offer. Accordingly, no assurance can be given that an active public or other
market will develop for the Old Capital Securities or the New Capital
Securities or as to the liquidity of or the trading market for the Old Capital
Securities or the New Capital Securities. If an active public market does not
develop, the market price and liquidity of the Old Capital Securities or the
New Capital Securities may be adversely affected.
If a public trading market develops for the New Capital Securities, future
trading prices of such securities will depend on many factors, including,
among other things, prevailing interest rates, results of operations and the
market for similar securities. Depending on prevailing interest rates, the
market for similar securities and other factors, including the financial
condition of the Corporation, the New Capital Securities may trade at a
discount.
Notwithstanding the registration of the New Capital Securities in the
Exchange Offer, holders who are Affiliates may publicly offer for sale or
resell the New Capital Securities only in compliance with provisions of Rule
144 under the Securities Act.
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Each Participating Broker-Dealer that receives New Capital Securities for
its own account must acknowledge that it will deliver a prospectus in
connection with any resale of such New Capital Securities. See "Plan of
Distribution."
EXCHANGE OFFER PROCEDURES
Delivery of the New Capital Securities in exchange for Old Capital
Securities pursuant to the Exchange Offer will be made only after a timely
receipt by the Exchange Agent of such Old Capital Securities, a properly
completed and duly executed Letter of Transmittal or Agent's Message in lieu
thereof and all other required documents. Therefore, holders of the Old
Capital Securities desiring to tender such Old Capital Securities in exchange
for New Capital Securities should allow sufficient time to ensure timely
delivery. Neither the Corporation, the Issuer Trust, nor the Exchange Agent is
under any duty to give notification of defects or irregularities with respect
to the tenders of Old Capital Securities for exchange.
POSSIBLE TAX LAW CHANGES AFFECTING THE NEW CAPITAL SECURITIES
On February 6, 1997, the revenue portion of President Clinton's 1997 budget
proposal (the "Budget Proposal"), was released. If enacted, the Budget
Proposal would generally deny interest deductions for interest on an
instrument issued by a corporation that has a maximum term of more than 15
years and that is not shown as indebtedness on the separate balance sheet of
the issuer or, where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. The above described provision of the Budget Proposal is
proposed to be effective generally for instruments issued on or after the date
of first Congressional committee action. If this provision were to apply to
the New Junior Subordinated Debentures, the Corporation would be unable to
deduct interest on the New Junior Subordinated Debentures. Under current law,
the Corporation will be able to deduct interest on the New Junior Subordinated
Debentures. There can be no assurance, however, that current or future
legislative proposals or final legislation will not affect the ability of the
Corporation to deduct interest on the New Junior Subordinated Debentures. Such
a change could give rise to a Tax Event, which may permit the Corporation, if
certain conditions are met, to shorten the maturity of the Junior Subordinated
Debentures to a date not earlier than January 15, 2017 or to cause a
redemption of the New Capital Securities before January 15, 2007. See
"Description of New Securities--Description of New Junior Subordinated
Debentures--Redemption," "Description of New Securities--Description of New
Capital Securities--Redemption" and "Certain Federal Income Tax Consequences--
Possible Tax Law Changes."
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BANKERS TRUST NEW YORK CORPORATION
GENERAL
The Corporation is a bank holding company, incorporated under the laws of
the State of New York in 1965. At December 31, 1996, the Corporation had
consolidated total assets of $120.2 billion. The Corporation's principal
banking subsidiary is 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 Investment
Banking, Risk Management Services, Trading & Sales, Investment Management,
Client Processing Services, Australia/New Zealand, Asia, Latin America and
Corporate. 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 certain of the Corporation's 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 short-term borrowings and accounts payable.
The Corporation's principal executive offices are located at 130 Liberty
Street, New York, New York 10006 and its telephone number is (212) 250-2500.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.................... 1.44 1.71 1.28 1.08 1.21
Including Interest on Deposits.................... 1.28 1.48 1.21 1.06 1.16
</TABLE>
For purposes of computing these consolidated ratios, earnings represent
income 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.
CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.................... 1.41 1.69 1.27 1.05 1.19
Including Interest on Deposits.................... 1.26 1.47 1.20 1.04 1.14
</TABLE>
22
<PAGE>
For purposes of computing these consolidated ratios, earnings represent
income 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.
CONSOLIDATED RESULTS OF OPERATIONS
The Corporation earned $612 million, or $6.78 primary earnings per share,
for the full year 1996 compared with $215 million, or $2.03 primary earnings
per share, in 1995.
The Corporation earned $147 million, or $1.59 primary earnings per share, in
the fourth quarter of 1996 compared with $176 million, or $1.99 primary
earnings per share, in the third quarter of 1996 and $126 million, or $1.36
primary earnings per share, in the fourth quarter of 1995.
Details with respect to the foregoing are set forth in the Corporation's
Current Report on Form 8-K dated January 23, 1997, which is incorporated
herein by reference.
23
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA AND OTHER INFORMATION
The following selected consolidated financial data at and for each of the
two years ended December 31, 1995, have been derived from and are qualified in
their entirety by the detailed financial information and consolidated
financial statements of the Corporation included in its Annual Report on Form
10-K for the year ended December 31, 1995 ("Form 10-K") which is incorporated
herein by reference.
The following selected consolidated financial data at and for the year ended
December 31, 1996 are unaudited but, in the opinion of management, all
material adjustments necessary for a fair presentation of the Corporation's
results of operations for such period have been made. All such adjustments
were of a normal recurring nature.
<TABLE>
<CAPTION>
AT OR FOR THE
YEAR ENDED DECEMBER 31,
-------------------------
1994 1995 1996
------- -------- --------
($ IN MILLIONS, EXCEPT
PER SHARE DATA)
<S> <C> <C> <C>
Condensed Consolidated Statement of Income:
Interest revenue.................................... $ 5,030 $ 5,886 $ 6,366
Interest expense.................................... 3,858 5,069 5,400
------- -------- --------
Net interest revenue................................ 1,172 817 966
Provision for credit losses......................... 25 31 5
------- -------- --------
Net interest revenue after provision for credit
losses............................................. 1,147 786 961
Noninterest revenue................................. 2,473 2,423 3,199
Noninterest expenses................................ 2,751 2,898 3,288
------- -------- --------
Income before income taxes.......................... 869 311 872
Income taxes........................................ 254 96 260
------- -------- --------
Net income.......................................... $ 615 $ 215 $ 612
======= ======== ========
Net income applicable to common stock............... $ 587 $ 164 $ 561
======= ======== ========
Per Common Share Data:
Primary earnings per share.......................... $ 7.17 $ 2.03 $ 6.78
Fully diluted earnings per share.................... 7.17 2.02 6.74
Cash dividends declared............................. 3.70 4.00 4.00
--as a percentage of net income.................... 52% 198% 59%
Book value(1)....................................... $53.67 $50.58 $53.27
Profitability Ratios:
Return on average common stockholders' equity....... 13.5% 4.0% 12.9%
Return on average total assets...................... .59 .20 .51
Consolidated Balances, End of Period:
Trading assets...................................... $47,514 $ 47,893 $ 48,919
Loans............................................... 12,501 12,633 15,826
Total assets........................................ 97,016 104,002 120,235
Deposits............................................ 24,939 25,708 30,315
Securities sold under repurchase agreements......... 15,617 15,247 23,000
Other short-term borrowings......................... 18,222 15,761 19,395
Long-term debt not included in risk-based capital... 4,230 6,934 8,533
Long-term debt included in risk-based capital....... 2,225 2,360 2,576
Mandatorily redeemable capital securities of
subsidiary trusts holding solely junior
subordinated
deferrable interest debentures included in risk-
based capital...................................... -- -- 730
Common stockholders' equity......................... 4,309 4,119 4,424
Total stockholders' equity.......................... 4,704 4,984 5,234
Consolidated Capital Ratios, End of Period:
Common stockholders' equity to total assets......... 4.4% 4.0% 3.7%
Total stockholders' equity to total assets.......... 4.8 4.8 4.4
Risk-based capital ratios
Tier 1 Capital.................................... 9.1 8.5 8.7
Total Capital..................................... 14.8 13.9 13.7
Leverage Ratio...................................... 5.3 5.1 5.5
EMPLOYEES............................................ 14,529 14,069 15,228
</TABLE>
- -------
(1) This calculation includes the effect of the vested portion of common
shares issuable under deferred stock awards.
24
<PAGE>
BT CAPITAL TRUST B
The Issuer Trust is a statutory business trust created under Delaware law
pursuant to the filing of a certificate of trust with the Delaware Secretary
of State on February 28, 1997, which will be governed by the New Trust
Agreement among the Corporation, as Depositor, Wilmington Trust Company, as
Property Trustee and as Delaware Trustee, the Administrative Trustees named
therein, and the Holders of the New Trust Securities from time to time. The
Issuer Trust's business and affairs are conducted by its trustees: initially,
Wilmington Trust Company, as Property Trustee and Delaware Trustee, and the
Administrative Trustees. Two individuals who are employees or officers of or
affiliated with the holder of all the New Common Securities will act as the
Administrative Trustees with respect to the Issuer Trust. The Administrative
Trustees will be selected by the holder of all the New Common Securities. See
"Description of New Securities--Description of New Capital Securities--
Miscellaneous." The Issuer Trust exists for the exclusive purposes of (i)
issuing and selling the New Trust Securities, (ii) holding the New Junior
Subordinated Debentures and (iii) engaging in only those other activities
necessary or incidental thereto (such as registering the transfer of the New
Trust Securities). Accordingly, the New Junior Subordinated Debentures will be
the sole assets of the Issuer Trust, and payments under the New Junior
Subordinated Debentures will be the sole source of revenue of the Issuer
Trust. The Corporation will pay all fees and expenses related to the Exchange
Offer, except as provided in this Prospectus.
All of the New Common Securities will initially be owned by the Corporation.
The New Common Securities will rank pari passu, and payments will be made
thereon pro rata, with the New Capital Securities, except that upon the
occurrence and during the continuation of a Debenture Event of Default arising
as a result of any failure by the Corporation to pay any amounts in respect of
the New Junior Subordinated Debentures when due, the rights of the holders of
the New Common Securities to payment in respect of Distributions and payments
upon liquidation, redemption or otherwise will be subordinated to the rights
of the holders of the New Capital Securities. See "Description of New Capital
Securities--Subordination of New Common Securities." The Corporation will
acquire New Common Securities in an aggregate liquidation amount equal to
approximately 3% of the total capital of the Issuer Trust. The Issuer Trust
has a term of 31 years, but may terminate earlier as provided in the New Trust
Agreement. The principal executive office of the Issuer Trust is 130 Liberty
Street, New York, New York 10006, Attention: Office of the Secretary, and its
telephone number is (212) 250-2500.
USE OF PROCEEDS
Neither the Corporation nor the Issuer Trust will receive any proceeds from
the issuance of the New Capital Securities. In consideration for delivering
the New Capital Securities in exchange for Old Capital Securities as described
in this Prospectus, the Corporation will receive Old Capital Securities in
like Liquidation Amount. The Old Capital Securities surrendered in exchange
for the New Capital Securities and the Old Junior Subordinated Debentures held
by the Old Issuer Trust will be retired and cancelled.
The net proceeds to the Old Issuer Trust from the offering of the Old
Capital Securities was approximately $250 million. All of the proceeds from
the sale of the Old Capital Securities were invested by the Old Issuer Trust
in the Old Junior Subordinated Debentures. The net proceeds to the Corporation
from the sale of the Old Junior Subordinated Debentures have been and will be
used by the Corporation for general corporate purposes, which may include
investments in, or extensions of credit to, the Corporation's subsidiaries and
the repurchase and/or redemption of preferred stock of the Corporation.
Specific allocations of the proceeds to such purposes have not been made,
although management determined 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.
The Corporation is required by the Federal Reserve to maintain certain
levels of capital for bank regulatory purposes. On October 21, 1996, the
Federal Reserve announced that cumulative preferred securities having the
characteristics of the New Capital Securities could be included as Tier 1
Capital for bank holding companies. Such Tier 1 Capital treatment, together
with the Corporation's ability to deduct, for federal income tax purposes
interest payable on the New Junior Subordinated Debentures, will provide the
Corporation with a more cost-effective means of obtaining capital for bank
regulatory purposes than other Tier 1 Capital alternatives currently available
to it.
25
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Corporation and its subsidiaries as of December 31, 1996 and as adjusted to
give effect to the offering of the Old Capital Securities and of certain other
capital or preferred securities issued since December 31, 1996. The
capitalization of the Corporation has not been adjusted to give effect to any
other transactions that have occurred since December 31, 1996. The following
data should be read in conjunction with the consolidated financial statements
and notes thereto of the Corporation and its subsidiaries incorporated herein
by reference. See "Incorporation of Certain Documents by Reference." The
issuance of the New Capital Securities in the Exchange Offer will have no
effect on the capitalization of the Corporation.
<TABLE>
<CAPTION>
AT DECEMBER 31, 1996
------------------------
ACTUAL AS ADJUSTED
---------- ------------
($ IN MILLIONS)
<S> <C> <C>
Debt:
Short-term borrowings.............................. $ 42,395 $ 42,395
Long-term debt not included in risk-based capital.. 8,533 8,533
Long-term debt included in risk-based capital...... 2,576 2,576
Mandatorily redeemable capital securities of
subsidiary trusts holding solely junior
subordinated deferrable interest debentures
included in risk-based capital(1)................. 730 1,463
---------- ----------
Total debt....................................... $ 54,234 $ 54,967
Preferred stock of subsidiary(2)..................... 250 250
Stockholders' equity:
Preferred stock.................................... 810 810
Common stock ($1 par value; authorized shares:
300,000,000; issued shares: 83,678,973;
outstanding: 79,243,747).......................... 84 84
Capital surplus.................................... 1,339 1,339
Retained earnings.................................. 3,462 3,462
Common stock in treasury, at cost (4,435,226
shares)........................................... (372) (372)
Other stockholders' equity......................... (89) (89)
---------- ----------
Total stockholders' equity....................... 5,234 5,234
---------- ----------
Total capitalization............................. $ 59,718 $ 60,451
========== ==========
</TABLE>
- --------
(1) This item includes the New Capital Securities issued by the Issuer Trust.
As described herein, the sole assets of the Issuer Trust will be the New
Junior Subordinated Debentures, issued by the Corporation to the Issuer
Trust. The New Junior Subordinated Debentures held by the Issuer Trust
will bear interest at a rate equal to 7.90% per annum, and will mature on
January 15, 2027. The Corporation initially will own all of the New Common
Securities of the Issuer Trust. It is anticipated that the Issuer Trust
will not be subject to the reporting requirements of the Exchange Act. See
"Accounting Treatment".
(2) The four series of subsidiary preferred stock included in this item have
been called for redemption.
26
<PAGE>
ACCOUNTING TREATMENT
For financial reporting purposes, the Issuer Trust will be treated as a
subsidiary of the Corporation and, accordingly, the accounts of the Issuer
Trust will be included in the consolidated financial statements of the
Corporation. The New Capital Securities will be presented as a separate line
item in the consolidated balance sheets of the Corporation, entitled
"Mandatorily Redeemable Capital Securities of Subsidiary Trusts Holding Solely
Junior Subordinated Deferrable Interest Debentures Included in Risk-Based
Capital" and appropriate disclosures about the New Capital Securities, the New
Guarantee and the New Junior Subordinated Debentures will be included in the
notes to the consolidated financial statements. For financial reporting
purposes, the Corporation will record Distributions payable on the New Capital
Securities as an expense in the consolidated statements of income.
The Corporation has agreed that future financial reports of the Corporation
will: (i) present the capital or preferred securities issued by other issuer
trusts of the Corporation on the Corporation's balance sheet as a separate
line item entitled "Mandatorily Redeemable Capital Securities of Subsidiary
Trusts Holding Solely Junior Subordinated Deferrable Interest Debentures
Included in Risk-Based Capital"; (ii) include in a footnote to the financial
statements disclosure that the sole assets of such trusts are the junior
subordinated debentures held (specifying as to each trust the principal
amount, interest rate and maturity date of junior subordinated debentures
held); and (iii) if Staff Accounting Bulletin 53 treatment is sought, then
include, in an audited footnote to the financial statements, disclosure that
(a) the trusts are wholly owned, (b) the sole assets of the trusts are the
junior subordinated debentures (specifying as to each trust the principal
amount, interest rate and maturity date of the junior subordinated debentures
held), and (c) the obligations of the Corporation under the junior
subordinated debentures, the New Junior Subordinated Indenture or other
relevant indenture, the relevant Declarations of Trust, the relevant
guarantees and the relevant expense agreements, in the aggregate, constitute a
full and unconditional guarantee by the Corporation of the trusts' obligations
under the capital securities issued by each trust. See "Relationship Among the
New Capital Securities, the New Junior Subordinated Debentures, the New
Guarantee and the New Expense Agreement."
27
<PAGE>
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, the Corporation
and the Old Issuer Trust entered into the Registration Rights Agreement with
the Initial Purchaser, pursuant to which the Corporation agreed to file and to
use its reasonable best efforts to cause to be declared effective by the
Commission a registration statement with respect to the exchange of the Old
Capital Securities for capital securities of a trust substantially identical
to the Old Issuer Trust with terms substantially identical to the terms of the
Old Capital Securities. A copy of the Registration Rights Agreement has been
filed as an exhibit to the Registration Statement of which this Prospectus is
a part.
The Exchange Offer is being made to satisfy the contractual obligations of
the Corporation and the Old Issuer Trust under the Registration Rights
Agreement. The form and terms of the New Capital Securities are the same as
the form and terms of the Old Capital Securities, except that the New Capital
Securities (i) have been registered under the Securities Act and therefore
will not be subject to certain of the restrictions on transfer applicable to
the Old Capital Securities and (ii) will not provide for any increase in the
Distribution rate thereon. In that regard, the Old Capital Securities provide,
among other things, that, if the Exchange Offer is not consummated within 35
days of the date of this Prospectus, the Distribution rate borne by the Old
Capital Securities commencing on the 36th day following the date of this
Prospectus will increase by 0.25% per annum until the Exchange Offer is
consummated. Upon consummation of the Exchange Offer, holders of Old Capital
Securities will not be entitled to any increase in the Distribution rate
thereon or any further registration rights under the Registration Rights
Agreement, except under limited circumstances. See "Risk Factors--Consequences
of a Failure to Exchange Old Capital Securities" and "Description of Old
Securities."
The Exchange Offer is not being made to, nor will the Corporation accept
tenders for exchange from, holders of Old Capital Securities in any
jurisdiction in which the Exchange Offer or the acceptance thereof would not
be in compliance with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to the
Exchange Offer means any person in whose name the Old Capital Securities are
registered on the books of the Old Issuer Trust or any other person who has
obtained a properly completed bond power from the registered holder, or any
person whose Old Capital Securities are held of record by DTC who desires to
deliver such Old Capital Securities by book-entry transfer at DTC.
Pursuant to the Exchange Offer the New Capital Securities will have the
benefit of the New Guarantee, which will be substantially identical to the Old
Guarantee and the Issuer Trust will hold New Junior Subordinated Debentures,
in an aggregate principal amount equal to the aggregate Liquidation Amount of
the New Trust Securities of the Issuer Trust issued pursuant to the Exchange
Offer, which will be substantially identical to the Old Junior Subordinated
Debentures. The New Guarantee and the New Junior Subordinated Debentures have
also been registered under the Securities Act.
TERMS OF EXCHANGE
The Corporation hereby offers, upon the terms and subject to the conditions
set forth in this Prospectus and in the accompanying Letter of Transmittal, to
exchange up to $250,000,000 aggregate Liquidation Amount of New Capital
Securities for a like aggregate Liquidation Amount of Old Capital Securities
properly tendered on or prior to the Expiration Date and not properly
withdrawn in accordance with the procedures described below. The Corporation
will deliver, promptly after the Expiration Date, an aggregate Liquidation
Amount of up to $250,000,000 of New Capital Securities in exchange for a like
Liquidation Amount of outstanding Old Capital Securities tendered and accepted
in connection with the Exchange Offer. Holders may tender their Old Capital
Securities in whole or in part in a Liquidation Amount of not less than
$100,000 or any integral multiple of $1,000 in excess thereof provided that if
any Old Capital Securities are tendered in exchange for part, the untendered
Liquidation Amount must be $100,000 or any integral multiple of $1,000 in
excess thereof.
28
<PAGE>
The Exchange Offer is not conditioned upon any minimum Liquidation Amount of
Old Capital Securities being tendered. As of the date of this Prospectus, Old
Capital Securities having an aggregate Liquidation Amount of $250,000,000 are
outstanding.
Holders of Old Capital Securities do not have any appraisal or dissenters'
rights in connection with the Exchange Offer. Old Capital Securities that are
not tendered for or are tendered but not accepted in connection with the
Exchange Offer will remain outstanding and be entitled to the benefits of the
Old Trust Agreement, but will not be entitled to any further registration
rights under the Registration Rights Agreement, except under limited
circumstances. See "Risk Factors--Consequences of a Failure to Exchange Old
Capital Securities" and "Description of Old Securities."
If any tendered Old Capital Securities are not accepted for exchange because
of an invalid tender, the occurrence of certain other events set forth herein
or otherwise, certificates for any such unaccepted Old Capital Securities will
be returned, without expense, to the tendering holder thereof promptly after
the Expiration Date.
Holders who tender Old Capital Securities in connection with the Exchange
Offer will not be required to pay brokerage commissions or fees or, subject to
the instructions in the Letter of Transmittal, transfer taxes with respect to
the exchange of Old Capital Securities in connection with the Exchange Offer.
The Corporation will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the Exchange Offer. See
"--Fees and Expenses."
NEITHER THE BOARD OF DIRECTORS NOR ANY OFFICER OR EMPLOYEE OF THE
CORPORATION NOR ANY ISSUER TRUSTEE OF THE ISSUER TRUST OR THE OLD ISSUER TRUST
MAKES ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL SECURITIES AS TO WHETHER TO
TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD CAPITAL
SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN
AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL SECURITIES
MUST MAKE THEIR OWN DECISIONS WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER
AND, IF SO, THE AGGREGATE AMOUNT OF OLD CAPITAL SECURITIES TO TENDER AFTER
READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH
THEIR ADVISERS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION AND
REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on ,
1997, unless the Exchange Offer is extended by the Corporation (in which case
the term "Expiration Date" will mean the latest date and time to which the
Exchange Offer is extended).
The Corporation expressly reserves the right in its sole discretion, subject
to applicable law, at any time and from time to time, (i) to delay the
acceptance of the Old Capital Securities for exchange, (ii) to terminate the
Exchange Offer (whether or not any Old Capital Securities have theretofore
been accepted for exchange) if the Corporation determines, in its sole
discretion, that any of the events or conditions referred to under "--
Conditions to the Exchange Offer" have occurred or exist or have not been
satisfied, (iii) to extend the Expiration Date of the Exchange Offer and
retain all Old Capital Securities tendered pursuant to the Exchange Offer,
subject, however, to the right of holders of Old Capital Securities to
withdraw their tendered Old Capital Securities as described under "--
Withdrawal Rights," and (iv) to waive any condition or otherwise amend the
terms of the Exchange Offer in any respect. If the Exchange Offer is amended
in a manner determined by the Corporation to constitute a material change, or
if the Corporation waives a material condition of the Exchange Offer, the
Corporation will promptly disclose such amendment by means of an amended or
supplemented Prospectus that will be distributed to the registered holders of
the Old Capital Securities, and the Corporation will extend the Exchange Offer
to the extent required by Rule 14e-1 under the Exchange Act.
29
<PAGE>
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice thereof to the Exchange Agent and
by a public announcement thereof, and such announcement in the case of an
extension will be made no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date. Without
limiting the manner in which the Corporation may choose to make any public
announcement and subject to applicable law, the Corporation will have no
obligation to publish, advertise or otherwise communicate any such public
announcement other than by issuing a release to an appropriate news agency.
ACCEPTANCE FOR EXCHANGE AND DELIVERY OF NEW CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, the
Corporation will exchange, and will deliver to the Exchange Agent, New Capital
Securities for Old Capital Securities validly tendered and not withdrawn
(pursuant to the withdrawal rights described under "--Withdrawal Rights")
promptly after the Expiration Date.
In all cases, delivery of New Capital Securities in exchange for Old Capital
Securities tendered and accepted for exchange pursuant to the Exchange Offer
will be made only after timely receipt by the Exchange Agent of (i) Old
Capital Securities or a book-entry confirmation of a book-entry transfer of
Old Capital Securities into the Exchange Agent's account at DTC, including an
Agent's Message if the tendering holder has not delivered a Letter of
Transmittal, (ii) the Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, with any required signature guarantees or (in the
case of a book-entry transfer) an Agent's Message in lieu of the Letter of
Transmittal, and (iii) any other documents required by the Letter of
Transmittal.
The term "book-entry confirmation" means a timely confirmation of a book-
entry transfer of Old Capital Securities into the Exchange Agent's account at
DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express acknowledgement
from the tendering participant, which acknowledgement states that such
participant has received and agrees to be bound by the Letter of Transmittal
and that the Corporation may enforce such Letter of Transmittal against such
participant.
Subject to the terms and conditions of the Exchange Offer, the Corporation
will be deemed to have accepted for exchange, and thereby exchanged, Old
Capital Securities validly tendered and not withdrawn as, if and when the
Issuer Trust gives oral or written notice to the Exchange Agent of the
Corporation's acceptance of such Old Capital Securities for exchange pursuant
to the Exchange Offer. The Exchange Agent will act as agent for the
Corporation for the purpose of receiving tenders of Old Capital Securities,
Letters of Transmittal and related documents, and as agent for tendering
holders for the purpose of receiving Old Capital Securities, Letters of
Transmittal and related documents and transmitting New Capital Securities to
validly tendering holders. Such exchange will be made promptly after the
Expiration Date. If for any reason whatsoever, acceptance for exchange or the
exchange of any Old Capital Securities tendered pursuant to the Exchange Offer
is delayed (whether before or after the Corporation's acceptance for exchange
of Old Capital Securities) or the Corporation extends the Exchange Offer or is
unable to accept for exchange or exchange Old Capital Securities tendered
pursuant to the Exchange Offer, then, without prejudice to the Corporation's
rights set forth herein, the Exchange Agent may, nevertheless, on behalf of
the Corporation and subject to Rule 14e-1(c) under the Exchange Act, retain
tendered Old Capital Securities and such Old Capital Securities may not be
withdrawn except to the extent tendering holders are entitled to withdrawal
rights as described under "--Withdrawal Rights."
Pursuant to the Letter of Transmittal or Agent's Message in lieu thereof, a
holder of Old Capital Securities will warrant and agree in the Letter of
Transmittal that it has full power and authority to tender, exchange, sell,
assign and transfer Old Capital Securities, that the Corporation will acquire
good, marketable and unencumbered title to the tendered Old Capital
Securities, free and clear of all liens, restrictions, charges and
encumbrances, and the Old Capital Securities tendered for exchange are not
subject to any adverse claims or proxies. The holder
30
<PAGE>
also will warrant and agree that it will, upon request, execute and deliver
any additional documents deemed by the Corporation, the Issuer Trust, the Old
Issuer Trust or the Exchange Agent to be necessary or desirable to complete
the exchange, sale, assignment, and transfer of the Old Capital Securities
tendered pursuant to the Exchange Offer.
PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
Valid Tender
Except as set forth below, in order for Old Capital Securities to be validly
tendered pursuant to the Exchange Offer, a properly completed and duly
executed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, or (in the case of a book-entry tender) an Agent's
Message in lieu of the Letter of Transmittal, and any other required
documents, must be received by the Exchange Agent at its address set forth
under "--Exchange Agent," and either (i) tendered Old Capital Securities must
be received by the Exchange Agent, or (ii) such Old Capital Securities must be
tendered pursuant to the procedures for book-entry transfer set forth below
and a book-entry confirmation, including an Agent's Message if the tendering
holder has not delivered a Letter of Transmittal, must be received by the
Exchange Agent, in each case on or prior to the Expiration Date, or (iii) the
guaranteed delivery procedures set forth below must be complied with.
If less than all of the Old Capital Securities are tendered, a tendering
holder should fill in the amount of Old Capital Securities being tendered in
the appropriate box on the Letter of Transmittal and the untendered
Liquidation Amount must be $100,000 or any integral of $1,000 in excess
thereof. The entire amount of Old Capital Securities delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Book-Entry Transfer
The Exchange Agent will establish an account with respect to the Old Capital
Securities at DTC for purposes of the Exchange Offer within two business days
after the date of this Prospectus. Any financial institution that is a
participant in DTC's book-entry transfer facility system may make a book-entry
delivery of the Old Capital Securities by causing DTC to transfer such Old
Capital Securities into the Exchange Agent's account at DTC in accordance with
DTC's procedures for transfers. However, although delivery of Old Capital
Securities may be effected through book-entry transfer into the Exchange
Agent's account at DTC, the Letter of Transmittal (or a facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
or an Agent's Message in lieu of the Letter of Transmittal, and any other
required documents, must in any case be delivered to and received by the
Exchange Agent at its address set forth under "--Exchange Agent" on or prior
to the Expiration Date, or the guaranteed delivery procedure set forth below
must be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
Signature Guarantees
Certificates for the Old Capital Securities need not be endorsed and
signature guarantees on the Letter of Transmittal are unnecessary unless (i) a
certificate for the Old Capital Securities is registered in a name other than
that of the person surrendering the certificate or (ii) such registered holder
completes the box entitled "Special Issuance Instructions" or "Special
Delivery Instructions" in the Letter of Transmittal. In the case of (i) or
(ii) above, such certificates for Old Capital Securities must be duly endorsed
or accompanied by a properly
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executed bond power, with the endorsement or signature on the bond power and
on the Letter of Transmittal guaranteed by a firm or other entity identified
in Rule 17Ad-15 under the Exchange Act as an "eligible guarantor institution,"
including (as such terms are defined therein): (i) a bank; (ii) a broker,
dealer, municipal securities broker or dealer or government securities broker
or dealer; (iii) a credit union; (iv) a national securities exchange,
registered securities association or clearing agency; or (v) a savings
association that is a participant in a securities transfer association (an
"Eligible Institution"), unless surrendered on behalf of such Eligible
Institution. See Instruction 1 to the Letter of Transmittal.
Guaranteed Delivery
If a holder desires to tender Old Capital Securities pursuant to the
Exchange Offer and the certificates for such Old Capital Securities are not
immediately available or time will not permit all required documents to reach
the Exchange Agent on or before the Expiration Date, or the procedures for
book-entry transfer cannot be completed on a timely basis, such Old Capital
Securities may nevertheless be tendered, provided that all of the following
guaranteed delivery procedures are complied with:
(i) such tenders are made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form accompanying the Letter of Transmittal,
is received by the Exchange Agent, as provided below, on or prior to the
Expiration Date; and
(iii) the certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with
a properly completed and duly executed Letter of Transmittal (or a
facsimile thereof or Agent's Message in lieu thereof), with any required
signature guarantees and any other documents required by the Letter of
Transmittal, are received by the Exchange Agent within three New York Stock
Exchange, Inc. trading days after the date of execution of such Notice of
Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or transmitted
by facsimile or mail to the Exchange Agent and must include a guarantee by an
Eligible Institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of New Capital
Securities in exchange for Old Capital Securities tendered and accepted for
exchange pursuant to the Exchange Offer will in all cases be made only after
timely receipt by the Exchange Agent of Old Capital Securities, or of a book-
entry confirmation with respect to such Old Capital Securities, and a properly
completed and duly executed Letter of Transmittal (or a facsimile thereof or
Agent's Message in lieu thereof), together with any required signature
guarantees and any other documents required by the Letter of Transmittal.
Accordingly, the delivery of New Capital Securities might not be made to all
tendering holders at the same time, and will depend upon when Old Capital
Securities, book-entry confirmations with respect to Old Capital Securities
and other required documents are received by the Exchange Agent.
The Corporation's acceptance for exchange of Old Capital Securities tendered
pursuant to any of the procedures described above will constitute a binding
agreement between the tendering holder and the Corporation upon the terms and
subject to the conditions of the Exchange Offer.
Determination of Validity
All questions as to the form of documents, validity, eligibility (including
time of receipt) and acceptance for exchange of any tendered Old Capital
Securities will be determined by the Corporation,in its sole discretion, whose
determination will be final and binding on all parties. The Corporation
reserves the absolute right, in its sole discretion, to reject any and all
tenders it determines not to be in proper form or the acceptance of which, or
exchange for, may, in the view of counsel to the Corporation, be unlawful. The
Corporation also reserves the absolute right, subject to applicable law, to
waive any of the conditions of the Exchange Offer as set forth under "--
Conditions to the Exchange Offer" or any condition or irregularity in any
tender of Old Capital Securities of any particular holder whether or not
similar conditions or irregularities are waived in the case of other holders.
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The Corporation's interpretation of the terms and conditions of the Exchange
Offer (including the Letter of Transmittal and the instructions thereto) will
be final and binding. No tender of Old Capital Securities will be deemed to
have been validly made until all irregularities with respect to such tender
have been cured or waived. Neither the Corporation, the Issuer Trust or the
Exchange Agent, nor any affiliates or assigns of the Corporation, the Issuer
Trust or the Exchange Agent, nor any other person shall be under any duty to
give any notification of any irregularities in tenders or incur any liability
for failure to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney, or
any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by the
Corporation, proper evidence satisfactory to the Corporation, in its sole
discretion, of such person's authority to so act must be submitted.
A beneficial owner of Old Capital Securities that are held by or registered
in the name of a broker, dealer, commercial bank, trust company or other
nominee or custodian is urged to contact such entity promptly if such
beneficial holder wishes to participate in the Exchange Offer.
RESALES OF NEW CAPITAL SECURITIES
The Corporation is making the Exchange Offer for the Old Capital Securities
in reliance on the position of the staff of the Division of Corporation
Finance of the Commission as set forth in certain interpretive letters
addressed to third parties in other transactions. However, neither the
Corporation nor the Issuer Trust sought its own interpretive letter, and there
can be no assurance that the staff of the Division of Corporation Finance of
the Commission would make a similar determination with respect to the Exchange
Offer as it has in such interpretive letters to third parties. Based on these
interpretations by the staff of the Division of Corporation Finance, and
subject to the two immediately following sentences, the Corporation believes
that New Capital Securities issued pursuant to this Exchange Offer in exchange
for Old Capital Securities may be offered for resale, resold and otherwise
transferred by a holder thereof (other than a holder who is a broker-dealer)
without further compliance with the registration and prospectus delivery
requirements of the Securities Act, provided that such New Capital Securities
are acquired in the ordinary course of such holder's business and that such
holder is not participating, and has no arrangement or understanding with any
person to participate, in a distribution (within the meaning of the Securities
Act) of such New Capital Securities. However, any holder of Old Capital
Securities who is an Affiliate or who intends to participate in the Exchange
Offer for the purpose of distributing New Capital Securities, or any broker-
dealer who purchased Old Capital Securities from the Old Issuer Trust to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act, (i) will not be able to rely on the interpretations of the
staff of the Division of Corporation Finance of the Commission set forth in
the above-mentioned interpretive letters, (ii) will not be permitted or
entitled to tender such Old Capital Securities in the Exchange Offer, and
(iii) must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any sale or other transfer of such
Old Capital Securities unless such sale is made pursuant to an exemption from
such requirements. In addition, as described below, Participating Broker-
Dealers must deliver a prospectus meeting the requirements of the Securities
Act in connection with any resales of New Capital Securities.
Each holder of Old Capital Securities who wishes to exchange Old Capital
Securities for New Capital Securities in the Exchange Offer will be required
to represent that (i) it is not an Affiliate, (ii) any New Capital Securities
to be received by it are being acquired in the ordinary course of its
business, (iii) it has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of
such New Capital Securities, and (iv) if such holder is not a broker-dealer,
such holder is not engaged in, and does not intend to engage in, a
distribution (within the meaning of the Securities Act) of such New Capital
Securities. The Letter of Transmittal contains the foregoing representations.
In addition, the Corporation may
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require such holder, as a condition to such holder's eligibility to
participate in the Exchange Offer, to furnish to the Corporation (or an agent
thereof) in writing information as to the number of "beneficial owners"
(within the meaning of Rule 13d-3 under the Exchange Act) on behalf of whom
such holder holds the Old Capital Securities to be exchanged in the Exchange
Offer. Each Participating Broker-Dealer will be deemed to have acknowledged by
execution of the Letter of Transmittal or delivery of an Agent's Message that
it acquired the Old Capital Securities for its own account as the result of
market-making activities or other trading activities and must agree that it
will deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such New Capital Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Participating Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. Based on the position
taken by the staff of the Division of Corporation Finance of the Commission in
the interpretive letters referred to above, the Corporation believes that
Participating Broker-Dealers may fulfill their prospectus delivery
requirements with respect to the New Capital Securities received upon exchange
of such Old Capital Securities (other than Old Capital Securities that
represent an unsold allotment from the original sale of the Old Capital
Securities) with a prospectus meeting the requirements of the Securities Act,
which may be the prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with respect to the resale
of such New Capital Securities. Accordingly, this Prospectus may be used by a
Participating Broker-Dealer during the period referred to below in connection
with resales of New Capital Securities received in exchange for Old Capital
Securities where such Old Capital Securities were acquired by such
Participating Broker-Dealer for its own account as a result of market-making
or other trading activities. Subject to certain provisions set forth in the
Registration Rights Agreement, the Corporation and the Issuer Trust have
agreed that this Prospectus may be used by a Participating Broker-Dealer in
connection with resales of such New Capital Securities for a period ending 90
days after the Expiration Date or, if earlier, when all such New Capital
Securities have been disposed of by such Participating Broker-Dealer. See
"Plan of Distribution." Any person, including any Participating Broker-Dealer,
who is an Affiliate may not rely on such interpretive letters and must comply
with the registration and prospectus delivery requirements of the Securities
Act in connection with any resale transaction.
In that regard, each Participating Broker-Dealer who surrenders Old Capital
Securities pursuant to the Exchange Offer will be deemed to have agreed, by
execution of the Letter of Transmittal or delivery of an Agent's Message in
lieu thereof, that, upon receipt of notice from the Corporation or the Issuer
Trust of the occurrence of any event or the discovery of any fact that makes
any statement contained or incorporated by reference in this Prospectus untrue
in any material respect or that causes this Prospectus to omit to state a
material fact necessary in order to make the statements contained or
incorporated by reference herein, in light of the circumstances under which
they were made, not misleading or of the occurrence of certain other events
specified in the Registration Rights Agreement, such Participating Broker-
Dealer will suspend the sale of New Securities pursuant to this Prospectus
until the Corporation or the Issuer Trust has amended or supplemented this
Prospectus to correct such misstatement or omission and has furnished copies
of this Prospectus, as so amended or supplemented, to such Participating
Broker-Dealer, or the Corporation or the Issuer Trust has given notice that
the sale of the New Securities may be resumed, as the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Old Capital Securities may
be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective a written, telegraphic, telex or
facsimile transmission of such notice of withdrawal must be timely received by
the Exchange Agent at its address set forth under "--Exchange Agent" on or
prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Old Capital Securities to be withdrawn,
the aggregate principal amount of Old Capital Securities to be withdrawn, and
(if certificates for such Old Capital Securities have been tendered) the name
of the registered holder of the Old Capital Securities as set forth on the Old
Capital Securities, if different from that of the person who tendered such Old
Capital Securities. If Old Capital Securities have been delivered or otherwise
identified to the Exchange Agent, then prior to the physical release of such
Old Capital Securities, the tendering holder must submit the certificate
numbers shown on the particular Old Capital Securities to be
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withdrawn and the signature on the notice of withdrawal must be guaranteed by
an Eligible Institution, except in the case of Old Capital Securities tendered
for the account of an Eligible Institution. If Old Capital Securities have
been tendered pursuant to the procedures for book-entry transfer set forth in
"--Procedures for Tendering Old Capital Securities," the notice of withdrawal
must specify the name and number of the account at DTC to be credited with the
withdrawal of Old Capital Securities, in which case a notice of withdrawal
will be effective if delivered to the Exchange Agent by written, telegraphic,
telex or facsimile transmission. Withdrawals of tenders of Old Capital
Securities may not be rescinded. Old Capital Securities properly withdrawn
will not be deemed validly tendered for purposes of the Exchange Offer, but
may be retendered at any subsequent time on or prior to the Expiration Date by
following any of the procedures described above under "--Procedures for
Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Corporation, in
its sole discretion, whose determination shall be final and binding on all
parties. Neither the Corporation, the Issuer Trust or the Exchange Agent, any
affiliates or assigns of the Corporation, the Issuer Trust or the Exchange
Agent, nor any other person shall be under any duty to give any notification
of any irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification. Any Old Capital Securities that have
been tendered but which are withdrawn will be returned to the holder thereof
promptly after withdrawal.
DISTRIBUTIONS ON THE NEW CAPITAL SECURITIES AND OLD CAPITAL SECURITIES
Holders of Old Capital Securities whose Old Capital Securities are accepted
for exchange will not receive accumulated distributions on such Old Capital
Securities for any period from and after the last distribution date with
respect to such Old Capital Securities prior to the original issue date of the
New Capital Securities or, if no such distributions have been made, will not
receive any accumulated distributions on such Old Capital Securities, and will
be deemed to have waived the right to receive any distributions on such Old
Capital Securities accumulated from and after such distribution date or, if no
such distributions have been made, from and after January 16, 1997.
CONDITIONS TO EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any extension
of the Exchange Offer, the Corporation will not be required to accept for
exchange, or to exchange, any Old Capital Securities for any New Capital
Securities, and, as described below, may terminate the Exchange Offer (whether
or not any Old Capital Securities have theretofore been accepted for exchange)
or may waive any conditions to or amend the Exchange Offer, if any of the
following conditions has occurred or exists or has not been satisfied:
(a) there occurs a change in the existing interpretations by the staff of
the Commission that permit the New Capital Securities issued pursuant to
the Exchange Offer in exchange for Old Capital Securities to be offered for
resale, resold and otherwise transferred by holders thereof (other than
holders that are broker-dealers or Affiliates) without compliance with the
registration and prospectus delivery provisions of the Securities Act,
provided that such New Capital Securities are acquired in the ordinary
course of such holders' business and such holders have no arrangement or
understanding with any person to participate in the distributions of such
New Capital Securities;
(b) any action or proceeding has been instituted or threatened in any
court or by or before any governmental agency or body with respect to the
Exchange Offer which, in the Corporation's judgment, would reasonably be
expected to impair the ability of the Corporation to proceed with the
Exchange Offer;
(c) any law, statute, rule or regulation has been adopted or enacted
which, in the Corporation's judgment, would reasonably be expected to
impair the ability of the Corporation to proceed with the Exchange Offer;
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(d) a banking moratorium has been declared by United States federal or
New York State authorities which, in the Corporation's judgment, would
reasonably be expected to impair the ability of the Corporation to proceed
with the Exchange Offer;
(e) trading on the New York Stock Exchange, Inc. or generally in the
United States over-the-counter market has been suspended by order of the
Commission or any other governmental authority which, in the Corporation's
judgment, would reasonably be expected to impair the ability of the
Corporation to proceed with the Exchange Offer;
(f) a stop order has been issued by the Commission or any state
securities authority suspending the effectiveness of the Registration
Statement or proceedings have been initiated or, to the knowledge of the
Corporation, threatened for that purpose any governmental approval has not
been obtained, which approval the Corporation, in its sole discretion, deem
necessary for the consummation of the Exchange Offer as contemplated
hereby;
(g) any change, or any development involving a prospective change, in the
business or financial affairs of the Issuer Trust or the Corporation or any
of the Corporation's subsidiaries has occurred which, in the judgment of
the Corporation might materially impair the ability of the Corporation to
proceed with the Exchange Offer; or
(h) the Corporation or the Issuer Trust has received an opinion of
counsel experienced in such matters to the effect that, as a result of the
consummation of the Exchange Offer, there is more than an insubstantial
risk that (a) the Issuer Trust would be subject to United States federal
income tax with respect to income received or accrued on the New Junior
Subordinated Debentures, (b) interest payable by the Corporation on the New
Junior Subordinated Debentures would not be deductible by the Corporation,
in whole or in part, for United States federal income tax purposes, or (c)
the Issuer Trust would be subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
If the Corporation determines in its sole discretion that any of the
foregoing events or conditions has occurred or exists or has not been
satisfied, the Corporation may, subject to applicable law, terminate the
Exchange Offer (whether or not any Old Capital Securities have theretofore
been accepted for exchange) or may waive any such condition or otherwise amend
the terms of the Exchange Offer in any respect. If such waiver or amendment
constitutes a material change to the Exchange Offer, the Corporation will
promptly disclose such waiver by means of an amended or supplemented
Prospectus that will be distributed to the registered holders of the Old
Capital Securities, and the Corporation will extend the Exchange Offer to the
extent required by Rule 14e-1 under the Exchange Act.
EXCHANGE AGENT
Wilmington Trust Company has been appointed as Exchange Agent for the
Exchange Offer. Delivery of the Letters of Transmittal and any other required
documents, questions, requests for assistance, and requests for additional
copies of this Prospectus or of the Letter of Transmittal should be directed
to the Exchange Agent as follows:
By Mail/Overnight Delivery: By Hand:
Wilmington Trust Company Wilmington Trust Company
1100 North Market Square 1100 North Market Street, 1st
Wilmington, Delaware 19890-0001 Floor
Wilmington, Delaware 19890
Attention: Jill Rylee Attention: Corporate Trust
Operations
Telephone: (302) 651-8869
Facsimile: (302) 651-1079
Delivery to any place other than the above address or facsimile number will
not constitute a valid delivery.
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FEES AND EXPENSES
The Corporation has agreed to pay the Exchange Agent reasonable and
customary fees for its services and will reimburse it for its reasonable out-
of-pocket expenses in connection therewith. The Corporation will also pay
brokerage houses and other custodians, nominees and fiduciaries the reasonable
out-of-pocket expenses incurred by them in forwarding copies of this
Prospectus and related documents to the beneficial owners of Old Capital
Securities, and in handling or tendering for their customers.
Holders who tender their Old Capital Securities for exchange will not be
obligated to pay any transfer taxes in connection therewith. If, however, New
Capital Securities are to be delivered to, or are to be issued in the name of,
any person other than the registered holder of the Old Capital Securities
tendered, or if a transfer tax is imposed for any reason other than the
exchange of Old Capital Securities in connection with the Exchange Offer, then
the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes
will be billed directly to such tendering holder.
Neither the Corporation nor the Issuer Trust will make any payment to
brokers, dealers or others soliciting acceptances of the Exchange Offer.
DESCRIPTION OF NEW SECURITIES
DESCRIPTION OF NEW CAPITAL SECURITIES
Pursuant to the terms of the New Trust Agreement, the Issuer Trustees on
behalf of the Issuer Trust will issue the New Capital Securities and the New
Common Securities. The New Capital Securities will represent preferred
undivided beneficial interests in the assets of the Issuer Trust and the
holders thereof will be entitled to a preference in certain circumstances over
the New Common Securities with respect to Distributions and amounts payable on
redemption or liquidation. See "--Subordination of New Common Securities." The
New Trust Agreement will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Wilmington
Trust Company, as Property Trustee, will act as trustee for the purposes of
compliance with the Trust Indenture Act. This summary of certain provisions of
the New Capital Securities and the New Trust Agreement does not purport to be
complete and is subject to, and qualified in its entirety by reference to, all
the provisions of the New Trust Agreement, including the definitions therein
of certain terms. Wherever particular defined terms of the New Trust Agreement
are referred to herein, such defined terms are incorporated herein by
reference. A copy of the form of the New Trust Agreement is available upon
request from the Property Trustee.
General
The New Capital Securities will be limited to $250,000,000 aggregate
Liquidation Amount outstanding. The New Capital Securities will rank pari
passu, and payments will be made thereon pro rata, with the New Common
Securities except as described under "--Subordination of New Common
Securities." Legal title to the New Junior Subordinated Debentures will be
held by the Property Trustee in trust for the benefit of the holders of the
New Capital Securities and New Common Securities. The New Guarantee will be a
guarantee on a subordinated basis with respect to the New Capital Securities
but will not guarantee payment of Distributions or amounts payable on
redemption or liquidation of such New Capital Securities when the Issuer Trust
does not have funds on hand available to make such payments. See "--
Description of New Guarantee."
Distributions
The New Capital Securities represent preferred undivided beneficial
interests in the assets of the Issuer Trust, and Distributions on each New
Capital Security will be payable at the annual rate of 7.90% of the stated
liquidation amount (the "Liquidation Amount") of $1,000, payable semi-annually
in arrears on January 15 and July 15 of each year (each a "Distribution
Date"), commencing on the first such date following the date of original
issuance of the New Capital Securities. Such Distributions will be paid to the
holders of the New Capital
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Securities at the close of business on the fifteenth day (whether or not a
Business Day (as defined below)) next preceding the relevant Distribution
Date. Distributions on the New Capital Securities will be cumulative.
Distributions will accumulate from the most recent distribution date of the
Old Capital Securities surrendered in exchange for such New Capital Securities
or, if no distributions have been paid on such Old Capital Securities, from
January 16, 1997. The amount of Distributions payable for any period less than
a full Distribution period will be computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial month in such
period. Distributions payable for each full Distribution period will be
computed by dividing the rate per annum by two. If any date on which
Distributions are payable on the New Capital Securities is not a Business Day,
then payment of the Distributions payable on such date will be made on the
next succeeding day that is a Business Day (without any additional
Distributions or other payment in respect of any such delay), with the same
force and effect as if made on the date such payment was originally payable.
So long as no Debenture Event of Default has occurred and is continuing, the
Corporation has the right under the New Junior Subordinated Indenture to defer
the payment of interest on the New Junior Subordinated Debentures at any time
or from time to time for a period not exceeding 10 consecutive semi-annual
periods with respect to each Extension Period, provided that no Extension
Period may extend beyond the Stated Maturity of the New Junior Subordinated
Debentures as in effect on the date on which the Corporation elects to effect
such deferral. As a consequence of any such election, semi-annual
Distributions on the New Capital Securities will be deferred by the Issuer
Trust during any such Extension Period. Distributions to which holders of the
New Capital Securities are entitled will accumulate additional Distributions
thereon at the rate per annum of 7.90% thereof, compounded semi-annually from
the relevant payment date for such Distributions, computed on the basis of a
360-day year of twelve 30-day months and the actual days elapsed in a partial
month in such period. Additional Distributions payable for each full
Distribution period will be computed by dividing the rate per annum by two.
The term "Distributions" as used herein shall include any such additional
Distributions. During any such Extension Period, the Corporation may not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Corporation's
capital stock or (ii) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the
Corporation that rank pari passu in all respects with or junior in interest to
the New Junior Subordinated Debentures (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the
Corporation in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of
capital stock of the Corporation (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of an exchange or conversion of any class or series of the
Corporation's capital stock (or any capital stock of a subsidiary of the
Corporation) for any class or series of the Corporation's capital stock or of
any class or series of the Corporation's indebtedness for any class or series
of the Corporation's capital stock, (c) the purchase of fractional interests
in shares of the Corporation's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options
or other rights where the dividend stock or the stock issuable upon exercise
of such warrants, options or other rights is the same stock as that on which
the dividend is being paid or ranks pari passu with or junior to such stock).
Prior to the termination of any such Extension Period, the Corporation may
further defer the payment of interest, provided that no Extension Period may
exceed 10 consecutive semi-annual periods or extend beyond the Stated Maturity
of the New Junior Subordinated Debentures as in effect on the date on which
the Corporation elects to effect such deferral. Upon the termination of any
such Extension Period and the payment of all amounts then due, the Corporation
may elect to begin a new Extension Period. There is no limitation on the
number of times that the Corporation may elect to begin an Extension Period.
See "--Description of New Junior Subordinated Debentures--Option to Extend
Interest Payment Period" and "Certain Federal Income Tax Consequences--
Interest Income and Original Issue Discount."
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The Corporation has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the New
Junior Subordinated Debentures.
The revenue of the Issuer Trust available for distribution to holders of the
New Capital Securities will be limited to payments under the New Junior
Subordinated Debentures held by the Issuer Trust. See "--Description of New
Junior Subordinated Debentures." If the Corporation does not make payments on
the New Junior Subordinated Debentures, the Issuer Trust will not have funds
available to pay Distributions or other amounts payable on the New Capital
Securities. The payment of Distributions and other amounts payable on the New
Capital Securities (if and to the extent the Issuer Trust has funds legally
available therefor) is guaranteed by the Corporation on a limited basis as set
forth herein under "--Description of New Guarantee."
Redemption
Upon the repayment or redemption, in whole or in part, of the New Junior
Subordinated Debentures, whether at maturity or upon earlier redemption as
provided in the New Junior Subordinated Indenture, the proceeds from such
repayment or redemption shall be applied by the Property Trustee to redeem a
Like Amount of the New Trust Securities, upon not less than 30 nor more than
60 days' notice, at a redemption price (the "Redemption Price") determined as
set forth below. If less than all of the New Junior Subordinated Debentures
are to be repaid or redeemed on a Redemption Date (as defined below), then the
proceeds from such repayment or redemption shall be allocated to the
redemption pro rata of the New Capital Securities and the New Common
Securities. The amount of premium, if any, paid by the Corporation upon the
redemption of all or any part of the New Junior Subordinated Debentures to be
repaid or redeemed on any date will be allocated to the redemption pro rata of
the New Capital Securities and the New Common Securities.
The Corporation has the right to redeem the New Junior Subordinated
Debentures (i) on or after January 15, 2007, in whole at any time or in part
from time to time, or (ii) in certain circumstances as described under "--
Description of New Junior Subordinated Debentures--Conditional Right to
Shorten Maturity or Redeem Upon a Tax Event, Investment Company Event or
Capital Treatment Event," in whole (but not in part) at any time within 90
days following the occurrence and during the continuation of a Tax Event,
Investment Company Event or Capital Treatment Event (or, if the approval of
the Federal Reserve is then required for such redemption, on such later date
as promptly as reasonably practicable after such approval is obtained). A
redemption of the New Junior Subordinated Debentures would cause a mandatory
redemption of a Like Amount of the New Capital Securities and New Common
Securities.
The Redemption Price, in the case of a redemption under (i) above, will
equal the following prices, expressed as percentages of the Liquidation Amount
of such New Capital Securities, together with accumulated and unpaid
Distributions thereon to but excluding the date fixed for redemption (the
"Redemption Date"), if redeemed during the 12-month period beginning January
15:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
2007........................................................... 103.4120%
2008........................................................... 103.0708
2009........................................................... 102.7296
2010........................................................... 102.3884
2011........................................................... 102.0472
2012........................................................... 101.7060
2013........................................................... 101.3648
2014........................................................... 101.0236
2015........................................................... 100.6824
2016........................................................... 100.3412
</TABLE>
and at 100% on or after January 15, 2017.
39
<PAGE>
The Redemption Price, in the case of a redemption following a Tax Event,
Investment Company Event or Capital Treatment Event as described under (ii)
above, will be equal to the aggregate Liquidation Amount of New Capital
Securities so redeemed, together with accumulated and unpaid Distributions
thereon to but excluding the Redemption Date.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day on
which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed, or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Like Amount" means (i) with respect to a redemption of New Trust
Securities, New Trust Securities having a Liquidation Amount equal to that
portion of the principal amount of New Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the New Junior Subordinated
Indenture, and (ii) with respect to a distribution of New Junior Subordinated
Debentures to holders of New Trust Securities in connection with a dissolution
or liquidation of the Issuer Trust, New Junior Subordinated Debentures having
a principal amount equal to the Liquidation Amount of the New Trust Securities
of the holder to whom such New Junior Subordinated Debentures are distributed.
"Tax Event" means the receipt by the Issuer Trust or the Corporation of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after January 9, 1997,
there is more than an insubstantial risk that (i) the Issuer Trust is, or will
be within 90 days of the delivery of such opinion, subject to United States
federal income tax with respect to income received or accrued on the New
Junior Subordinated Debentures, (ii) interest payable by the Corporation on
the New Junior Subordinated Debentures is not, or within 90 days of the
delivery of such opinion, will not be, deductible by the Corporation, in whole
or in part, for United States federal income tax purposes or (iii) the Issuer
Trust is, or will be within 90 days of the delivery of such opinion, subject
to more than a de minimis amount of other taxes, duties or other governmental
charges (each of the circumstances referred to in clauses (i), (ii) or (iii)
of this sentence being referred to herein as an "Adverse Tax Consequence").
See "--Description of New Junior Subordinated Debentures--Conditional Right to
Shorten Maturity or Redeem Upon a Tax Event, Investment Company Event or
Capital Treatment Event."
"Investment Company Event" means the receipt by the Issuer Trust or the
Corporation of an opinion of counsel experienced in such matters to the effect
that, as a result of the occurrence of a change in law or regulation or a
change (including any announced proposed change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act, which change or
proposed change becomes effective or would become effective, as the case may
be, on or after January 9, 1997.
"Capital Treatment Event" means the reasonable determination by the
Corporation that, as a result of the occurrence of any amendment to, or change
(including any announced proposed change) in, the laws (or any rules or
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such
laws, rules or regulations, which amendment or change is effective or which
pronouncement, action or decision is announced on or after January 9, 1997,
there is more than an insubstantial risk that the Corporation will not be
entitled to treat an amount equal to the Liquidation Amount of the New Capital
Securities as "Tier 1 Capital" (or the then equivalent thereof) for purposes
of the capital adequacy guidelines of the Federal Reserve, as then in effect
and applicable to the Corporation.
40
<PAGE>
Payment of Additional Sums
If a Tax Event described in clause (i) or (iii) of the definition of Tax
Event above has occurred and is continuing and the Issuer Trust is the holder
of all of the New Junior Subordinated Debentures, the Corporation will pay
Additional Sums (as defined below), if any, on the New Junior Subordinated
Debentures.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by the Issuer Trust on
the outstanding New Capital Securities and New Common Securities of the Issuer
Trust will not be reduced as a result of any additional taxes, duties and
other governmental charges to which the Issuer Trust has become subject as a
result of a Tax Event.
Redemption Procedures
New Capital Securities redeemed on each Redemption Date will be redeemed at
the applicable Redemption Price with the applicable proceeds from the
contemporaneous redemption of the New Junior Subordinated Debentures.
Redemptions of the New Capital Securities will be made and the Redemption
Price will be payable on each Redemption Date only to the extent that the
Issuer Trust has funds on hand available for the payment of such Redemption
Price. See also "--Subordination of New Common Securities."
If the Issuer Trust gives a notice of redemption in respect of the New
Capital Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, to the extent funds are available, in the case of New Capital Securities
held in book-entry form, the Property Trustee will deposit irrevocably with
DTC funds sufficient to pay the applicable Redemption Price and will give DTC
irrevocable instructions and authority to pay the Redemption Price to the
holders of the New Capital Securities. With respect to New Capital Securities
not held in book-entry form, the Property Trustee, to the extent funds are
available, will irrevocably deposit with the paying agent for the New Capital
Securities funds sufficient to pay the applicable Redemption Price and will
give such paying agent irrevocable instructions and authority to pay the
Redemption Price to the holders thereof upon surrender of their certificates
evidencing the New Capital Securities. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any New Capital
Securities called for redemption will be payable to the holders of the New
Capital Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption has been given and funds deposited as required,
then upon the date of such deposit, all rights of the holders of such New
Capital Securities so called for redemption will cease, except the right of
the holders of such New Capital Securities to receive the Redemption Price,
but without interest on such Redemption Price, and such New Capital Securities
will cease to be outstanding. If any date fixed for redemption of New Capital
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day which is a Business Day
(without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day. If payment of the
Redemption Price in respect of New Capital Securities called for redemption is
improperly withheld or refused and not paid either by the Issuer Trust or by
the Corporation pursuant to the New Guarantee as described under "--
Description of New Guarantee," Distributions on such New Capital Securities
will continue to accumulate at a rate of 7.90% per annum from the Redemption
Date originally established by the Issuer Trust for such New Capital
Securities to the date such Redemption Price is actually paid, in which case
the actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities laws), the Corporation or its subsidiaries may at any time
and from time to time purchase outstanding New Capital Securities by tender,
in the open market or by private agreement, and may resell such securities.
If less than all of the New Capital Securities and New Common Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
such New Capital Securities and New Common Securities to be redeemed will be
allocated pro rata to the New Capital Securities and the New Common Securities
based upon the relative Liquidation Amounts of such classes. The particular
New Capital Securities to be redeemed will be selected on a pro rata basis not
more than 60 days prior to the Redemption Date by the
41
<PAGE>
Property Trustee from the outstanding New Capital Securities not previously
called for redemption, or if the New Capital Securities are then held in the
form of a Global New Capital Security (as defined below), in accordance with
DTC's customary procedures, provided, in each case, that each holder of any
New Capital Securities has at least 100 New Capital Securities remaining after
the redemption. The Property Trustee will promptly notify the securities
registrar for the New Trust Securities in writing of the New Capital
Securities selected for redemption and, in the case of any New Capital
Securities selected for partial redemption, the Liquidation Amount thereof to
be redeemed. For all purposes of the New Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of New Capital
Securities shall relate, in the case of any New Capital Securities redeemed or
to be redeemed only in part, to the portion of the aggregate Liquidation
Amount of New Capital Securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each registered holder of New Capital
Securities to be redeemed at its address appearing on the securities register
for the New Trust Securities. Unless the Corporation defaults in payment of
the Redemption Price on the New Junior Subordinated Debentures, on and after
the Redemption Date interest will cease to accrue on the New Junior
Subordinated Debentures or portions thereof (and, unless payment of the
Redemption Price in respect of the New Capital Securities is withheld or
refused and not paid either by the Issuer Trust or the Corporation pursuant to
the New Guarantee, Distributions will cease to accumulate on the New Capital
Securities or portions thereof) called for redemption.
Subordination of New Common Securities
Payment of Distributions on, and the Redemption Price of, the New Capital
Securities and New Common Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of such New Capital Securities and New Common
Securities. However, if on any Distribution Date or Redemption Date a
Debenture Event of Default has occurred and is continuing as a result of any
failure by the Corporation to pay any amounts in respect of the New Junior
Subordinated Debentures when due, no payment of any Distribution on, or
Redemption Price of, any of the New Common Securities, and no other payment on
account of the redemption, liquidation or other acquisition of such New Common
Securities, will be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding New Capital Securities for all
Distribution periods terminating on or prior thereto, or in the case of
payment of the Redemption Price the full amount of such Redemption Price on
all of the outstanding New Capital Securities then called for redemption, has
been made or provided for, and all funds available to the Property Trustee
will first be applied to the payment in full in cash of all Distributions on,
or Redemption Price of, the New Capital Securities then due and payable.
In the case of any Event of Default (as defined below) with respect to the
New Capital Securities resulting from a Debenture Event of Default, the holder
of all the New Common Securities will be deemed to have waived any right to
act with respect to any such Event of Default under the New Trust Agreement
until the effect of all such Events of Default have been cured, waived or
otherwise eliminated. See "--Events of Default; Notice" and "--Description of
New Junior Subordinated Debentures--Debenture Events of Default." Until all
such Events of Default under the New Trust Agreement with respect to the New
Capital Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will act solely on behalf of the holders of the New Capital
Securities and not on behalf of the holder of all the New Common Securities,
and only the holders of the New Capital Securities will have the right to
direct the Property Trustee to act on their behalf.
Liquidation Distribution Upon Dissolution
The amount payable on the New Capital Securities in the event of any
liquidation of the Issuer Trust is $1,000 per New Capital Security plus
accumulated and unpaid Distributions, subject to certain exceptions, which may
be in the form of a distribution of such amount in New Junior Subordinated
Debentures.
The holder of all the New Common Securities has the right at any time to
dissolve the Issuer Trust and, after satisfaction of liabilities to creditors
of the Issuer Trust as provided by applicable law, cause the New Junior
Subordinated Debentures to be distributed to the holders of the New Capital
Securities and New Common
42
<PAGE>
Securities in liquidation of the Issuer Trust. The Corporation has committed
to the Federal Reserve that, so long as the Corporation (or an affiliate) is
the holder of all the New Common Securities, the Corporation (or such
affiliate) will not exercise such right without having received the prior
approval of the Federal Reserve to do so, if then required under applicable
Federal Reserve capital guidelines or policies.
Pursuant to the New Trust Agreement, the Issuer Trust will automatically
dissolve, and its affairs will be wound up, upon expiration of its term or, if
earlier, will dissolve, and its affairs will be wound up, on the first to
occur of: (i) certain events of bankruptcy, dissolution or liquidation of the
holder of all the New Common Securities; (ii) the distribution of a Like
Amount of the New Junior Subordinated Debentures to the holders of the New
Trust Securities, if the holder of all the New Common Securities has given
written direction to the Property Trustee to dissolve the Issuer Trust (which
direction, subject to the foregoing restrictions, is optional and wholly
within the discretion of the holder of all the New Common Securities); (iii)
redemption of all of the New Trust Securities as described under "--
Redemption;" and (iv) the entry of an order for the dissolution of the Issuer
Trust by a court of competent jurisdiction.
If dissolution of the Issuer Trust occurs as described in clause (i), (ii)
or (iv) above, the Issuer Trust will be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible by
distributing, after satisfaction of liabilities to creditors of the Issuer
Trust as provided by applicable law, to the holders of the New Trust
Securities a Like Amount of the New Junior Subordinated Debentures, unless
such distribution is determined by the Property Trustee not to be practical,
in which event such holders will be entitled to receive out of the assets of
the Issuer Trust available for distribution to holders, after satisfaction of
liabilities to creditors of the Issuer Trust as provided by applicable law, an
amount equal to the aggregate of the Liquidation Amount plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can be paid only
in part because the Issuer Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Issuer Trust on the New Trust Securities will be paid on a pro rata
basis. The holder of all the New Common Securities will be entitled to receive
distributions upon any such liquidation pro rata with the holders of the New
Capital Securities, except that if a Debenture Event of Default has occurred
and is continuing as a result of any failure by the Corporation to pay any
amounts in respect of the New Junior Subordinated Debentures when due, the New
Capital Securities shall have a priority over the New Common Securities.
After the liquidation date fixed for any distribution of New Junior
Subordinated Debentures (i) the New Capital Securities will no longer be
deemed to be outstanding, (ii) DTC or its nominee, as the registered holder of
the New Capital Securities, will receive a registered global certificate or
certificates representing the New Junior Subordinated Debentures to be
delivered upon such distribution with respect to New Capital Securities held
by DTC or its nominee and (iii) any certificates representing the New Capital
Securities not held by DTC or its nominee will be deemed to represent the New
Junior Subordinated Debentures having a principal amount equal to the stated
Liquidation Amount of such New Capital Securities and bearing accrued and
unpaid interest in an amount equal to the accumulated and unpaid Distributions
on such New Capital Securities until such certificates are presented to the
security registrar for the New Trust Securities for transfer or reissuance.
If the Corporation does not redeem the New Junior Subordinated Debentures
prior to maturity and the Issuer Trust is not liquidated and the New Junior
Subordinated Debentures are not distributed to holders of the New Capital
Securities, the New Capital Securities will remain outstanding until the
repayment of the New Junior Subordinated Debentures and the distribution of
the Liquidation Distribution to the holders of the New Capital Securities.
There can be no assurance as to the market prices for the Capital Securities
or the New Junior Subordinated Debentures that may be distributed in exchange
for New Capital Securities if a termination and liquidation of the Issuer
Trust were to occur. Accordingly, the New Capital Securities that an investor
may purchase, or the New Junior Subordinated Debentures that the investor may
receive on dissolution and liquidation of the Issuer Trust, may trade at a
discount to the price that the investor paid to purchase the New Capital
Securities offered hereby.
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<PAGE>
If the Corporation elects to dissolve the Issuer Trust and thereby cause the
New Junior Subordinated Debentures to be distributed to holders of the New
Capital Securities in exchange therefor upon liquidation of the Issuer Trust,
the Corporation will continue to have the right to shorten the maturity of or
to redeem the New Junior Subordinated Debentures in certain circumstances upon
the occurrence of a Tax Event or Capital Treatment Event, as described under
"--Description of New Junior Subordinated Debentures--Conditional Right to
Shorten Maturity or Redeem Upon a Tax Event, Investment Company Event or
Capital Treatment Event."
Events of Default; Notice
Any one of the following events constitutes an "Event of Default" under the
New Trust Agreement (an "Event of Default") with respect to the New Capital
Securities (whatever the reason for such Event of Default and whether it is
voluntary or involuntary or is 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):
(i) the occurrence of a Debenture Event of Default (see "--Description of
New Junior Subordinated Debentures--Debenture Events of Default"); or
(ii) default by the Issuer Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a period
of 30 days; or
(iii) default by the Issuer Trust in the payment of any Redemption Price
of any New Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in the New Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Issuer Trustees and the Corporation by the holders of at least
25% in aggregate Liquidation Amount of the outstanding New Capital
Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under the New Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee if a successor Property Trustee has not
been appointed within 90 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee will transmit
notice of such Event of Default to the holders of New Trust Securities, the
Administrative Trustees and the Corporation, unless such Event of Default has
been cured or waived. The Corporation, as Depositor, and the Administrative
Trustees are required to file annually with the Property Trustee a certificate
as to whether or not they are in compliance with all the conditions and
covenants applicable to them under the New Trust Agreement.
If a Debenture Event of Default has occurred and is continuing as a result
of any failure by the Corporation to pay any amounts in respect of the New
Junior Subordinated Debentures when due, the New Capital Securities will have
a preference over the New Common Securities with respect to payments of any
amounts in respect of the New Capital Securities as described above. See "--
Subordination of New Common Securities," "--Liquidation Distribution Upon
Termination" and "--Description of New Junior Subordinated Debentures--
Debenture Events of Default."
The existence of an Event of Default does not entitle the holders of New
Capital Securities to accelerate the maturity thereof.
44
<PAGE>
Removal of Issuer Trustees; Appointment of Successors
Unless a Debenture Event of Default has occurred and is continuing, any
Issuer Trustee may be removed at any time by the holder of all the New Common
Securities. If a Debenture Event of Default has occurred and is continuing,
the Property Trustee and the Delaware Trustee may be removed at such time by
the holders of a majority in Liquidation Amount of the outstanding New Capital
Securities. In no event will the holders of the New Capital Securities have
the right to vote to appoint, remove or replace the Administrative Trustees,
which voting rights are vested exclusively in the holder of all the New Common
Securities. No resignation or removal of an Issuer Trustee and no appointment
of a successor trustee will be effective until the acceptance of appointment
by the successor trustee in accordance with the provisions of the New Trust
Agreement.
Merger or Consolidation of Issuer Trustees
Any entity into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any entity
resulting from any merger, conversion or consolidation to which such Issuer
Trustee is a party, or any entity succeeding to all or substantially all the
corporate trust business of such Issuer Trustee, will be the successor of such
Issuer Trustee under the New Trust Agreement, provided such entity is
otherwise qualified and eligible.
Mergers, Consolidations, Amalgamations or Replacements of the Issuer Trust
The Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except as described below or as
otherwise set forth in the New Trust Agreement. The Issuer Trust may, at the
request of the holder of all the New Common Securities and with the consent of
the Administrative Trustees, but without the consent of the holders of the
outstanding New Capital Securities, merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the
laws of any State, so long as (i) such successor entity either (a) expressly
assumes all of the obligations of the Issuer Trust with respect to the New
Capital Securities or (b) substitutes for the New Capital Securities other
securities having substantially the same terms as the New Capital Securities
(the "Successor Securities") so long as the Successor Securities have the same
priority as the New Capital Securities with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) a trustee of such
successor entity, possessing the same powers and duties as the Property
Trustee, is appointed to hold the New Junior Subordinated Debentures, (iii)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the New Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the New Capital Securities
(including any Successor Securities) in any material respect, (v) such
successor entity has a purpose substantially identical to that of the Issuer
Trust, (vi) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Issuer Trust has received an opinion from
independent counsel experienced in such matters to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the New Capital Securities (including any Successor Securities) in
any material respect and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the Issuer
Trust nor such successor entity will be required to register as an investment
company under the Investment Company Act, and (vii) the Corporation or any
permitted successor or assignee owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the New Guarantee.
Notwithstanding the foregoing, the Issuer Trust may not, except with the
consent of holders of 100% in aggregate Liquidation Amount of the New Capital
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Issuer Trust or the successor entity to be taxable as a corporation or as
other than a grantor trust for United States federal income tax purposes.
45
<PAGE>
Voting Rights; Amendment of New Trust Agreement
Except as provided below and under "--Removal of Issuer Trustees;
Appointment of Successors" and "--Description of New Guarantee--Amendments and
Assignment" and as otherwise required by law and the New Trust Agreement, the
holders of the New Capital Securities will have no voting rights.
The New Trust Agreement may be amended from time to time by the holder of
all the New Common Securities and the Issuer Trustees, without the consent of
the holders of the New Capital Securities (i) to cure any ambiguity, correct
or supplement any provisions in the New Trust Agreement that may be
inconsistent with any other provision, or to make any other provisions with
respect to matters or questions arising under the New Trust Agreement, which
are not inconsistent with the other provisions of the New Trust Agreement,
provided that any such amendment does not adversely affect in any material
respect the interests of any holder of New Trust Securities, or (ii) to
modify, eliminate or add to any provisions of the New Trust Agreement to such
extent as may be necessary to ensure that the Issuer Trust will not be taxable
as a corporation or will be taxable as a grantor trust for United States
federal income tax purposes at any time that any New Trust Securities are
outstanding or to ensure that the Issuer Trust will not be required to
register as an "investment company" under the Investment Company Act, and any
amendments of the New Trust Agreement will become effective when notice of
such amendment is given to the holders of New Trust Securities. The New Trust
Agreement may be amended by the holder of all the New Common Securities and
the Issuer Trustees with (i) the consent of holders representing not less than
a majority in aggregate Liquidation Amount of the outstanding New Capital
Securities and (ii) receipt by the Issuer Trustees of an opinion of counsel to
the effect that such amendment or the exercise of any power granted to the
Issuer Trustees in accordance with such amendment will not affect the Issuer
Trust's not being taxable as a corporation or being taxable as a grantor trust
for United States federal income tax purposes or the Issuer Trust's exemption
from status as an "investment company" under the Investment Company Act,
except that without the consent of each holder of New Trust Securities, the
New Trust Agreement may not be amended to (i) change the amount or timing of
any Distribution on the New Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the New Trust
Securities as of a specified date or (ii) restrict the right of a holder of
New Trust Securities to institute suit for the enforcement of any such payment
on or after such date.
So long as any New Junior Subordinated Debentures are held by the Issuer
Trust, the Property Trustee will not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee,
or execute any trust or power conferred on the Property Trustee with respect
to the New Junior Subordinated Debentures, (ii) waive any past default that is
waivable under Section 5.13 of the New Junior Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the New Junior
Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the New Junior Subordinated
Indenture or the New Junior Subordinated Debentures, where such consent shall
be required, without, in each case, obtaining the prior approval of the
holders of at least a majority in aggregate Liquidation Amount of the
outstanding New Capital Securities, except that if a consent under the New
Junior Subordinated Indenture would require the consent of each holder of New
Junior Subordinated Debentures affected thereby, no such consent will be given
by the Property Trustee without the prior consent of each holder of the New
Capital Securities. The Property Trustee may not revoke any action previously
authorized or approved by a vote of the holders of the New Capital Securities
except by subsequent vote of the holders of the New Capital Securities. The
Property Trustee will notify each holder of New Capital Securities of any
notice of default with respect to the New Junior Subordinated Debentures. In
addition to obtaining the foregoing approvals of the holders of the New
Capital Securities, before taking any of the foregoing actions, the Property
Trustee will obtain an opinion of counsel experienced in such matters to the
effect that the Issuer Trust will not be taxable as a corporation or have its
status as a grantor trust affected for United States federal income tax
purposes on account of such action.
Any required approval of holders of New Capital Securities may be given at a
meeting of holders of New Capital Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of New Capital Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be
taken, to be given to each registered holder of New Capital Securities in the
manner set forth in the New Trust Agreement.
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No vote or consent of the holders of New Capital Securities will be required
to redeem and cancel New Capital Securities in accordance with the New Trust
Agreement.
Notwithstanding that holders of New Capital Securities are entitled to vote
or consent under any of the circumstances described above, any of the New
Capital Securities that are owned by the Corporation, the Issuer Trustees or
any affiliate of the Corporation or any Issuer Trustee, will, for purposes of
such vote or consent, be treated as if they were not outstanding.
Book-Entry, Delivery and Form
The New Capital Securities will be issued in fully registered form in
minimum blocks of at least 100 (representing a minimum of $100,000 aggregate
Liquidation Amount) and the New Capital Securities must at all times be held
in blocks of at least 100.
The New Capital Securities initially will be evidenced by one or more global
New Capital Securities (collectively, the "Global New Capital Securities")
which will be deposited with, or on behalf of, DTC and registered in the name
of a nominee of DTC. Except as set forth below, record ownership of the Global
New Capital Securities may be transferred, in whole or in part, only to
another nominee of DTC or to a successor of DTC or its nominee.
Payment of Distributions on, and the Redemption Price of, the Global New
Capital Securities will be made to DTC's nominee, as the registered holder of
the Global New Capital Securities, by wire transfer of immediately available
funds on each Distribution Date or Redemption Date. Neither the Corporation
nor the Issuer Trustees (or any securities registrar, paying agent or exchange
agent under the New Trust Agreement) will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in the Global New Capital Securities, for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests or for the performance by DTC or its Participants (as
defined below) or Indirect Participants (as defined below) of their respective
obligations under the rules and procedures governing their operations.
The Corporation and the Issuer Trust have been informed by DTC that, with
respect to any payment of Distributions on, or the Redemption Price of, the
Global New Capital Securities, DTC's practice is to credit the accounts of
organizations that are participants in DTC ("Participants") on the payment
date therefor with payments in amounts proportionate to their respective
beneficial interests in the New Capital Securities represented by the Global
New Capital Securities, as shown on the records of DTC (adjusted as necessary
so that such payments are made with respect to whole New Capital Securities
only), unless DTC has reason to believe that it will not receive payment on
such payment date. Payments by Participants to owners of beneficial interests
in New Capital Securities represented by the Global New Capital Securities
held through such Participants will be the responsibility of such
Participants, as is the case with securities held for the accounts of
customers registered in "street name."
Because DTC can only act on behalf of Participants, who in turn act on
behalf of certain banks, brokers, dealers, trust companies and other parties
that clear through or maintain a custodial relationship with a Participant,
either directly or indirectly ("Indirect Participants"), the ability of a
person having a beneficial interest in New Capital Securities represented by
the Global New Capital Securities to pledge such interest to persons or
entities that do not participate in the DTC system, or otherwise take actions
in respect of such interest, may be affected by the lack of a physical
certificate evidencing such interest. Furthermore, the laws of some states
require that certain persons take physical delivery of securities in
definitive form. Consequently, the ability to transfer beneficial interests in
the Global New Capital Securities to such persons may be limited.
DTC has advised the Corporation and the Issuer Trust that it will take any
action permitted to be taken by a holder of New Capital Securities only at the
direction of one or more Participants to whose account with DTC interests in
the Global New Capital Securities are credited and only in respect of the
aggregate Liquidation
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Amount of the New Capital Securities represented by the Global New Capital
Securities as to which such Participant or Participants has or have given such
direction.
DTC has advised the Corporation and the Issuer Trust as follows: DTC is a
limited purpose trust company organized under the laws of the State of New
York, a member of the Federal Reserve System, a "clearing corporation" within
the meaning of the Uniform Commercial Code and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act. DTC was created
to hold securities for its Participants and to facilitate the clearance and
settlement of securities transactions between Participants through electronic
book-entry changes to accounts of its Participants, 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. Certain of such Participants (or their
representatives), together with other entities, own DTC. Indirect access to
the DTC system 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.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global New Capital Securities among Participants
of DTC, it is under no obligation to perform or continue to perform such
procedures, and such procedures may be discontinued at any time. The Global
New Capital Securities are exchangeable for definitive New Capital Securities
in registered certificated form if (i) DTC advises the Corporation and the
Property Trustee that it is no longer willing or able to properly discharge
its responsibilities with respect to the Global New Capital Securities, and
the Property Trustee is unable to locate a qualified successor, (ii) the
Issuer Trust at its option advises DTC in writing that it elects to terminate
the book-entry system through DTC or (iii) after the occurrence of a Debenture
Event of Default. In all cases, certificated New Capital Securities delivered
in exchange for any Global New Capital Securities or beneficial interests
therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of DTC (in accordance with its
customary procedures.
So long as DTC or its nominee is the registered holder of the Global New
Capital Securities, DTC or such nominee, as the case may be, will be
considered the sole owner or holder of the New Capital Securities represented
by the Global New Capital Securities for all purposes under the New Trust
Agreement. Except as provided above, owners of beneficial interests in the
Global New Capital Securities will not be entitled to have any of the
individual New Capital Securities represented by the Global New Capital
Securities registered in their names, will not receive or be entitled to
receive physical delivery of any such New Capital Securities in definitive
form and will not be considered the owners or holders thereof under the New
Trust Agreement.
Payment and Paying Agency
Payments in respect of the New Capital Securities will be made to DTC, which
will credit the relevant accounts at DTC on the applicable Distribution Dates
or, if the New Capital Securities are not held by DTC, such payments will be
made by check mailed to the address of the holder entitled thereto as such
address appears on the securities register for the New Trust Securities. The
paying agent (the "Paying Agent") will initially be the Property Trustee and
any co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Corporation. The Paying Agent will be
permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Administrative Trustees. If the Property Trustee is
no longer the Paying Agent, the Administrative Trustees will appoint a
successor (which must be a bank or trust company reasonably acceptable to the
Corporation) to act as Paying Agent.
Registrar and Transfer Agent
The Property Trustee will act as registrar and transfer agent for the New
Capital Securities. Registration of transfers of New Capital Securities will
be effected without charge by or on behalf of the Issuer Trust, but upon
payment of any tax or other governmental charges that may be imposed in
connection with any transfer or
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exchange. The Issuer Trust will not be required to register or cause to be
registered the transfer of the New Capital Securities after the New Capital
Securities have been called for redemption.
Information Concerning the Property Trustee
The Property Trustee, other than during the occurrence and continuance of an
Event of Default, undertakes to perform only such duties as are specifically
set forth in the New Trust Agreement and, after such Event of Default, must
exercise the same degree of care and skill as a prudent person would exercise
or use in the conduct of his or her own affairs. The Property Trustee is under
no obligation to exercise any of the powers vested in it by the New Trust
Agreement at the request of any holder of New Trust Securities unless it is
offered reasonable indemnity against the costs, expenses and liabilities that
might be incurred thereby. The Property Trustee is not required to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Property Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it. If no Event
of Default has occurred and is continuing and the Property Trustee is required
to decide between alternative courses of action, or construe ambiguous
provisions in the New Trust Agreement, or is unsure of the application of any
provision of the New Trust Agreement, and the matter is not one on which
holders of New Trust Securities are entitled under the New Trust Agreement to
vote, then the Property Trustee will take such action as is directed by the
Corporation and, if not so directed, will take such action as it deems
advisable and in the best interests of the holders of the New Trust Securities
and will have no liability except for its own bad faith, negligence or willful
misconduct.
Wilmington Trust Company, the Property Trustee, currently serves and may
serve from time to time in the future as trustee under other indentures or
trust agreements with the Corporation or its subsidiaries or affiliates
relating to other issues of their securities. In addition, the Corporation and
certain of its affiliates may have other banking relationships with Wilmington
Trust Company.
Governing Law
The New Trust Agreement and the New Trust Securities will be governed by and
construed in accordance with the laws of the State of Delaware.
Miscellaneous
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Issuer Trust in such a way that the Issuer Trust
will not be deemed to be an "investment company" required to be registered
under the Investment Company Act or taxable as a corporation and will be
taxable as a grantor trust for United States federal income tax purposes and
so that the New Junior Subordinated Debentures will be treated as indebtedness
of the Corporation for United States federal income tax purposes. In this
connection, the Corporation and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the certificate of
trust of the Issuer Trust or the New Trust Agreement, that the Corporation and
the Administrative Trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the New Capital Securities.
Holders of the New Capital Securities have no preemptive or similar rights.
The Issuer Trust may not borrow money or issue debt or mortgage or pledge
any of its assets.
DESCRIPTION OF NEW JUNIOR SUBORDINATED DEBENTURES
The New Junior Subordinated Debentures are to be issued under the New Junior
Subordinated Indenture, under which Wilmington Trust Company is acting as
Debenture Trustee. This summary of certain terms and provisions of the New
Junior Subordinated Debentures and the New Junior Subordinated Indenture does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, all the provisions of the
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New Junior Subordinated Indenture, including the definitions therein of
certain terms. Whenever particular defined terms of the New Junior
Subordinated Indenture (as amended or supplemented from time to time) are
referred to herein, such defined terms are incorporated herein by reference.
The New Junior Subordinated Indenture will be qualified as an indenture under
the Trust Indenture Act. Wilmington Trust Company, as Debenture Trustee, will
act as trustee for the purposes of compliance with the Trust Indenture Act. A
copy of the form of New Junior Subordinated Indenture is available from the
Debenture Trustee upon request.
General
Concurrently with the issuance of the Old Capital Securities, the Old Issuer
Trust invested the proceeds thereof, together with the consideration paid by
the Corporation for the common securities of the Old Issuer Trust, in the Old
Junior Subordinated Debentures. Pursuant to the Exchange Offer, the
Corporation will issue the New Junior Subordinated Debentures to the Issuer
Trust in exchange for all the New Trust Securities to be issued by the Issuer
Trust. The New Capital Securities will be delivered by the Corporation in
exchange for the Old Capital Securities as described under "The Exchange
Offer." The New Junior Subordinated Debentures will bear interest, accruing
from the most recent interest payment date of the Old Junior Subordinated
Debentures or, if no interest has been paid on such Old Junior Subordinated
Debentures, from January 16, 1997, at the annual rate of 7.90% of the
principal amount thereof, payable semi-annually in arrears on January 15 and
July 15 of each year (each, an "Interest Payment Date"), commencing on the
first such date following the date of original issuance of the New Junior
Subordinated Debentures, to the person in whose name each New Junior
Subordinated Debenture is registered at the close of business on the fifteenth
day (whether or not a Business Day) next preceding such Interest Payment Date.
It is anticipated that, until the liquidation, if any, of the Issuer Trust,
each New Junior Subordinated Debenture will be held in the name of the
Property Trustee in trust for the benefit of the holders of the New Trust
Securities. The amount of interest payable for any period less than a full
interest period will be computed on the basis of a 360-day year of twelve 30-
day months and the actual days elapsed in a partial month in such period. The
amount of interest payable for any full interest period will be computed by
dividing the rate per annum by two. If any date on which interest is payable
on the New Junior Subordinated Debentures is not a Business Day, then payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of
any such delay), with the same force and effect as if made on the date such
payment was originally payable. Accrued interest that is not paid on the
applicable Interest Payment Date will bear additional interest on the amount
thereof (to the extent permitted by law) at the rate per annum of 7.90%,
compounded semi-annually and computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in such period.
The amount of additional interest payable for any full interest period will be
computed by dividing the rate per annum by two. The term "interest" as used
herein includes semi-annual interest payments, interest on semi-annual
interest payments not paid on the applicable Interest Payment Date and
Additional Sums, as applicable.
The New Junior Subordinated Debentures will mature on January 15, 2027.
The New Junior Subordinated Debentures will be unsecured and will rank
junior and be subordinate in right of payment to all Senior Indebtedness of
the Corporation. Because the Corporation is a holding company, the right of
the Corporation to participate in any distribution of assets of any
subsidiary, including Bankers, upon such subsidiary's dissolution, winding-up,
liquidation or reorganization or otherwise (and thus the ability of holders of
the New Junior Subordinated Debentures to benefit indirectly from such
distribution), is 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. There are various legal limitations
on the extent to which certain of the Corporation's subsidiaries may extend
credit, pay dividends or otherwise supply funds to the Corporation or certain
of its other subsidiaries. Accordingly, the New Junior Subordinated Debentures
will be effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders of New Junior Subordinated Debentures
should look only to the assets of the Corporation for payments on the New
Junior Subordinated Debentures. See "Bankers Trust New York Corporation." The
New Junior Subordinated Indenture does not limit the incurrence or issuance of
other secured or unsecured debt by the Corporation, including Senior
Indebtedness, whether under the New Junior Subordinated Indenture or any
existing indenture or other indenture that the Corporation may enter into in
the future or otherwise. See "--Subordination."
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Option to Extend Interest Payment Period
So long as no Debenture Event of Default has occurred and is continuing, the
Corporation has the right at any time during the term of the New Junior
Subordinated Debentures to defer the payment of interest at any time or from
time to time for a period not exceeding 10 consecutive semi-annual periods
with respect to each Extension Period, provided that no Extension Period may
extend beyond the Stated Maturity of the New Junior Subordinated Debentures as
in effect on the date on which the Corporation elects to effect such deferral.
At the end of such Extension Period, the Corporation must pay all interest
then accrued and unpaid (together with interest thereon at the annual rate of
7.90%, compounded semi-annually and computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial month in such
period, to the extent permitted by applicable law). The amount of additional
interest payable for any full interest period will be computed by dividing the
rate per annum by two. During an Extension Period, interest will continue to
accrue and holders of New Junior Subordinated Debentures (or holders of New
Capital Securities while outstanding) will be required to accrue interest
income for United States federal income tax purposes. See "Certain Federal
Income Tax Consequences--Interest Income and Original Issue Discount."
During any such Extension Period, the Corporation may not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's capital stock or
(ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Corporation that rank
pari passu in all respects with or junior in interest to the New Junior
Subordinated Debentures (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Corporation in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or consultants,
in connection with a dividend reinvestment or stockholder stock purchase plan
or in connection with the issuance of capital stock of the Corporation (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of an exchange or conversion of
any class or series of the Corporation's capital stock (or any capital stock
of a subsidiary of the Corporation) for any class or series of the
Corporation's capital stock or of any class or series of the Corporation's
indebtedness for any class or series of the Corporation's capital stock, (c)
the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged, (d) any declaration of a
dividend in connection with any stockholder's rights plan, or the issuance of
rights, stock or other property under any stockholder's rights plan, or the
redemption or repurchase of rights pursuant thereto, or (e) any dividend in
the form of stock, warrants, options or other rights where the dividend stock
or the stock issuable upon exercise of such warrants, options or other rights
is the same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock). Prior to the termination of any such
Extension Period, the Corporation may further defer the payment of interest,
provided that no Extension Period may exceed 10 consecutive semi-annual
periods or extend beyond the Stated Maturity of the New Junior Subordinated
Debentures as in effect on the date on which the Corporation elects to effect
such deferral. Upon the termination of any such Extension Period and the
payment of all amounts then due, the Corporation may elect to begin a new
Extension Period subject to the above conditions. No interest shall be due and
payable during an Extension Period, except at the end thereof. The Corporation
must give the Property Trustee notice of its election of such Extension Period
at least one Business Day prior to the earlier of (i) the date the
Distributions on the New Capital Securities would have been payable but for
the election to begin such Extension Period and (ii) the date the Property
Trustee is required to give notice to holders of the New Capital Securities of
the record date or the date such Distributions are payable, but in any event
not less than one Business Day prior to such record date. The Property Trustee
will give notice of the Corporation's election to begin a new Extension Period
to the holders of the New Capital Securities. There is no limitation on the
number of times that the Corporation may elect to begin an Extension Period.
Redemption
The New Junior Subordinated Debentures are redeemable prior to maturity at
the option of the Corporation (i) on or after January 15, 2007, in whole at
any time or in part from time to time, or (ii) in certain circumstances
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as described under "--Conditional Right to Shorten Maturity or Redeem Upon a
Tax Event, Investment Company Event or Capital Treatment Event" in whole (but
not in part) at any time within 90 days following the occurrence and during
the continuation of a Tax Event, Investment Company Event or Capital Treatment
Event (or, if the approval of the Federal Reserve is then required for such
redemption, on such later date as promptly as reasonably practicable after
such approval is obtained), in each case at the redemption price described
below. The proceeds of any such redemption will be used by the Issuer Trust to
redeem the New Capital Securities. The Corporation has committed to the
Federal Reserve that the Corporation will not exercise its right to redeem the
New Junior Subordinated Debentures prior to the Stated Maturity without having
received the prior approval of the Federal Reserve to do so, if then required
under applicable Federal Reserve capital guidelines or policies.
The Redemption Price for New Junior Subordinated Debentures in the case of
any redemption under (i) above shall equal the following prices, expressed in
percentages of the principal amount, together with accrued interest to but
excluding the date fixed for redemption. If redeemed during the 12-month
period beginning January 15:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
2007......................................................... 103.4120%
2008......................................................... 103.0708
2009......................................................... 102.7296
2010......................................................... 102.3884
2011......................................................... 102.0472
2012......................................................... 101.7060
2013......................................................... 101.3648
2014......................................................... 101.0236
2015......................................................... 100.6824
2016......................................................... 100.3412
</TABLE>
and at 100% on or after January 15, 2017.
The Redemption Price for New Junior Subordinated Debentures, in the case of
a redemption following a Tax Event, Investment Company Event or Capital
Treatment Event, as described under (ii) above, will be equal to 100% of the
principal amount, together with accrued interest to but excluding the date
fixed for redemption.
Conditional Right to Shorten Maturity or Redeem Upon a Tax Event,
Investment Company Event or Capital Treatment Event
The Corporation, as the holder of all the New Common Securities, has the
right to dissolve the Issuer Trust and, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to cause the New
Junior Subordinated Debentures to be distributed to the holders of the New
Trust Securities in liquidation of the Issuer Trust. The Corporation may
exercise this right at any time, including following the occurrence of a Tax
Event, Investment Company Event or Capital Treatment Event. See "--Description
of New Capital Securities--Liquidation Distribution Upon Dissolution."
In addition, if a Tax Event, Investment Company Event or Capital Treatment
Event occurs and either:
(i) in the opinion of counsel to the Corporation experienced in such
matters, there would be more than an insubstantial risk that, after the
distribution of the New Junior Subordinated Debentures to the holders of
the New Trust Securities in liquidation of the Issuer Trust, an Adverse Tax
Consequence would continue to exist, or
(ii) in the reasonable determination of the Corporation, there would be
more than an insubstantial risk that, after the distribution of the New
Junior Subordinated Debentures to the holders of the New Trust
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Securities in liquidation of the Issuer Trust, the Corporation will not be
entitled to treat an amount equal to the Liquidation Amount of the New
Capital Securities as "Tier 1 Capital" (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve, as then
in effect and applicable to the Corporation,
or if, at the time of such event, the New Junior Subordinated Debentures are
not held by the Issuer Trust, then the Corporation will have the right
(without being required to dissolve the Issuer Trust) to shorten the Stated
Maturity of the New Junior Subordinated Debentures such that, in the opinion
of counsel to the Corporation experienced in such matters, the interest
payable by the Corporation on the New Junior Subordinated Debentures will be
deductible for United States federal income tax purposes. The Corporation may
shorten the Stated Maturity of the New Junior Subordinated Debentures only to
the minimum extent required to achieve such effect, and in any event only to a
date not earlier than January 15, 2017. The action of shortening the Stated
Maturity is referred to herein as a "Maturity Advancement." The Corporation
has committed that it will not effect a Maturity Advancement without having
received the prior approval of the Federal Reserve to do so, if then required
under applicable Federal Reserve capital guidelines or policies.
If either:
(i) in the opinion of counsel to the Corporation experienced in such
matters, there would be more than an insubstantial risk that, after the
Corporation has effected a Maturity Advancement in accordance with the
previous paragraph, an Adverse Tax Consequence would continue to exist, or
(ii) in the reasonable determination of the Corporation, there would be
more than an insubstantial risk that, after the Corporation has effected a
Maturity Advancement in accordance with the previous paragraph, the
Corporation will not be entitled to treat an amount equal to the
Liquidation Amount of the New Capital Securities as "Tier 1 Capital" (or
the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to the
Corporation,
or if the Federal Reserve does not approve the Maturity Advancement following
the Corporation's request, then the Corporation will have the right (without
being required to effect a Maturity Advancement) to redeem, at 100% of the
aggregate principal amount plus accrued interest to but excluding the date
fixed for redemption, the New Junior Subordinated Debentures, in whole but not
in part, at any time within 90 days following the time of such event (or, if
the approval of the Federal Reserve is then required for such redemption, on
such later date as promptly as is reasonably practicable after such approval
is obtained). Such redemption will be made as described under "--Redemption"
above.
Holders of New Capital Securities should consult their own tax advisors
regarding the tax consequences to them of a Maturity Advancement.
See "Certain Federal Income Tax Consequences--Possible Tax Law Changes" for
a discussion of certain legislative proposals that, if adopted, could give
rise to a Tax Event, which may permit the Corporation to shorten the Stated
Maturity of the New Junior Subordinated Debentures or to cause a redemption of
the New Capital Securities prior to January 15, 2007.
Additional Sums
The Corporation has covenanted in the New Junior Subordinated Indenture
that, if and for so long as (i) the Issuer Trust is the holder of all New
Junior Subordinated Debentures and (ii) the Issuer Trust is required to pay
any additional taxes, duties or other governmental charges as a result of a
Tax Event, the Corporation will pay as Additional Sums on the New Junior
Subordinated Debentures such amounts as may be required so that the
Distributions payable by the Issuer Trust will not be reduced as a result of
any such additional taxes, duties or other governmental charges. See "--
Description of New Capital Securities--Redemption."
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Registration, Denomination and Transfer
The New Junior Subordinated Debentures will initially be registered in the
name of the Property Trustee, as trustee of the Issuer Trust. If the New
Junior Subordinated Debentures are distributed to holders of New Capital
Securities, it is anticipated that the depositary arrangements for the New
Junior Subordinated Debentures will be substantially identical to those in
effect for the New Capital Securities. See "--Description of New Capital
Securities--Book-Entry, Delivery and Form."
Although DTC has agreed to the procedures described above, it is under no
obligation to perform or continue to perform such procedures, and such
procedures may be discontinued at any time. If DTC is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed
by the Corporation within 90 days of receipt of notice from DTC to such
effect, the Corporation will cause the New Junior Subordinated Debentures to
be issued in definitive form.
Payments on New Junior Subordinated Debentures represented by a global
security will be made to DTC's nominee, as the registered holder of the New
Junior Subordinated Debentures, as described under "--Description of New
Capital Securities--Book-Entry, Delivery and Form." If New Junior Subordinated
Debentures are issued in certificated form, principal and interest will be
payable, the transfer of the New Junior Subordinated Debentures will be
registrable, and New Junior Subordinated Debentures will be exchangeable for
New Junior Subordinated Debentures of other authorized denominations of a like
aggregate principal amount, at the corporate trust office of the Debenture
Trustee in Wilmington, Delaware or at the offices of any paying agent or
transfer agent appointed by the Corporation, provided that payment of interest
may be made at the option of the Corporation by check mailed to the address of
the persons entitled thereto or by wire transfer.
The New Junior Subordinated Debentures will be issuable only in registered
form without coupons in minimum denominations of $100,000 and integral
multiples of $1,000 in excess thereof. New Junior Subordinated Debentures will
be exchangeable for other New Junior Subordinated Debentures of like tenor, of
any authorized denominations, and of a like aggregate principal amount.
New Junior Subordinated Debentures may be presented for exchange as provided
above, and may be presented for registration of transfer (with the form of
transfer endorsed thereon, or a satisfactory written instrument of transfer,
duly executed), at the office of the securities registrar appointed under the
New Junior Subordinated Debenture or at the office of any transfer agent
designated by the Corporation for such purpose without service charge and upon
payment of any taxes and other governmental charges as described in the New
Junior Subordinated Indenture. The Corporation will appoint the Debenture
Trustee as securities registrar under the New Junior Subordinated Indenture.
The Corporation may at any time designate additional transfer agents with
respect to the New Junior Subordinated Debentures.
In the event of any redemption, neither the Corporation nor the Debenture
Trustee shall be required to (i) issue, register the transfer of or exchange
New Junior Subordinated Debentures during a period beginning at the opening of
business 15 days before the day of selection for redemption of the New Junior
Subordinated Debentures to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption or (ii) transfer or
exchange any New Junior Subordinated Debentures so selected for redemption,
except, in the case of any New Junior Subordinated Debentures being redeemed
in part, any portion thereof not to be redeemed.
Any moneys deposited with the Debenture Trustee or any paying agent, or then
held by the Corporation in trust, for the payment of the principal of (and
premium, if any) or interest on any New Junior Subordinated Debenture and
remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall, at the request of the
Corporation, be repaid to the Corporation and the holder of such New Junior
Subordinated Debenture shall thereafter look, as a general unsecured creditor,
only to the Corporation for payment thereof.
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Restrictions on Certain Payments; Certain Covenants of the Corporation
The Corporation has covenanted that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock or
(ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Corporation that rank
pari passu in all respects with or junior in interest to the New Junior
Subordinated Debentures (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Corporation in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or consultants,
in connection with a dividend reinvestment or stockholder stock purchase plan
or in connection with the issuance of capital stock of the Corporation (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable event, (b) as a result of an exchange or conversion of any class or
series of the Corporation's capital stock (or any capital stock of a
subsidiary of the Corporation) for any class or series of the Corporation's
capital stock or of any class or series of the Corporation's indebtedness for
any class or series of the Corporation's capital stock, (c) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (d) any declaration of a dividend in connection
with any stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or repurchase
of rights pursuant thereto, or (e) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu with or
junior to such stock), if at such time (i) there has occurred any event (a) of
which the Corporation has actual knowledge that with the giving of notice or
the lapse of time, or both, would constitute a Debenture Event of Default and
(b) that the Corporation has not taken reasonable steps to cure, (ii) if the
New Junior Subordinated Debentures are held by the Issuer Trust, the
Corporation is in default with respect to its payment of any obligations under
the New Guarantee or (iii) the Corporation has given notice of its selection
of an Extension Period as provided in the New Junior Subordinated Indenture
and has not rescinded such notice, or such Extension Period, or any extension
thereof, is continuing.
The Corporation has covenanted in the New Junior Subordinated Indenture (i)
to continue to hold, directly or indirectly, 100% of the New Common
Securities, provided that certain successors that are permitted pursuant to
the New Junior Subordinated Indenture may succeed to the Corporation's
ownership of the New Common Securities, (ii) as holder of the New Common
Securities, not to voluntarily dissolve, wind-up or liquidate the Issuer
Trust, other than (a) in connection with a distribution of New Junior
Subordinated Debentures to the holders of the New Capital Securities in
liquidation of the Issuer Trust or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the New Trust Agreement and (iii)
to use its reasonable efforts, consistent with the terms and provisions of the
New Trust Agreement, to cause the Issuer Trust to continue not to be taxable
as a corporation and to be taxable as a grantor trust for United States
federal income tax purposes. In addition, the Corporation has committed to the
Federal Reserve that, so long as the Corporation (or any affiliate) is the
holder of the New Common Securities, the Corporation (or such affiliate) will
not voluntarily terminate or liquidate the Issuer Trust prior to the Stated
Maturity of the New Junior Subordinated Debentures without having received the
prior approval of the Federal Reserve to do so, if then required under
applicable Federal Reserve capital guidelines or policies.
Modification of New Junior Subordinated Indenture
From time to time the Corporation and the Debenture Trustee may, without the
consent of the holders of the New Junior Subordinated Debentures, amend, waive
or supplement the provisions of the New Junior Subordinated Indenture for
specified purposes, including, among other things, curing ambiguities, defects
or inconsistencies (provided that any such action does not materially
adversely affect the interests of the holders of the New Junior Subordinated
Debentures or the holders of the New Capital Securities so long as they remain
outstanding) and qualifying, or maintaining the qualification of, the New
Junior Subordinated Indenture under the Trust Indenture Act. The New Junior
Subordinated Indenture contains provisions permitting the Corporation
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and the Debenture Trustee, with the consent of the holders of not less than a
majority in principal amount of the New Junior Subordinated Debentures, to
modify the New Junior Subordinated Indenture in a manner affecting the rights
of the holders of the New Junior Subordinated Debentures, except that no such
modification may, without the consent of the holder of each outstanding New
Junior Subordinated Debenture so affected, (i) change the Stated Maturity of
the New Junior Subordinated Debentures, or reduce the principal amount
thereof, the rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where, or the currency in
which, any such amount is payable or impair the right to institute suit for
the enforcement of any New Junior Subordinated Debenture or (ii) reduce the
percentage of the principal amount of New Junior Subordinated Debentures, the
holders of which are required to consent to any such modification of the New
Junior Subordinated Indenture. Furthermore, so long as any of the New Capital
Securities remain outstanding, no such modification may be made that adversely
affects the holders of such New Capital Securities in any material respect,
and no termination of the New Junior Subordinated Indenture may occur, and no
waiver of any Debenture Event of Default or compliance with any covenant under
the New Junior Subordinated Indenture may be effective, without the prior
consent of the holders of at least a majority in aggregate Liquidation Amount
of the outstanding New Capital Securities unless and until the principal of
(and premium, if any, on) the New Junior Subordinated Debentures and all
accrued and unpaid interest thereon have been paid in full and certain other
conditions are satisfied.
Debenture Events of Default
The New Junior Subordinated Indenture provides that any one or more of the
following events with respect to the New Junior Subordinated Debentures that
has occurred and is continuing constitutes an "Event of Default" with respect
to the New Junior Subordinated Debentures:
(i) failure for 30 days to pay any interest on the New Junior
Subordinated Debentures when due (subject to the deferral of any due date
in the case of an Extension Period); or
(ii) failure to pay any principal of (or premium, if any, on) the New
Junior Subordinated Debentures when due, whether at maturity, upon
redemption, by declaration of acceleration or otherwise; or
(iii) failure to observe or perform in any material respect certain other
covenants contained in the New Junior Subordinated Indenture for 90 days
after written notice to the Corporation from the Debenture Trustee or the
holders of at least 25% in aggregate outstanding principal amount of the
outstanding New Junior Subordinated Debentures; or
(iv) certain events of bankruptcy, insolvency or reorganization of the
Corporation.
For purposes of the New Trust Agreement and this Prospectus, each such Event
of Default under the New Junior Subordinated Debenture is referred to as a
"Debenture Event of Default." As described in "--Description of New Capital
Securities--Events of Default; Notice," the occurrence of a Debenture Event of
Default will also constitute an Event of Default in respect of the New Capital
Securities.
The holders of at least a majority in aggregate principal amount of
outstanding New Junior Subordinated Debentures will have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee. The Debenture Trustee or the holders of
not less than 25% in aggregate principal amount of outstanding New Junior
Subordinated Debentures may declare the principal due and payable immediately
upon a Debenture Event of Default, and, if the Debenture Trustee or such
holders of New Junior Subordinated Debentures fail to make such declaration,
the holders of at least 25% in aggregate Liquidation Amount of the outstanding
New Capital Securities will have such right. The holders of a majority in
aggregate principal amount of outstanding New Junior Subordinated Debentures
may annul such declaration and waive the default if all defaults (other than
the non-payment of the principal of New Junior Subordinated Debentures which
has become due solely by such acceleration) have been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee.
If the holders of the New Junior Subordinated Debentures fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the outstanding New Capital Securities will have such
right.
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The holders of at least a majority in aggregate principal amount of the
outstanding New Junior Subordinated Debentures may, on behalf of the holders
of all the New Junior Subordinated Debentures, waive any past default, except
a default in the payment of principal (or premium, if any) or interest (unless
such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Debenture Trustee) or a default in respect of a
covenant or provision which under the New Junior Subordinated Indenture cannot
be modified or amended without the consent of the holder of each outstanding
New Junior Subordinated Debenture. See "--Modification of New Junior
Subordinated Indenture." The Corporation is required to file annually with the
Debenture Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
New Junior Subordinated Indenture.
If a Debenture Event of Default occurs and is continuing, the Property
Trustee will have the right to declare the principal of and the interest on
the New Junior Subordinated Debentures, and any other amounts payable under
the New Junior Subordinated Indenture, to be forthwith due and payable and to
enforce its other rights as a creditor with respect to the New Junior
Subordinated Debentures.
Enforcement of Certain Rights by Holders of New Capital Securities
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Corporation to pay any amounts
payable in respect of the New Junior Subordinated Debentures on the date such
amounts are otherwise payable, a registered holder of New Capital Securities
may institute a Direct Action against the Corporation for enforcement of
payment to such holder of an amount equal to the amount payable in respect of
New Junior Subordinated Debentures having a principal amount equal to the
aggregate Liquidation Amount of the New Capital Securities held by such
holder. The Corporation may not amend the New Junior Subordinated Indenture to
remove the foregoing right to bring a Direct Action without the prior written
consent of the holders of all of the New Capital Securities. The Corporation
will have the right under the New Junior Subordinated Indenture to set off any
payment made to such holder of New Capital Securities by the Corporation in
connection with a Direct Action.
The holders of the New Capital Securities will not be able to exercise
directly any remedies available to the holders of the New Junior Subordinated
Debentures except under the circumstances described in the preceding
paragraph. See "--Description of New Capital Securities--Events of Default;
Notice."
Consolidation, Merger, Sale of Assets and Other Transactions
The New Junior Subordinated Indenture provides that the Corporation may not
consolidate with or merge into any other person or convey, transfer or lease
its properties and assets substantially as an entirety to any person, and no
person may consolidate with or merge into the Corporation or convey, transfer
or lease its properties and assets substantially as an entirety to the
Corporation, unless (i) if the Corporation consolidates with or merges into
another person or conveys or transfers its properties and assets substantially
as an entirety to any person, the successor person is organized under the laws
of the United States or any state or the District of Columbia, and such
successor person expressly assumes the Corporation's obligations in respect of
the New Junior Subordinated Debentures; (ii) immediately after giving effect
thereto, no Debenture Event of Default, and no event which, after notice or
lapse of time or both, would constitute a Debenture Event of Default, has
occurred and is continuing; and (iii) certain other conditions as prescribed
in the New Junior Subordinated Indenture are satisfied.
The provisions of the New Junior Subordinated Indenture do not afford
holders of the New Junior Subordinated Debentures protection in the event of a
highly leveraged or other transaction involving the Corporation that may
adversely affect holders of the New Junior Subordinated Debentures.
Satisfaction and Discharge
The New Junior Subordinated Indenture provides that when, among other
things, all New Junior Subordinated Debentures not previously delivered to the
Debenture Trustee for cancellation (i) have become due
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and payable or (ii) will become due and payable at the Stated Maturity (as
then in effect) within one year, and the Corporation deposits or causes to be
deposited with the Debenture Trustee funds, in trust, for the purpose and in
an amount sufficient to pay and discharge the entire indebtedness on the New
Junior Subordinated Debentures not previously delivered to the Debenture
Trustee for cancellation, for the principal (and premium, if any) and interest
to the date of the deposit or to the Stated Maturity, as the case may be, then
the New Junior Subordinated Indenture will cease to be of further effect
(except as to the Corporation's obligations to pay all other sums due pursuant
to the New Junior Subordinated Indenture and to provide the officers'
certificates and opinions of counsel described therein), and the Corporation
will be deemed to have satisfied and discharged the New Junior Subordinated
Indenture.
Subordination
The New Junior Subordinated Debentures will be subordinate and junior in
right of payment, to the extent set forth in the New Junior Subordinated
Indenture, to all Senior Indebtedness of the Corporation. If the Corporation
defaults in the payment of any principal, premium, if any, or interest, if
any, or any other amount payable on any Senior Indebtedness when the same
becomes due and payable, whether at maturity or at a date fixed for redemption
or by declaration of acceleration or otherwise, then, unless and until such
default has been cured or waived or has ceased to exist or all Senior
Indebtedness has been paid, no direct or indirect payment (in cash, property
or securities, by set-off or otherwise) may be made or agreed to be made on
the New Junior Subordinated Debentures, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the New Junior
Subordinated Debentures.
As used herein, "Senior Indebtedness" means any obligation of the
Corporation to its creditors, whether now outstanding or subsequently
incurred, other than any obligation as to which, in the instrument creating or
evidencing the obligation or pursuant to which the obligation is outstanding,
it is provided that such obligation is not Senior Indebtedness, but does not
include trade accounts payable and accrued liabilities arising in the ordinary
course of business. Senior Indebtedness includes the Corporation's outstanding
subordinated debt securities and any subordinated debt securities issued in
the future with substantially similar subordination terms, but does not
include the Old Junior Subordinated Debentures or the New Junior Subordinated
Debentures or any junior subordinated debt securities issued in the future
with subordination terms substantially similar to those of the New Junior
Subordinated Debentures. Substantially all of the existing indebtedness of the
Corporation constitutes Senior Indebtedness.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of creditors or (iv)
any other marshalling of the assets of the Corporation, all Senior
Indebtedness (including any interest thereon accruing after the commencement
of any such proceedings) must first be paid in full before any payment or
distribution, whether in cash, securities or other property, may be made on
account of the New Junior Subordinated Debentures. In such event, any payment
or distribution on account of the New Junior Subordinated Debentures, whether
in cash, securities or other property, that would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the New
Junior Subordinated Debentures will be paid or delivered directly to the
holders of Senior Indebtedness in accordance with the priorities then existing
among such holders until all Senior Indebtedness (including any interest
thereon accruing after the commencement of any such proceedings) has been paid
in full.
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the holders of New Junior Subordinated
Debentures, together with the holders of any obligations of the Corporation
ranking on a parity with the New Junior Subordinated Debentures, will be
entitled to be paid from the remaining assets of the Corporation the amounts
at the time due and owing on the New Junior Subordinated Debentures and such
other obligations before any payment or other distribution, whether in cash,
property or otherwise, will be made on account of any capital stock or
obligations of the Corporation ranking junior to the New Junior Subordinated
Debentures and such other obligations. If any payment or distribution on
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account of the New Junior Subordinated Debentures of any character or any
security, whether in cash, securities or other property is received by any
holder of any New Junior Subordinated Debentures in contravention of any of
the terms hereof and before all the Senior Indebtedness has been paid in full,
such payment or distribution or security will be received in trust for the
benefit of, and must be paid over or delivered and transferred to, the holders
of the Senior Indebtedness at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Indebtedness remaining unpaid to the extent necessary to pay all
such Senior Indebtedness in full. By reason of such subordination, in the
event of the insolvency of the Corporation, holders of Senior Indebtedness may
receive more, ratably, and holders of the New Junior Subordinated Debentures
may receive less, ratably, than the other creditors of the Corporation. Such
subordination will not prevent the occurrence of any Event of Default in
respect of the New Junior Subordinated Debentures.
The New Junior Subordinated Indenture places no limitation on the amount of
additional Senior Indebtedness that may be incurred by the Corporation. The
Corporation expects from time to time to incur additional indebtedness
constituting Senior Indebtedness.
Information Concerning the Debenture Trustee
The duties of the Debenture Trustee will be subject to limitations and
qualifications substantially similar to those described with respect to the
Property Trustee under "--Description of New Capital Securities--Information
Concerning the Property Trustee."
For information concerning the relationships between Wilmington Trust
Company, the Debenture Trustee, and the Corporation, see "--Description of New
Capital Securities--Information Concerning the Property Trustee."
Governing Law
The New Junior Subordinated Indenture and the New Junior Subordinated
Debentures will be governed by and construed in accordance with the laws of
the State of New York.
DESCRIPTION OF NEW GUARANTEE
The New Guarantee will be executed and delivered by the Corporation,
concurrently with the issuance of New Capital Securities by the Issuer Trust,
for the benefit of the holders from time to time of the New Capital
Securities. Wilmington Trust Company will act as Guarantee Trustee under the
New Guarantee. This summary of certain provisions of the New Guarantee does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the New Guarantee, including the
definitions therein of certain terms. The New Guarantee will be qualified as
an indenture under the Trust Indenture Act. Wilmington Trust Company, as
Guarantee Trustee, will act as trustee for the purposes of compliance with the
Trust Indenture Act. A copy of the form of New Guarantee is available upon
request from the Guarantee Trustee. The Guarantee Trustee will hold the New
Guarantee for the benefit of the holders of the New Capital Securities.
General
The Corporation will irrevocably agree to pay in full on a subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined
below) to the holders of the New Capital Securities, as and when due,
regardless of any defense, right of set-off or counterclaim that the Issuer
Trust may have or assert other than the defense of payment. The following
payments with respect to the New Capital Securities, to the extent not paid by
or on behalf of the Issuer Trust (the "Guarantee Payments"), will be subject
to the New Guarantee: (i) any accumulated and unpaid Distributions required to
be paid on such New Capital Securities, to the extent that the Issuer Trust
has funds on hand available therefor at such time, (ii) the Redemption Price
with respect to any New Capital Securities called for redemption, to the
extent that the Issuer Trust has funds on hand available therefor at such
time, and (iii) upon a voluntary or involuntary dissolution, winding-up or
liquidation of the Issuer Trust (unless the New Junior Subordinated Debentures
are distributed to holders of the New Capital Securities),
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the lesser of (a) the Liquidation Distribution, to the extent that the Issuer
Trust has funds on hand available therefor at such time, and (b) the amount of
assets of the Issuer Trust remaining available for distribution to holders of
the New Capital Securities on liquidation of the Issuer Trust after
satisfaction of liabilities to creditors of such Issuer Trust as required by
applicable law. The Corporation's obligation to make a Guarantee Payment may
be satisfied by direct payment of the required amounts by the Corporation to
the holders of the New Capital Securities or by causing the Issuer Trust to
pay such amounts to such holders.
The New Guarantee will be an irrevocable guarantee on a subordinated basis
of the Issuer Trust's obligations under the New Capital Securities, but will
apply only to the extent that the Issuer Trust has funds sufficient to make
such payments.
If the Corporation does not make payments on the New Junior Subordinated
Debentures held by the Issuer Trust, the Issuer Trust will not be able to pay
any amounts payable in respect of the New Capital Securities and will not have
funds legally available therefor. The New Guarantee will rank subordinate and
junior in right of payment to all Senior Indebtedness of the Corporation. See
"--Status of New Guarantee." Because the Corporation is a holding company, the
right of the Corporation to participate in any distribution of assets of any
subsidiary upon such subsidiary's dissolution, winding-up, liquidation or
reorganization or otherwise is 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. There are also
various legal limitations on the extent to which certain of the Corporation's
subsidiaries may extend credit, pay dividends or otherwise supply funds to the
Corporation or certain of its other subsidiaries. Accordingly, the
Corporation's obligations under the New Guarantee will be effectively
subordinated and junior in right of payment to all existing and future
liabilities of the Corporation's subsidiaries, and claimants under the New
Guarantee should look only to the assets of the Corporation for payments
thereunder. See "Bankers Trust New York Corporation." The New Guarantee will
not limit the incurrence or issuance of other secured or unsecured debt of the
Corporation, including Senior Indebtedness, whether under the New Junior
Subordinated Indenture, any other existing indenture or any other indenture
that the Corporation may enter into in the future or otherwise.
The Corporation has, through the New Guarantee, the New Trust Agreement, the
New Junior Subordinated Debentures, the New Junior Subordinated Indenture and
the New Expense Agreement, taken together, fully, irrevocably and
unconditionally guaranteed all of the Issuer Trust's obligations under the New
Capital Securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Issuer Trust's obligations in respect of the New Capital Securities. See
"Relationship Among the New Capital Securities, the New Junior Subordinated
Debentures, the New Guarantee and the New Expense Agreement."
Status of New Guarantee
The New Guarantee will constitute an unsecured obligation of the Corporation
and will rank subordinate and junior in right of payment to all Senior
Indebtedness of the Corporation in the same manner as the New Junior
Subordinated Debentures.
The New Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Corporation to enforce its rights under the New Guarantee
without first instituting a legal proceeding against any other person or
entity). The New Guarantee will be held by the Guarantee Trustee for the
benefit of the holders of the New Capital Securities. The New Guarantee will
not be discharged except by payment of the Guarantee Payments in full to the
extent not paid by the Issuer Trust or distribution to the holders of the New
Capital Securities of the New Junior Subordinated Debentures.
Amendments and Assignment
Except with respect to any changes which do not materially adversely affect
the rights of holders of the New Capital Securities (in which case no vote
will be required), the New Guarantee may not be amended without
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the prior approval of the holders of not less than a majority in aggregate
Liquidation Amount of the outstanding New Capital Securities. The manner of
obtaining any such approval will be as set forth under "--Description of New
Capital Securities--Voting Rights; Amendment of New Trust Agreement." All
guarantees and agreements contained in the New Guarantee will bind the
successors, assigns, receivers, trustees and representatives of the
Corporation and will inure to the benefit of the holders of the New Capital
Securities then outstanding.
Events of Default
An event of default under the New Guarantee will occur upon the failure of
the Corporation to perform any of its payment obligations thereunder, or to
perform any non-payment obligation if such non-payment default remains
unremedied for 30 days after notice thereof to the Corporation. The holders of
not less than a majority in aggregate Liquidation Amount of the outstanding
New Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the New Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the New Guarantee.
Any registered holder of New Capital Securities may institute a legal
proceeding directly against the Corporation to enforce its rights under the
New Guarantee without first instituting a legal proceeding against the Issuer
Trust, the Guarantee Trustee or any other person or entity.
The Corporation, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
New Guarantee.
Information Concerning the Guarantee Trustee
The duties of the Guarantee Trustee will be subject to limitations and
qualifications substantially similar to those described with respect to the
Property Trustee under "--Description of New Capital Securities--Information
Concerning the Property Trustee."
For information concerning the relationships between Wilmington Trust
Company, the Guarantee Trustee, and the Corporation, see "--Description of New
Capital Securities--Information Concerning the Property Trustee."
Termination of New Guarantee
The New Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the New Capital Securities, upon full
payment of the amounts payable with respect to the New Capital Securities upon
liquidation of the Issuer Trust or upon distribution of New Junior
Subordinated Debentures to the holders of the New Capital Securities. The New
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of the New Capital Securities must restore
payment of any sums paid under the New Capital Securities or the New
Guarantee.
Governing Law
The New Guarantee will be governed by and construed in accordance with the
laws of the State of New York.
DESCRIPTION OF NEW EXPENSE AGREEMENT
Pursuant to the New Expense Agreement, the Corporation will irrevocably and
unconditionally guarantee to each person or entity to whom the Issuer Trust
becomes indebted or liable, the full payment of any costs, expenses or
liabilities of the Issuer Trust, other than obligations of the Issuer Trust to
pay to holders of the New Trust Securities the amounts distributable to such
holders pursuant to the terms of the New Trust Securities. The New Expense
Agreement will constitute an unsecured obligation of the Corporation and will
rank subordinate and junior in right of payment to all Senior Indebtedness of
the Corporation in the same manner as the New Guarantee and the New Junior
Subordinated Debentures.
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RELATIONSHIP AMONG THE NEW CAPITAL SECURITIES, THE NEW JUNIOR
SUBORDINATED DEBENTURES, THE NEW GUARANTEE AND THE NEW EXPENSE AGREEMENT
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the New Capital
Securities (to the extent the Issuer Trust has funds available for such
payment) are irrevocably guaranteed by the Corporation as and to the extent
set forth under "Description of New Securities--Description of New Guarantee."
Taken together, the Corporation's obligations under the New Junior
Subordinated Debentures, the New Junior Subordinated Indenture, the New Trust
Agreement, the New Expense Agreement and the New Guarantee provide, in the
aggregate, a full, irrevocable and unconditional guarantee of payments of
Distributions and other amounts due on the New Capital Securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the combined operation
of these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer Trust's obligations in respect of the
New Capital Securities. If and to the extent that the Corporation does not
make payments on the New Junior Subordinated Debentures, the Issuer Trust will
not have sufficient funds to pay Distributions or other amounts due on the New
Capital Securities. The New Guarantee does not cover payment of amounts
payable with respect to the New Capital Securities when the Issuer Trust does
not have sufficient funds to pay such amounts. In such event, the remedy of a
holder of the New Capital Securities is to institute a Direct Action against
the Corporation for enforcement of payment of the Corporation's obligations
under New Junior Subordinated Debentures having a principal amount equal to
the Liquidation Amount of the New Capital Securities held by such holder.
The obligations of the Corporation under the New Junior Subordinated
Debentures, the New Guarantee and the New Expense Agreement are subordinate
and junior in right of payment to all Senior Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments are made when due on the New Junior Subordinated
Debentures, such payments will be sufficient to cover Distributions and other
payments distributable on the New Capital Securities, primarily because (i)
the aggregate principal amount of the New Junior Subordinated Debentures will
be equal to the sum of the aggregate stated Liquidation Amount of the New
Capital Securities and New Common Securities; (ii) the interest rate and
interest and other payment dates on the New Junior Subordinated Debentures
will match the Distribution rate, Distribution Dates and other payment dates
for the New Capital Securities; (iii) the Corporation will pay for all and any
costs, expenses and liabilities of the Issuer Trust except the Issuer Trust's
obligations to holders of the New Trust Securities; and (iv) the New Trust
Agreement further provides that the Issuer Trust will not engage in any
activity that is not consistent with the limited purposes of the Issuer Trust.
Notwithstanding anything to the contrary in the New Junior Subordinated
Indenture, the Corporation has the right to set off any payment it is
otherwise required to make thereunder against and to the extent the
Corporation has theretofore made, or is concurrently on the date of such
payment making, a payment under the New Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF NEW CAPITAL SECURITIES
A holder of any New Capital Security may institute a legal proceeding
directly against the Corporation to enforce its rights under the New Guarantee
without first instituting a legal proceeding against the Guarantee Trustee,
the Issuer Trust or any other person or entity. See "Description of New
Securities--Description of New Guarantee."
A default or event of default under any Senior Indebtedness of the
Corporation would not constitute a default or Event of Default in respect of
the New Capital Securities. However, in the event of payment defaults under,
or acceleration of, Senior Indebtedness of the Corporation, the subordination
provisions of the New Junior Subordinated Indenture provide that no payments
may be made in respect of the New Junior Subordinated Debentures until such
Senior Indebtedness has been paid in full or any payment default thereunder
has been
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cured or waived. See "Description of New Securities--Description of New Junior
Subordinated Debentures--Subordination."
LIMITED PURPOSE OF ISSUER TRUST
The New Capital Securities represent preferred undivided beneficial
interests in the assets of the Issuer Trust, and the Issuer Trust exists for
the sole purpose of issuing the New Capital Securities and New Common
Securities, holding the New Junior Subordinated Debentures and engaging in
only those other activities necessary or incidental thereto. A principal
difference between the rights of a holder of a New Capital Security and a
holder of a New Junior Subordinated Debenture is that a holder of a New Junior
Subordinated Debenture is entitled to receive from the Corporation payments on
New Junior Subordinated Debentures held, while a holder of New Capital
Securities is entitled to receive Distributions or other amounts distributable
with respect to the New Capital Securities from the Issuer Trust (or from the
Corporation under the New Guarantee) only if and to the extent the Issuer
Trust has funds available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary dissolution, winding-up or liquidation of
the Issuer Trust, other than any such dissolution, winding-up or liquidation
involving the distribution of the New Junior Subordinated Debentures, after
satisfaction of liabilities to creditors of the Issuer Trust as required by
applicable law, the holders of the New Capital Securities will be entitled to
receive, out of assets held by the Issuer Trust, the Liquidation Distribution
in cash. See "Description of New Securities--Description of New Capital
Securities--Liquidation Distribution Upon Dissolution." Upon any voluntary or
involuntary liquidation or bankruptcy of the Corporation, the Property
Trustee, as the holder of the New Junior Subordinated Debentures, would be a
subordinated creditor of the Corporation, subordinated and junior in right of
payment to all Senior Indebtedness as set forth in the New Junior Subordinated
Indenture, but entitled to receive payment in full of all amounts payable with
respect to the New Junior Subordinated Debentures before any stockholders of
the Corporation receive payments or distributions. Since the Corporation is
the guarantor under the New Guarantee and has agreed under the New Expense
Agreement to pay for all costs, expenses and liabilities of the Issuer Trust
(other than the Issuer Trust's obligations to the holders of the New Trust
Securities), the positions of a holder of the New Capital Securities and a
holder of such New Junior Subordinated Debentures relative to other creditors
and to stockholders of the Corporation in the event of liquidation or
bankruptcy of the Corporation are expected to be substantially the same.
DESCRIPTION OF OLD SECURITIES
The terms of the Old Securities are identical in all material respects to
the New Securities, except that (i) the Old Securities have not been
registered under the Securities Act, are subject to certain restrictions on
transfer and are entitled to certain rights under the Registration Rights
Agreement (which rights will terminate upon consummation of the Exchange
Offer, except under limited circumstances); (ii) the New Capital Securities
will not provide for any increase in the Distribution rate thereon; and (iii)
the New Junior Subordinated Debentures will not provide for any increase in
the interest rate thereon. The Old Securities provide that, if the Exchange
Offer is not consummated within 35 days of the date hereof or, in certain
limited circumstances, if a shelf registration statement (the "Shelf
Registration Statement") with respect to the resale of the Old Capital
Securities is not declared effective on or prior to July 14, 1997, or under
certain other circumstances, then interest will accrue (in addition to the
stated interest rate on the New Junior Subordinated Debentures) at the rate of
0.25% per annum on the principal amount of the Old Junior Subordinated
Debentures and Distributions will accrue (in addition to the stated
Distribution rate on the Old Capital Securities) at the rate of 0.25% per
annum on the Liquidation Amount of the Old Capital Securities, for the period
from such dates until such time as the Exchange Offer is consummated or any
required Shelf Registration Statement is effective. The New Securities are
not, and upon consummation of the Exchange Offer the Old Securities will not
be, entitled to any such additional interest or Distributions. Accordingly,
holders of Old Capital Securities should review the information set forth
under "Risk Factors--Consequences of a Failure to Exchange Old Capital
Securities" and "Description of New Securities."
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material United States federal income tax
consequences of the purchase, ownership and disposition of New Capital
Securities. This summary only addresses the tax consequences to a person that
acquires New Capital Securities on their original issue at their original
offering price and that is (i) an individual citizen or resident of the United
States, (ii) a corporation or partnership organized in or under the laws of
the United States or any state thereof or the District of Columbia or (iii) an
estate or trust the income of which is subject to United States federal income
tax regardless of source (a "United States Person"). This summary does not
address all tax consequences that may be applicable to a United States Person
that is a beneficial owner of New Capital Securities, nor does it address the
tax consequences to (i) persons that are not United States Persons, (ii)
persons that may be subject to special treatment under United States federal
income tax law, such as banks, insurance companies, thrift institutions,
regulated investment companies, real estate investment trusts, tax-exempt
organizations and dealers in securities or currencies, (iii) persons that will
hold New Capital Securities as part of a position in a "straddle" or as part
of a "hedging," "conversion" or other integrated investment transaction for
United States federal income tax purposes, (iv) persons whose functional
currency is not the United States dollar or (v) persons that do not hold New
Capital Securities as capital assets.
The statements of law or legal conclusion set forth in this summary
constitute the opinion of Sullivan & Cromwell, counsel to the Corporation and
the Issuer Trust. This summary is based upon the Internal Revenue Code of
1986, as amended (the "Code"), Treasury regulations, Internal Revenue Service
("IRS") rulings and pronouncements and judicial decisions now in effect, all
of which are subject to change at any time. Such changes may be applied
retroactively in a manner that could cause the tax consequences to vary
substantially from the consequences described below, possibly adversely
affecting a beneficial owner of New Capital Securities. In particular,
legislation has been proposed that could adversely affect the Corporation's
ability to deduct interest on the New Junior Subordinated Debentures, which
may in turn permit the Corporation to shorten the Stated Maturity of the New
Junior Subordinated Debentures to a date not earlier than January 15, 2017 or
to cause a redemption of the New Capital Securities prior to January 15, 2007.
See "--Possible Tax Law Changes." The authorities on which this summary is
based are subject to various interpretations, and it is therefore possible
that the United States federal income tax treatment of the purchase, ownership
and disposition of New Capital Securities may differ from the treatment
described below.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS IN
LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF NEW
CAPITAL SECURITIES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX
LAWS.
CLASSIFICATION OF THE NEW JUNIOR SUBORDINATED DEBENTURES AND THE ISSUER TRUST
Under current law and assuming compliance with the terms of the New Trust
Agreement, the Issuer Trust will not be taxable as a corporation for United
States federal income tax purposes. As a result, each beneficial owner of New
Capital Securities (a "Securityholder") will be required to include in its
gross income its pro rata share of the interest income, including original
issue discount ("OID"), paid or accrued with respect to the New Junior
Subordinated Debentures whether or not cash is actually distributed to the
Securityholders. See "--Interest Income and Original Issue Discount." The New
Junior Subordinated Debentures will be classified as indebtedness of the
Corporation for United States federal income tax purposes.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under recently issued Treasury regulations applicable to debt instruments
issued on or after August 13, 1996 (the "Regulations"), a "remote" contingency
that stated interest will not be timely paid will be ignored in determining
whether a debt instrument is issued with OID. The Corporation believes that
the likelihood of its exercising its option to defer payments of interest is
remote. Based on the foregoing, the Corporation believes
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that the New Junior Subordinated Debentures will not be considered to be
issued with OID at the time of their original issuance and, accordingly, a
Securityholder should include in gross income such Securityholder's allocable
share of interest on the New Junior Subordinated Debentures in accordance with
such Securityholder's method of tax accounting. Because the discount at which
the Old Junior Subordinated Debentures were issued was less than 1/4 of 1
percent of the Old Junior Subordinated Debentures' and New Junior Subordinated
Debentures' stated redemption price at maturity times the number of complete
years to maturity of the Old Junior Subordinated Debentures and New Junior
Subordinated Debentures, such discount will constitute de minimis OID and will
not be required to be taken into account on a current basis. The following
discussion assumes that unless and until the Corporation exercises its option
to defer interest on the New Junior Subordinated Debentures, the New Junior
Subordinated Debentures will not be treated as issued with OID other than de
minimis OID.
Under the Regulations, if the Corporation exercised its option to defer any
payment of interest, the New Junior Subordinated Debentures would at that time
be treated as issued with OID, and all stated interest on the New Junior
Subordinated Debentures and de minimis OID would thereafter be treated as OID
as long as the New Junior Subordinated Debentures remained outstanding. In
such event, all of a Securityholder's taxable interest income with respect to
the New Junior Subordinated Debentures would be accounted for as OID on an
economic accrual basis regardless of such Securityholder's method of tax
accounting, and actual distributions of stated interest would not be reported
as taxable income. Consequently, a Securityholder would be required to include
in gross income OID even though the Corporation would not make any actual cash
payments during an Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the IRS, and it is possible that the IRS could take a
position contrary to the interpretation herein.
Because income on the New Capital Securities will constitute interest or
OID, corporate Securityholders will not be entitled to a dividends-received
deduction with respect to any income recognized with respect to the New
Capital Securities.
Subsequent uses of the term "interest" in this summary include income in the
form of OID.
DISTRIBUTION OF NEW JUNIOR SUBORDINATED DEBENTURES TO SECURITYHOLDERS
Under current law, a distribution by the Issuer Trust of the New Junior
Subordinated Debentures as described under the caption "Description of New
Securities--Description of New Capital Securities--Liquidation Distribution
Upon Dissolution" will be non-taxable and will result in the Securityholder
receiving directly his or her pro rata share of the New Junior Subordinated
Debentures previously held indirectly through the Issuer Trust, with a holding
period and aggregate tax basis equal to the holding period and aggregate tax
basis such Securityholder had in its New Capital Securities before such
distribution. If, however, the liquidation of the Issuer Trust were to occur
because the Issuer Trust is subject to United States federal income tax with
respect to income accrued or received on the New Junior Subordinated
Debentures, the distribution of New Junior Subordinated Debentures to
Securityholders by the Issuer Trust would be a taxable event to the Issuer
Trust and each Securityholder, and each Securityholder would recognize gain or
loss as if the Securityholder had exchanged its New Capital Securities for the
New Junior Subordinated Debentures it received upon the liquidation of the
Issuer Trust. A Securityholder will include interest in respect of New Junior
Subordinated Debentures received from the Issuer Trust in the manner described
above under "--Interest Income and Original Issue Discount."
SALES OR REDEMPTIONS OF NEW CAPITAL SECURITIES
A Securityholder that sells (including a redemption for cash) New Capital
Securities will recognize gain or loss equal to the difference between its
adjusted tax basis in the New Capital Securities and the amount realized on
the sale of such New Capital Securities. Assuming that the Corporation does
not exercise its option to defer payment of interest on the New Junior
Subordinated Debentures, a Securityholder's adjusted tax basis in the New
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Capital Securities generally will be its initial purchase price. If the New
Junior Subordinated Debentures are deemed to be issued with OID as a result of
the Corporation's deferral of any interest payment, a Securityholder's
adjusted tax basis in the New Capital Securities generally will be its initial
purchase price, increased by OID previously included in such Securityholder's
gross income to the date of disposition and decreased by distributions or
other payments received on the New Capital Securities since and including the
date of the first Extension Period. Such gain or loss generally will be a
capital gain or loss (except to the extent any amount realized is treated as a
payment of accrued interest with respect to such Securityholder's pro rata
share of the New Junior Subordinated Debentures required to be included in
income) and generally will be a long-term capital gain or loss if the New
Capital Securities have been held for more than one year.
Should the Corporation exercise its option to defer any payment of interest
on the New Junior Subordinated Debentures, the New Capital Securities may
trade at a price that does not accurately reflect the value of accrued but
unpaid interest with respect to the underlying New Junior Subordinated
Debentures. In the event of such a deferral, a Securityholder who disposes of
its New Capital Securities between record dates for payments of distributions
thereon will be required to include in income as ordinary income accrued but
unpaid interest on the New Junior Subordinated Debentures to the date of
disposition as OID, but may not receive the cash related thereto. However,
such Securityholder will add such amount to its adjusted tax basis in the New
Capital Securities. To the extent the selling price is less than the
Securityholder's adjusted tax basis, such Securityholder will recognize a
capital loss. Subject to certain limited exceptions, capital losses cannot be
applied to offset ordinary income for United States federal income tax
purposes.
Although the matter is not free from doubt, an exchange of New Capital
Securities for Old Capital Securities (as defined below) should not be taxable
to beneficial owners of the Old Capital Securities.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest income paid or accrued on the New Capital Securities
held of record by United States Persons (other than corporations and other
exempt Securityholders) will be reported to the IRS. "Backup" withholding at a
rate of 31% will apply to payments of interest to non-exempt United States
Persons unless the Securityholder furnishes its taxpayer identification number
in the manner prescribed in applicable Treasury regulations, certifies that
such number is correct, certifies as to no loss of exemption from backup
withholding and meets certain other conditions.
Payment of the proceeds from the disposition of New Capital Securities to or
through the United States office of a broker is subject to information
reporting and backup withholding unless the Securityholder establishes an
exemption from information reporting and backup withholding.
Any amounts withheld from a Securityholder under the backup withholding
rules will be allowed as a refund or a credit against such Securityholder's
United States federal income tax liability, provided the required information
is furnished to the IRS.
It is anticipated that income on the New Capital Securities will be reported
to Securityholders on Form 1099 and mailed to Securityholders by January 31
following each calendar year.
POSSIBLE TAX LAW CHANGES
On February 6, 1997, the Budget Proposal was released. If enacted, the
Budget Proposal would generally deny interest deductions for interest on an
instrument issued by a corporation that has a maximum term of more than 15
years and that is not shown as indebtedness on the separate balance sheet of
the issuer or, where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. The above-described provision of the Budget Proposal is
proposed to be effective generally for instruments issued on or after the date
of first Congressional committee action. If this provision were to apply to
the New Junior
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Subordinated Debentures, the Corporation would be unable to deduct interest on
the New Junior Subordinated Debentures. Under current law, the Corporation
will be able to deduct interest on the New Junior Subordinated Debentures.
There can be no assurance, however, that current or future legislative
proposals or final legislation will not affect the ability of the Corporation
to deduct interest on the New Junior Subordinated Debentures. Such a change
could give rise to a Tax Event, which may permit the Corporation, if certain
conditions are met, shorten the maturity of the New Junior Subordinated
Debentures to a date not earlier than January 15, 2017 or to cause a
redemption of the New Capital Securities before January 15, 2007, as described
more fully in this Prospectus under "Description of New Securities--
Description of New Junior Subordinated Debentures--Redemption," "Description
of New Securities--Description of New Capital Securities--Redemption" and
"Description of New Securities--Description of New Junior Subordinated
Debentures--Conditional Right to Shorten Maturity or Redeem Upon a Tax Event,
Investment Company Event or Capital Treatment Event."
It is unclear whether an exercise by the Corporation of its right to shorten
the maturity of the New Junior Subordinated Debentures following a Tax Event
would be a taxable event to Securityholders.
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CERTAIN ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") (a "Plan"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an
investment in the New Capital Securities. Accordingly, among other factors,
the fiduciary should consider whether the investment would satisfy the
prudence and diversification requirements of ERISA and would be consistent
with the documents and instruments governing the Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well as
individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest" under ERISA or
"disqualified persons" under the Code ("Parties in Interest") with respect to
such Plan. A violation of these "prohibited transaction" rules may result in
an excise tax or other liabilities under ERISA and/or Section 4975 of the Code
for such persons, unless exemptive relief is available under an applicable
statutory or administrative exemption. Employee benefit plans that are
governmental plans (as defined in Section 3(32) of ERISA), certain church
plans (as defined in Section 3(33) of ERISA) or foreign plans (as described in
Section 4(b)(5) of ERISA) are not subject to the requirements of ERISA or
Section 4975 of the Code; governmental plans may be subject to similar
provisions under applicable state laws.
Under a regulation (the "Plan Assets Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Issuer Trust would be
deemed to be "plan assets" of a Plan for purposes of ERISA and Section 4975 of
the Code if "plan assets" of the Plan were used to acquire an equity interest
in the Issuer Trust and no exceptions were applicable under the Plan Assets
Regulation. An "equity interest" is defined under the Plan Assets Regulation
as any interest in an entity other than an instrument that is treated as
indebtedness under applicable local law and that has no substantial equity
features, and specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the assets
of the Issuer Trust would not be deemed to be "plan assets" of investing Plans
if, immediately after the most recent acquisition of any equity interest in
the Issuer Trust, less than 25% of the value of each class of equity interests
in the Issuer Trust were held by Plans, other employee benefit plans not
subject to ERISA or Section 4975 of the Code (such as governmental, church and
foreign plans), and entities holding assets deemed to be "plan assets" of any
Plan (collectively, "Benefit Plan Investors"), or if the New Capital
Securities were "publicly-offered securities" for purposes of the Plan Assets
Regulation. No assurance can be given that the value of the New Capital
Securities held by Benefit Plan Investors will be less than 25% of the total
value of such New Capital Securities at the completion of the initial offering
or thereafter, and no monitoring or other measures will be taken with respect
to the satisfaction of the conditions to this exception. Furthermore, it is
not anticipated that the New Capital Securities would be considered to be
"publicly-offered securities" under the Plan Assets Regulation. All of the New
Common Securities will be purchased and initially held by the Corporation.
Certain transactions involving the Issuer Trust and/or the New Capital
Securities and the New Junior Subordinated Debentures could be deemed to
constitute direct or indirect prohibited transactions under ERISA and Section
4975 of the Code with respect to a Plan if the New Capital Securities were
acquired with "plan assets" of such Plan and the assets of the Issuer Trust
were deemed to be "plan assets" of Plans investing in the Issuer Trust. For
example, if the Corporation is a Party in Interest with respect to an
investing Plan (either directly or by reason of its ownership of Bankers or
other subsidiaries), extensions of credit between the Corporation and the
Issuer Trust (as represented by the New Junior Subordinated Debentures and the
New Guarantee) would likely be prohibited by Section 406(a)(1)(B) of ERISA and
Section 4975(c)(1)(B) of the Code, unless exemptive relief were available
under an applicable administrative exemption, as discussed below. In addition,
if the Corporation were considered to be a fiduciary with respect to the
Issuer Trust as a result of certain powers it holds (such as the powers to
remove and replace the Property Trustee and the Administrative Trustees), the
optional redemption or acceleration of the New Junior Subordinated Debentures
could be considered to be
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prohibited transactions under Section 406(b) of ERISA and Section
4975(c)(1)(E) of the Code. In order to avoid such prohibited transactions,
each investing Plan, by purchasing the New Capital Securities, will be deemed
to have directed the Issuer Trust to invest in the New Junior Subordinated
Debentures and to have appointed the Property Trustee.
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief if required for direct or indirect
prohibited transactions that may arise from the purchase or holding of the New
Capital Securities if assets of the Issuer Trust were deemed to be "plan
assets" of Plans investing in the Issuer Trust as described above. Those class
exemptions are PTCE 96-23 (for certain transactions determined by in-house
asset managers), PTCE 95-60 (for certain transactions involving insurance
company general accounts), PTCE 91-38 (for certain transactions involving bank
collective investment funds), PTCE 90-1 (for certain transactions involving
insurance company separate accounts), and PTCE 84-14 (for certain transactions
determined by independent qualified professional asset managers).
Because the New Capital Securities may be deemed to be equity interests in
the Issuer Trust for purposes of applying ERISA and Section 4975 of the Code,
the New Capital Securities may not be purchased and should not be held by any
Plan, any entity whose underlying assets include "plan assets" by reason of
any Plan's investment in the entity (a "Plan Asset Entity") or any person
investing "plan assets" of any Plan, unless such purchaser or holder is
eligible for the exemptive relief available under PTCE 96-23, 95-60, 91-38,
90-1 or 84-14. Any purchaser or holder of the New Capital Securities or any
interest therein will be deemed to have represented by its purchase and
holding thereof that it either (a) is not a Plan or a Plan Asset Entity and is
not purchasing such securities on behalf of or with "plan assets" of any Plan
or (b) is eligible for the exemptive relief available under PTCE 96-23, 95-60,
91-38, 90-1 or 84-14.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is
particularly important that fiduciaries or other persons considering
purchasing the New Capital Securities on behalf of or with "plan assets" of
any Plan consult with their counsel regarding the potential consequences if
the assets of the Issuer Trust were deemed to be "plan assets" and the
availability of exemptive relief under PTCE 96-23, 95-60, 91-38, 90-1 or 84-
14.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives New Capital Securities for its own account
in connection with the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. This
Prospectus may be used by Participating Broker-Dealers during the period
referred to below in connection with resales of New Capital Securities
received in exchange for Old Capital Securities if such Old Capital Securities
were acquired by such Participating Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities. The Issuer
Trust has agreed that this Prospectus may be used by a Participating Broker-
Dealer in connection with resales of such New Capital Securities for a period
ending 90 days after the Expiration Date (subject to extension under certain
limited circumstances described herein) or, if earlier, when all such New
Capital Securities have been disposed of by such Participating Broker-Dealer.
See "The Exchange Offer--Resales of New Capital Securities." The Issuer Trust
will not receive any proceeds from the issuance of the New Capital Securities
offered hereby. New Capital Securities received by broker-dealers for their
own accounts in connection with the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Capital Securities or
a combination of such methods of resale, at market prices prevailing at the
time of resale at prices related to such prevailing market prices or at
negotiated prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer and/or the purchasers
of any such New Capital Securities. Any broker-dealer that resells New Capital
Securities that were received by it for its own account in connection with the
Exchange Offer and any broker or dealer that participates in a distribution of
such New Capital Securities may be deemed to be an "underwriter" within the
meaning of the Securities Act, and any profit on any such resale of New
Capital Securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
This Prospectus may be used by BT Securities Corporation, a wholly owned
subsidiary of the Corporation and an affiliate of the Issuer Trust, in
connection with offers and sales related to market-making transactions in New
Securities effected from time to time after the commencement of the Exchange
Offer. BT Securities Corporation may act as principal or agent in such
transactions, including as agent for the counterparty when acting as principal
or as agent for both counterparties, and may receive compensation in the form
of discounts and commissions, including from both counterparties when it acts
as agent for both. Such sales will be made at prevailing market prices at the
time of sale, at prices related thereto or at negotiated prices.
The Corporation may agree to indemnify BT Securities Corporation with
respect to certain liabilities in connection with this Prospectus, including
liabilities under the Securities Act.
Because the National Association of Securities Dealers, Inc. (the "NASD") is
expected to view the New Capital Securities as interests in a direct
participation program, any offering of the New Capital Securities by any NASD
member using this Prospectus will be made in compliance with Rule 2810 of the
NASD's Conduct Rules. In addition, no NASD member may execute any transaction
in New Capital Securities in a discretionary account without the prior written
approval of the transaction by the customer.
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VALIDITY OF NEW SECURITIES
Certain matters of Delaware law relating to the validity of the New Capital
Securities, the enforceability of the New Trust Agreement and the creation of
the Issuer Trust will be passed upon by Richards, Layton & Finger, special
Delaware counsel to the Corporation and the Issuer Trust. The validity of the
New Guarantee and the New Junior Subordinated Debentures will be passed upon
for the Corporation by Sullivan & Cromwell, New York, New York. Certain
matters relating to United States federal income tax considerations will be
passed upon for the Corporation by Sullivan & Cromwell. Richards, Layton &
Finger is also serving as counsel to Wilmington Trust Company, in its various
capacities, in connection with the Exchange Offer and the issuance of the New
Capital Securities. Richards, Layton & Finger performs other services for the
Corporation and Wilmington Trust Company from time to time.
EXPERTS
The consolidated financial statements of the Corporation and subsidiaries
for the year ended December 31, 1995, appearing in the Corporation's Annual
Report on Form 10-K for the year ended December 31, 1995, 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 accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the By-Laws of Bankers Trust New York Corporation provides as
follows:
Section 5.01 The corporation shall, to the fullest extent permitted by
Section 721 of the New York Business Corporation Law, indemnify any person who
is or was made, or threatened to be made, a party to an action or proceeding,
whether civil or criminal, whether involving any actual or alleged breach of
duty, neglect or error, any accountability, or any actual or alleged
misstatement, misleading statement or other act or omission and whether
brought or threatened in any court or administrative or legislative body or
agency, including an action by or in the right of the corporation to procure a
judgment in its favor and an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any partnership,
joint venture, trust, employee benefit plan or other enterprise, which any
director or officer of the corporation is serving or served in any capacity at
the request of the corporation by reason of the fact that he, his testator or
intestate, is or was a director or officer of the corporation, or is serving
or served such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, against judgments, fines,
amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
Section 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
Section 5.03 The corporation shall, from time to time, reimburse or advance
to any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, upon receipt of a written undertaking
by or on behalf of such person to repay such amount(s) if a judgment or other
final adjudication adverse to 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.
II-1
<PAGE>
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 Section 5.01 and 5.03, notwithstanding any provision of the New
York Business Corporation Law to the contrary.
With certain limitations, Sections 721 through 726 of the New York Business
Corporation Law permit a corporation to indemnify a director or officer made a
party to an action (i) by a corporation or in its right in order to procure a
judgment in its favor unless he shall have breached his duties, or (ii) other
than an action by or in the right of the corporation in order to procure a
judgment in its favor if such director or officer acted in good faith and in a
manner he reasonably believed to be in or, in certain cases, not opposed to
such corporation's best interests, and additionally, in criminal actions, has
no reasonable cause to believe his conduct was unlawful.
In addition, a Directors and Officer 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.
Under the Amended and Restated Trust Agreement (Exhibit 4.5 to this
Registration Statement), Bankers Trust New York Corporation will agree to
indemnify each of the trustees of the Issuer Trust and any predecessor
trustees, and to hold such trustees harmless, against any loss, damage,
claims, liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration of
the Trust Agreement, including the costs and expenses of defense against any
claim or liability in connection with the exercise or performance of any of
their powers or duties under the Trust Agreement.
II-2
<PAGE>
ITEM 21. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.1 --Junior Subordinated Indenture, dated as of February 5, 1997, between Bankers
Trust New York Corporation and Wilmington Trust Company, as Trustee.
4.2 --Form of 7.90% Junior Subordinated Deferrable Interest Debenture, Series B1.
4.3 --Certificate of Trust of BT Capital Trust B.
4.4 --Trust Agreement of BT Capital Trust B.
4.5 --Form of Amended and Restated Trust Agreement of BT Capital Trust B.
4.6 --Form of New Capital Security Certificate for BT Capital Trust B (included as
Exhibit E of Exhibit 4.5).
4.7 --Form of New Guarantee Agreement.
4.8 --Exchange and Registration Rights Agreement, dated as of January 16, 1997, among
the Corporation, the Old Issuer Trust and the Initial Purchaser.
*5.1 --Opinion of Sullivan & Cromwell as to the legality of the New Junior Subordinated
Debentures and the New Guarantee.
*5.2 --Opinion of Richards, Layton & Finger as to the legality of the New Capital
Securities.
*8.1 --Opinion of Sullivan & Cromwell as to certain federal income tax matters.
12.1 --Computation of Consolidated Ratios of Earnings to Fixed Charges.
12.2 --Computation of Consolidated Ratios of Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements.
23.1 --Consent of Ernst & Young LLP.
*23.2 --Consent of Sullivan & Cromwell (contained in the opinion filed as Exhibit 5.1 to
this Registration Statement).
*23.3 --Consent of Richards, Layton & Finger (contained in the opinion filed as Exhibit
5.2 to this Registration Statement).
*23.4 --Consent of Sullivan & Cromwell (contained in the opinion filed as Exhibit 8.1 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
Wilmington Trust Company to act as trustee under the New Junior Subordinated
Indenture.
25.2 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Amended and Restated Trust
Agreement of BT Capital Trust B.
25.3 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the New Guarantee.
99.1 --Form of Letter of Transmittal and instructions thereto.
99.2 --Form of Notice of Guaranteed Delivery.
*99.3 --Form of Exchange Agency Agreement.
</TABLE>
- --------
*To be filed by amendment.
**Incorporated by reference.
*** Previously filed.
II-3
<PAGE>
ITEM 22. UNDERTAKINGS.
Each of the undersigned registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of a
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of a
registrant pursuant to the foregoing provisions, or otherwise, the registrants
have 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, each 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.
Each of the undersigned registrants hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Item 4, 10(b), 11 or 13 of this form within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
Each of the undersigned registrants hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
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 4TH DAY OF MARCH, 1997.
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 BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
SIGNATURE TITLE DATE
Frank N. Newman* Chairman of the March 4, 1997
- ------------------------------------- Board, Chief
(FRANK N. NEWMAN) Executive Officer
and Director
(Principal
Executive Officer)
Richard H. Daniel* Executive Vice March 4, 1997
- ------------------------------------- President and Chief
(RICHARD H. DANIEL) Financial Officer
and Controller
(Principal
Financial Officer)
Geoffrey M. Fletcher* Senior Vice March 4, 1997
- ------------------------------------- President
(GEOFFREY M. FLETCHER) (Principal
Accounting Officer)
George B. Beitzel* Director March 4, 1997
- -------------------------------------
(GEORGE B. BEITZEL)
Philip A. Griffiths* Director March 4, 1997
- -------------------------------------
(PHILIP A. GRIFFITHS)
William R. Howell* Director March 4, 1997
- -------------------------------------
(WILLIAM R. HOWELL)
Jon M. Huntsman* Director March 4, 1997
- -------------------------------------
(JON M. HUNTSMAN)
II-5
<PAGE>
SIGNATURE TITLE DATE
Vernon E. Jordan, Jr.* Director March 4, 1997
- -------------------------------------
(VERNON E. JORDAN, JR.)
Hamish Maxwell* Director March 4, 1997
- -------------------------------------
(HAMISH MAXWELL)
N.J. Nicholas Jr.* Director March 4, 1997
- -------------------------------------
(N.J. NICHOLAS JR.)
Russell E. Palmer* Director March 4, 1997
- -------------------------------------
(RUSSELL E. PALMER)
Donald L. Staheli* Director March 4, 1997
- -------------------------------------
(DONALD L. STAHELI)
Patricia C. Stewart* Director March 4, 1997
- -------------------------------------
(PATRICIA C. STEWART)
Director March 4, 1997
- -------------------------------------
(GEORGE J. VOJTA)
Paul A. Volcker* Director March 4, 1997
- -------------------------------------
(PAUL A. VOLCKER)
/s/ Duncan P. Hennes
*By _________________________________
(DUNCAN P. HENNES, ATTORNEY-IN-FACT)
II-6
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
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 4TH DAY OF MARCH, 1997.
BT Capital Trust B
By: Bankers Trust New York
Corporation,
as Depositor
/s/ Duncan P. Hennes
By: _________________________________
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.1 --Junior Subordinated Indenture, dated as of February 5, 1997, between Bankers
Trust New York Corporation and Wilmington Trust Company, as Trustee.
4.2 --Form of 7.90% Junior Subordinated Deferrable Interest Debenture, Series B1.
4.3 --Certificate of Trust of BT Capital Trust B.
4.4 --Trust Agreement of BT Capital Trust B.
4.5 --Form of Amended and Restated Trust Agreement of BT Capital Trust B.
4.6 --Form of New Capital Security Certificate for BT Capital Trust B (included as
Exhibit E of Exhibit 4.5).
4.7 --Form of New Guarantee Agreement.
4.8 --Exchange and Registration Rights Agreement, dated as of January 16, 1997, among
the Corporation, the Old Issuer Trust and the Initial Purchaser.
*5.1 --Opinion of Sullivan & Cromwell as to the legality of the New Junior Subordinated
Debentures and the New Guarantee.
*5.2 --Opinion of Richards, Layton & Finger as to the legality of the New Capital
Securities.
*8.1 --Opinion of Sullivan & Cromwell as to certain federal income tax matters.
12.1 --Computation of Consolidated Ratios of Earnings to Fixed Charges.
12.2 --Computation of Consolidated Ratios of Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements.
23.1 --Consent of Ernst & Young LLP.
*23.2 --Consent of Sullivan & Cromwell (contained in the opinion filed as Exhibit 5.1 to
this Registration Statement).
*23.3 --Consent of Richards, Layton & Finger (contained in the opinion filed as Exhibit
5.2 to this Registration Statement).
*23.4 --Consent of Sullivan & Cromwell (contained in the opinion filed as Exhibit 8.1 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
Wilmington Trust Company to act as trustee under the New Junior Subordinated
Indenture.
25.2 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the Amended and Restated Trust
Agreement of BT Capital Trust B.
25.3 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Wilmington Trust Company to act as trustee under the New Guarantee.
99.1 --Form of Letter of Transmittal and instructions thereto.
99.2 --Form of Notice of Guaranteed Delivery.
*99.3 --Form of Exchange Agency Agreement.
</TABLE>
- --------
*To be filed by amendment.
**Incorporated by reference.
*** Previously filed.
<PAGE>
EXHIBIT 4.1
================================================================================
BANKERS TRUST NEW YORK CORPORATION
TO
WILMINGTON TRUST COMPANY,
as Trustee
----------------
JUNIOR SUBORDINATED INDENTURE
Dated as of February 5, 1997
----------------
================================================================================
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318 OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -----------------
<S> <C> <C>
(S) 310 (a) (1), (2) and (5)....................... 6.9
(a) (3).................................... Not Applicable
(a) (4).................................... Not Applicable
(b)........................................ 6.8
........................................... 6.10
(c)........................................ Not Applicable
(S) 311 (a)........................................ 6.13
(b)........................................ 6.13
(b) (2).................................... 7.3(a)(2)
(S) 312 (a)........................................ 7.1
........................................... 7.2(a)
(b)........................................ 7.2(b)
(c)........................................ 7.2(c)
(S) 313 (a)........................................ 7.3(a)
(b)........................................ 7.3(b)
(c)........................................ 7.3(a), 7.3(b)
(d)........................................ 7.3(c)
(S) 314 (a) (1), (2) and (3)....................... 7.4
(a) (4).................................... 10.4
(b)........................................ Not Applicable
(c) (1).................................... 1.2
(c) (2).................................... 1.2
(c) (3).................................... Not Applicable
(d)........................................ Not Applicable
(e)........................................ 1.2
(f)........................................ Not Applicable
(S) 315 (a)........................................ 6.1(a)
(b)........................................ 6.2
........................................... 7.3(a)
(c)........................................ 6.1(b)
(d)........................................ 6.1(c)
(d) (1).................................... 6.1(a) (1)
(d) (2).................................... 6.1(c) (2)
(d) (3).................................... 6.1(c) (3)
(e)........................................ 5.14
(S) 316 (a)........................................ 1.1
(a) (1) (A)................................ 5.12
(a) (1) (B)................................ 5.13
(a) (2).................................... Not Applicable
(b)........................................ 5.8
(c)........................................ 1.4(f)
(S) 317 (a) (1).................................... 5.3
(a) (2).................................... 5.4
(b)........................................ 10.3
(S) 318 (a)........................................ 1.7
</TABLE>
- -------------------
Note: This reconciliation and the sheet shall not, or any purpose, be deemed to
be a part of the Indenture and shall not affect the interpretation of any of its
terms or provisions.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.1. Definitions..................................................... 1
Section 1.2. Compliance Certificate and Opinions............................. 11
Section 1.3. Forms of Documents Delivered to Trustee......................... 12
Section 1.4. Acts of Holders................................................. 12
Section 1.5. Notices, Etc. to Trustee and Corporation........................ 14
Section 1.6. Notice to Holders; Waiver....................................... 15
Section 1.7. Conflict with Trust Indenture Act............................... 15
Section 1.8. Effect of Headings and Table of Contents........................ 16
Section 1.9. Successors and Assigns.......................................... 16
Section 1.10. Separability Clause............................................. 16
Section 1.11. Benefits of Indenture........................................... 16
Section 1.12. Governing Law................................................... 16
Section 1.13. Non-Business Days............................................... 16
ARTICLE II
Security Forms
Section 2.1. Forms Generally.................................................. 17
Section 2.2. Form of Face of Security......................................... 17
Section 2.3. Form of Reverse of Security...................................... 21
Section 2.4. Additional Provisions Required in Global Security................ 25
Section 2.5. Form of Trustee's Certificate of Authentication.................. 25
ARTICLE III
The Securities
Section 3.1. Title and Terms.................................................. 25
Section 3.2. Denominations.................................................... 29
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Section 3.3. Execution, Authentication, Delivery and Dating................... 29
Section 3.4. Temporary Securities............................................. 31
Section 3.5. Global Securities................................................ 31
Section 3.6. Registration, Transfer and Exchange Generally.................... 32
Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities................. 34
Section 3.8. Payment of Interest and Additional Interest; Interest Rights
Preserved........................................................ 34
Section 3.9. Persons Deemed Owners............................................ 36
Section 3.10. Cancellation..................................................... 36
Section 3.11. Computation of Interest.......................................... 37
Section 3.12. Deferrals of Interest Payment Dates.............................. 37
Section 3.13. Right of Set-Off................................................. 38
Section 3.14. Agreed Tax Treatment............................................. 39
Section 3.15. Shortening or Extension of Stated Maturity....................... 39
Section 3.16. CUSIP Numbers.................................................... 39
ARTICLE IV
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture.......................... 40
Section 4.2. Application of Trust Money....................................... 41
ARTICLE V
Remedies
Section 5.1. Events of Default................................................ 41
Section 5.2. Acceleration of Maturity; Rescission and Annulment............... 42
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.. 44
Section 5.4. Trustee May File Proofs of Claim................................. 45
Section 5.5. Trustee May Enforce Claim Without Possession of Securities....... 46
Section 5.6. Application of Money Collected................................... 46
Section 5.7. Limitation on Suits.............................................. 46
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities... 47
Section 5.9. Restoration of Rights and Remedies............................... 48
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Section 5.10. Rights and Remedies Cumulative................................... 48
Section 5.11. Delay or Omission Not Waiver..................................... 48
Section 5.12. Control by Holders............................................... 48
Section 5.13. Waiver of Past Defaults.......................................... 49
Section 5.14. Undertaking for Costs............................................ 50
Section 5.15. Waiver of Usury, Stay or Extension Laws.......................... 50
ARTICLE VI
The Trustee
Section 6.1. Certain Duties and Responsibilities.............................. 50
Section 6.2. Notice of Defaults............................................... 51
Section 6.3. Certain Rights of Trustee........................................ 52
Section 6.4. Not Responsible for Recitals or Issuance of Securities........... 53
Section 6.5. May Hold Securities.............................................. 53
Section 6.6. Money Held in Trust.............................................. 53
Section 6.7. Compensation and Reimbursement................................... 53
Section 6.8. Disqualification; Conflicting Interests.......................... 54
Section 6.9. Corporate Trustee Required; Eligibility.......................... 54
Section 6.10. Resignation and Removal; Appointment of Successor................ 55
Section 6.11. Acceptance of Appointment by Successor........................... 56
Section 6.12. Merger, Conversion, Consolidation or Succession to Business...... 57
Section 6.13. Preferential Collection of Claims Against Corporation............ 58
Section 6.14. Appointment of Authenticating Agent.............................. 58
ARTICLE VII
Holder's Lists and Reports by Trustee And Corporation
Section 7.1. Corporation to Furnish Trustee Names and Addresses of Holders..... 60
Section 7.2. Preservation of Information, Communications to Holders............ 60
Section 7.3. Reports by Trustee................................................ 61
Section 7.4. Reports by Corporation............................................ 61
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Corporation May Consolidate, Etc., Only on Certain Terms......... 61
Section 8.2. Successor Corporation Substituted................................ 62
ARTICLE IX
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of Holders............... 63
Section 9.2. Supplemental Indentures with Consent of Holders.................. 64
Section 9.3. Execution of Supplemental Indentures............................. 65
Section 9.4. Effect of Supplemental Indentures................................ 66
Section 9.5. Conformity with Trust Indenture Act.............................. 66
Section 9.6. Reference in Securities to Supplemental Indentures............... 66
ARTICLE X
Covenants
Section 10.1. Payment of Principal, Premium and Interest....................... 66
Section 10.2. Maintenance of Office or Agency.................................. 67
Section 10.3. Money for Security Payments to be Held in Trust.................. 67
Section 10.4. Statement as to Compliance....................................... 69
Section 10.5. Waiver of Certain Covenants...................................... 69
Section 10.6. Additional Sums.................................................. 69
Section 10.7. Additional Covenants............................................. 70
Section 10.8. Original Issue Discount.......................................... 71
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE XI
Redemption of Securities
Section 11.1. Applicability of This Article.................................... 71
Section 11.2. Election to Redeem; Notice to Trustee............................ 72
Section 11.3. Selection of Securities to be Redeemed........................... 72
Section 11.4. Notice of Redemption............................................. 72
Section 11.5. Deposit of Redemption Price...................................... 74
Section 11.6. Payment of Securities Called for Redemption...................... 74
Section 11.7. Right of Redemption of Securities Initially Issued to an
Issuer Trust..................................................... 74
ARTICLE XII
Sinking Funds
Section 12.1. Applicability of Article......................................... 75
Section 12.2. Satisfaction of Sinking Fund Payments with Securities............ 75
Section 12.3. Redemption of Securities for Sinking Fund........................ 76
ARTICLE XIII
Subordination of Securities
Section 13.1. Securities Subordinate to Senior Indebtedness.................... 77
Section 13.2. No Payment When Senior Indebtedness in Default; Payment
Over of Proceeds Upon Dissolution, Etc........................... 78
Section 13.3. Payment Permitted If No Default.................................. 80
Section 13.4. Subrogation to Rights of Holders of Senior Indebtedness.......... 80
Section 13.5. Provisions Solely to Define Relative Rights...................... 80
Section 13.6. Trustee to Effectuate Subordination.............................. 81
Section 13.7. No Waiver of Subordination Provisions............................ 81
Section 13.8. Notice to Trustee................................................ 82
Section 13.9. Reliance on Judicial Order or Certificate of Liquidating Agent... 82
Section 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness......... 83
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Section 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights................................ 83
Section 13.12. Article Applicable to Paying Agents............................. 83
Section 13.13. Securities to Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases.............. 83
</TABLE>
-vi-
<PAGE>
JUNIOR SUBORDINATED INDENTURE, dated as of February 5, 1997, between
BANKERS TRUST NEW YORK CORPORATION, a New York corporation (the "Corporation"),
having its principal office at 130 Liberty Street, New York, New York 10006, and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Trustee (the
"Trustee").
Recitals of the Corporation
Whereas, the Corporation has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in series (the "Securities") of
substantially the tenor hereinafter provided, including Securities issued to
evidence loans made to the Corporation with the proceeds from the issuance from
time to time by one or more business trusts (each an "Issuer Trust") of
preferred undivided beneficial interests in the assets of such Issuer Trusts
(the "Preferred Securities") and common undivided interests in the assets of
such Issuer Trusts (the "Common Securities"), and to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered; and
Whereas, 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 covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) 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;
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(c) The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(e) Whenever the context may require, any gender shall be deemed to
include the others;
(f) 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
(g) The words "hereby", "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 1.4.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date or that has been deferred during an
Extension Period, and that shall accrue at the rate per annum specified or
determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means any additional taxes, duties and other
governmental charges to which an Issuer Trust has become subject from time to
time as a result of a Tax Event.
"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.
"Agent Member" means any member of, or participant in, the Depositary.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Bankruptcy Code" means Title 11 of the United States Code or any successor
statute thereto, in each case as amended from time to time.
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"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 a committee designated by the board of directors of the
Corporation (or such committee), 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, or officers of the Corporation to which authority to act on
behalf of the Board of Directors has been delegated, and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to Securities of a
series initially issued to an Issuer Trust for so long as such Securities are
held by such Issuer Trust, the Corporate Trust Office (as defined in the related
Declaration of Trust) of the Property Trustee or the Delaware Trustee under the
related Declaration of Trust, is closed for business.
"Capital Treatment Event" means, in respect of any Issuer Trust, the
reasonable determination by the Corporation (as evidenced by an Officers'
Certificate delivered to the Trustee) that, as a result of the occurrence of any
amendment to, or change (including any announced proposed change) in, the laws
(or any rules or regulations thereunder) of the United States or any political
subdivision thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws,
rules or regulations, which amendment or change is effective or which
pronouncement, action or decision is announced on or after the date of the
issuance of the Preferred Securities of such Issuer Trust, there is more than an
insubstantial risk that the Corporation will not be entitled to treat an amount
equal to the aggregate Liquidation Amount (as such term is defined in the
related Declaration of Trust) of such Preferred Securities as "Tier 1 Capital"
(or the then equivalent thereof) for purposes of the capital adequacy guidelines
of the Board of Governors of the Federal Reserve System, as then in effect and
applicable to the Corporation.
"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 Securities and Exchange Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Securities" has the meaning specified in the first recital of this
Indenture.
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"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered.
"corporation" includes a corporation, association, company, limited
liability 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 corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor corporation.
"Corporation Request" and "Corporation Order" mean, respectively, a written
request or order signed in the name of the Corporation by its Chairman of the
Board of Directors, its Vice Chairman of the Board of Directors, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent and without
duplication, (i) every obligation of such Person for money borrowed; (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person; (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such Person;
(vi) all indebtedness of the Corporation, whether incurred on or prior to the
date of this Indenture or thereafter incurred, for claims in respect of
derivative products, including interest rate, foreign exchange rate and
commodity forward contracts, options and swaps and similar arrangements; and
(vii) every obligation of the type referred to in clauses (i) through (vi) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable for,
directly or indirectly, as obligor or otherwise.
"Declaration of Trust" means, with respect to any Issuer Trust, the
declaration of trust or other governing instrument of such Issuer Trust.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Delaware Trustee" in the related Declaration of Trust, solely
in its capacity as Delaware Trustee of such Issuer Trust under such Declaration
of Trust and not in its individual
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capacity, or its successor in interest in such capacity, or any successor
Delaware trustee appointed as therein provided.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Corporation pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"Discount Security" means any security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions", with respect to the Trust Securities issued by an Issuer
Trust, means amounts payable in respect of such Trust Securities as provided in
the related Declaration of Trust and referred to therein as "Distributions".
"Dollar" or "$" means the currency of the United States of America that, as
at the time of payment, is legal tender for the payment of public and private
debts.
"Event of Default", unless otherwise specified with respect to a series of
Securities as contemplated by Section 3.1, has the meaning specified in Article
V.
"Exchange Act" means the Securities Exchange Act of 1934 or any successor
statute thereto, in each case as amended from time to time.
"Existing Junior Subordinated Indebtedness" means, unless otherwise
determined with respect to any series of Securities pursuant to Section 3.1, the
obligations of the Corporation under its 8.09% Junior Subordinated Deferrable
Interest Debentures, Series A, 7.75% Junior Subordinated Deferrable Interest
Debentures, Series B and 7.90% Junior Subordinated Deferrable Interest
Debentures, Series A1.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary for
such series or its nominee, and registered in the name of such Depositary or its
nominee.
"Guarantee Agreement" means, with respect to any Issuer Trust, the
Guarantee Agreement executed by the Corporation for the benefit of the Holders
of the Preferred Securities issued by such Issuer Trust, as modified, amended or
supplemented from time to time.
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"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or 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 and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means, as to each series of Securities, the Stated
Maturity of an installment of interest on such Securities.
"Investment Company Act" means the Investment Company Act of 1940 or any
successor statute thereto, in each case as amended from time to time.
"Investment Company Event" means the receipt by an Issuer Trust of an
Opinion of Counsel (as defined in the relevant Declaration of Trust) experienced
in such matters to the effect that, as a result of the occurrence of a change in
law or regulation or a change (including any announced proposed change) in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that such Issuer Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which change or proposed change becomes effective or would become
effective, as the case may be, on or after the date of the issuance of the
Preferred Securities of such Issuer Trust.
"Issuer Trust" has the meaning specified in the first recital of this
Indenture.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security or any instalment 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
5.1(3).
"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
for or an employee of the Corporation or any Affiliate of the Corporation.
"Original Issue Date" means the date of issuance specified as such in each
Security.
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"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or that have been paid
pursuant to Section 3.7, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Corporation or any other obligor upon the Securities or any Affiliate of
the Corporation or 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 or waiver, 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 such other obligor. Upon the written request
of the Trustee, the Corporation shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Corporation to be owned or held by or for the account of the Corporation or
any other obligor on the Securities, or any Affiliate of the Corporation or such
obligor, and subject to the provisions of Section 6.1, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination. Notwithstanding
anything herein to the contrary, Securities of any series initially issued to an
Issuer Trust that are owned by such Issuer Trust shall be deemed to be
Outstanding notwithstanding the ownership by the Corporation or an Affiliate of
any beneficial interest in such Issuer Trust.
"Paying Agent" means the Trustee or any Person authorized by the
Corporation to pay the principal of (or premium, if any) or interest on, or
other amounts in respect of, any Securities on behalf of the Corporation.
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"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Place of Payment" means, with respect to the Securities of any series, the
place or places where the principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities of such series are payable
pursuant to Section 3.1.
"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. For the purposes of this definition, any security
authenticated and delivered under Section 3.7 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.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Property Trustee" in the related Declaration of Trust, solely
in its capacity as Property Trustee of such Issuer Trust under such Declaration
of Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as therein provided.
"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 or the
terms of such Security.
"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 or the
terms of such Security.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of such series, the day that
is fifteen days next preceding such Interest Payment Date (whether or not a
Business Day).
"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
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customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Rights Plan" means a plan of the Corporation providing for the issuance by
the Corporation to all holders of its Common Stock, par value $1 per share, of
rights entitling the holders thereof to subscribe for or purchase shares of any
class or series of capital stock of the Corporation, which rights are (i) deemed
to be transferred with such shares of such Common Stock and (ii) also issued in
respect of future issuances of such Common Stock, in each case until the
occurrence of a specified event or events.
"Security" means any debt security authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933 or any successor statute
thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.6.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Corporation whether
or not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Corporation, whether incurred on or prior to the date of this
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Securities or
to other Debt that is pari passu with, or subordinated to, the Securities,
provided, however, that Senior Indebtedness shall not be deemed to include (a)
any Debt of the Corporation that, when incurred and without respect to any
election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was without
recourse to the Corporation, (b) any Debt of the Corporation to any of its
Subsidiaries, (c) any Debt of the Corporation to any Person who is an employee
of the Corporation in such Person's capacity as such, (d) any Securities, (e)
trade accounts payable of the Corporation, (f) accrued liabilities arising in
the ordinary course of business of the Corporation and (g) Existing Junior
Subordinated Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof (or premium, if any) or interest (including any
Additional Interest) thereon, means the date specified pursuant to the terms of
such Security as the fixed date on which the principal of such Security or such
installment of principal (or premium, if any) or interest
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(including any Additional Interest) is due and payable, as such date may be
shortened or extended as provided pursuant to the terms of such Security and
this Indenture, in the case of the Stated Maturity of any Security, and subject
to the deferral of any such date during any Extension Period, in the case of any
instalment of interest.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Corporation or by one or
more other Subsidiaries, or by the Corporation and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock that
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Successor Security" of any particular Security means every Security issued
after, and evidencing all or a portion of the same debt as that evidenced by,
such particular Security. For the purposes of this definition, any Security
authenticated and delivered under Section 3.7 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.
"Tax Event" means the receipt by an Issuer Trust of an Opinion of Counsel
(as defined in the relevant Declaration of Trust) experienced in such matters to
the effect that, as a result of any amendment to, or change (including any
announced proposed change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement or decision is announced on or after
the date of issuance of the Preferred Securities of such Issuer Trust, there is
more than an insubstantial risk that (i) such Issuer Trust is, or will be within
90 days of the delivery of such Opinion of Counsel, subject to United States
Federal income tax with respect to income received or accrued on the
corresponding series of Securities issued by the Corporation to such Issuer
Trust, (ii) interest payable by the Corporation on such corresponding series of
Securities is not, or within 90 days of the delivery of such Opinion of Counsel
will not be, deductible by the Corporation, in whole or in part, for United
States Federal income tax purposes, or (iii) such Issuer Trust is, or will be
within 90 days of the delivery of such Opinion of Counsel, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument, solely in its capacity as such Trustee and not in its
individual capacity, 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.
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"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 if
the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means the Trust Indenture Act of 1939 as so amended.
"Trust Securities" means the Common Securities and the Preferred
Securities.
"Vice President," when used with respect to the Corporation, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 1.2. Compliance Certificate 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 an Officers' Certificate stating that all conditions precedent
(including covenants compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.4) shall include:
(1) a statement by each individual signing such certificate or opinion
that such individual has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions of such individual
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she has
made such examination or investigation as is necessary to enable him or her
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 such individual, such
condition or covenant has been complied with.
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SECTION 1.3. Forms 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 matters upon which his or her 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 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to 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 an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or 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 6.1) conclusive in favor of the Trustee and
the Corporation, if made in the manner provided in this Section 1.4.
(b) 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
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to such notary the execution thereof. Where such
execution is by a Person acting in other than such
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Persons's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such Person's authority.
(c) The fact and date of the execution by any Person 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 and in accordance
with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
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.
(f) 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 succeeding 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
(as defined below) 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 canceled 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 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 1.6.
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 5.2,
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(iii) any request to institute proceedings referred to in Section 5.7(2), or
(iv) any direction referred to in Section 5.12, 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 canceled 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 1.6.
With respect to any record date set pursuant to this Section 1.4, 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 1.6, 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
1.4, 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.
(g) 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.
Section 1.5. Notices, Etc. to Trustee and Corporation.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder, any holder of Preferred Securities or
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, or
(2) the Corporation by the Trustee, any Holder or any holder of
Preferred Securities shall be sufficient for every purpose (except as
otherwise provided in Section 5.1) hereunder 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 or at any other address previously furnished in writing to the
Trustee by the Corporation.
Section 1.6. 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 the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail service or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or of
the relevant Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient 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.
Section 1.7. Conflict with Trust Indenture Act.
(a) This Indenture is subject to the provisions of the Trust Indenture Act
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
(b) If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof, such imposed duties
shall control.
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(c) If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 1.8. 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 1.9. 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 1.10. Separability Clause.
If 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 1.11. 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 and
assigns, the holders of Senior Indebtedness, the Holders of the Securities and,
to the extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1, 9.2
and 10.5 the holders of Preferred Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.12. 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 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity shall not
be a Business Day, then (notwithstanding any other provision of this Indenture
or the Securities) payment of principal of (and premium, if any) or interest
(including any Additional Interest) or other amounts in respect of such Security
need not be made on such date, but may be made on the next succeeding Business
Day (and no interest shall accrue in respect of the amounts whose payment is so
delayed for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, until such next succeeding Business
Day) except that, if such Business Day falls in the next succeeding calendar
year,
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such payment shall be made on the immediately preceding Business Day (in each
case with the same force and effect as if made on the Interest Payment Date or
Redemption Date or at the Stated Maturity).
ARTICLE II
Security Forms
Section 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms 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 applicable tax laws or the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such securities, as evidenced by their execution of the
Securities. 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 3.3 with respect to the authentication
and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
Section 2.2. Form of Face of Security.
BANKERS TRUST NEW YORK CORPORATION
[Title of Security]
No. _____________ $__________
BANKERS TRUST NEW YORK CORPORATION, a corporation organized and existing
under the laws of New York (hereinafter called the "Corporation", which term
includes any successor Person under the Indenture hereinafter referred to), for
value
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received, hereby promises to pay to _______________, or registered assigns, the
principal sum of __________ Dollars on __________, ____ [if the Security is a
Global Security, then insert, if applicable--, or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture] [; provided
that the Corporation may (i) shorten the Stated Maturity of the principal of
this Security, as provided in the Indenture, at any time on one or more
occasions to a date not earlier than __________, and (ii) extend the Stated
Maturity of the principal of this Security at any time on one or more occasions,
subject to certain conditions specified in Section 3.15 of the Indenture, but in
no event to a date later than __________]. The Corporation further promises to
pay interest on said principal sum from ______________, ____ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, [monthly] [quarterly] [semi-annually] [if applicable, insert--(subject to
deferral as set forth herein)] in arrears on [insert applicable Interest Payment
Dates] of each year, commencing ______________, ____, at the rate of ___% per
annum, [if applicable insert--together with Additional Sums, if any, as provided
in Section 10.6 of the Indenture] until the principal hereof is paid or duly
provided for or made available for payment [if applicable, insert-- ; provided
that any overdue principal, premium or Additional Sums and any overdue
installment of interest shall bear Additional Interest at the rate of ___% per
annum (to the extent that the payment of such interest shall be legally
enforceable), compounded [monthly] [quarterly] [semi-annually], 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 amount of interest payable for any
period less than a full interest period shall be computed on the basis of a 360-
day year of twelve 30-day months and the actual days elapsed in a partial month
in such period. The amount of interest payable for any full interest period
shall be computed by dividing the applicable rate per annum by
[twelve/four/two]. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest installment [if applicable insert--, 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 shall 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 applicable, insert--So long as no Event of Default has occurred and is
continuing, the Corporation shall have the right, at any time during the term of
this Security, from time to time to defer the payment of interest on this
Security for up to ______ consecutive
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[monthly] [quarterly] [semi-annual] interest payment periods with respect to
each deferral period (each an "Extension Period") [if applicable, insert--,
during which Extension Periods the Corporation shall have the right to make
partial payments of interest on any Interest Payment Date, and] at the end of
which the Corporation shall pay all interest then accrued and unpaid (including
any Additional Interest, as provided below); provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of
this Security [if Stated Maturity can be shortened or extended, insert--, as
then in effect,] and no such Extension Period may end on a date other than an
Interest Payment Date; and provided further, however, that during any such
Extension Period, the Corporation shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Corporation's capital stock, or (ii) make any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Corporation that rank pari passu in all
respects with or junior in interest to this Security (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Corporation in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital
stock of the Corporation (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of an exchange or conversion
of any class or series of the Corporation's capital stock (or any capital stock
of a Subsidiary of the Corporation) for any class or series of the Corporation's
capital stock or of any class or series of the Corporation's indebtedness for
any class or series of the Corporation's capital stock, (c) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (d) any declaration of a dividend in connection
with any Rights Plan, or the issuance of rights, stock or other property under
any Rights Plan, or the redemption or repurchase of rights pursuant thereto, or
(e) any dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of such warrants, options
or other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock). Prior to the termination of any
such Extension Period, the Corporation may further defer the payment of
interest, provided that no Extension Period shall exceed ______ consecutive
[monthly] [quarterly] [semi-annual] interest payment periods, extend beyond the
Stated Maturity of the principal of this Security or end on a date other than an
Interest Payment Date. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due on any Interest Payment Date, the Corporation may elect to begin a new
Extension Period, subject to the above conditions. No interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest (to the extent that the
payment of such interest shall be legally enforceable) at the rate of ____% per
annum, compounded [monthly] [quarterly] [semi-annually] and calculated as set
forth in the first paragraph of this
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Security, from the dates on which amounts would otherwise have been due and
payable until paid or made available for payment. The Corporation shall give the
Holder of this Security and the Trustee notice of its election to begin any
Extension Period at least one Business Day prior to the next succeeding Interest
Payment Date on which interest on this Security would be payable but for such
deferral [if applicable, insert--or so long as such Securities are held by
[insert name of applicable Issuer Trust] (the "Issuer Trust"), at least one
Business Day prior to the earlier of (i) the next succeeding date on which
Distributions on the Preferred Securities of such Issuer Trust would be payable
but for such deferral, and (ii) the date on which the Property Trustee of such
Issuer Trust is required to give notice to any securities exchange or other
applicable self-regulatory organization or to holders of such Preferred
Securities of the record date or the date such Distributions are payable].
Payment of the principal of (and premium, if any) and interest (including
any Additional Interest) on this Security will be made at the office or agency
of the Corporation maintained for that purpose in [insert Place of Payment], 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 (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Securities Register, or (ii) by wire transfer
in immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior 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, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on such Holder's behalf to take such actions
as may be necessary or appropriate to effectuate the subordination so provided,
and (c) appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes. Each Holder hereof, by such Holder's acceptance hereof, waives all
notice of the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
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.
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IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
Bankers Trust New York Corporation
By:
---------------------------------
Name:
Title:
Attest:
- -----------------------------------
[Secretary or Assistant Secretary]
Section 2.3. 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 the Junior Subordinated Indenture, dated as of February 5,
1997 (herein called the "Indenture"), between the Corporation and Wilmington
Trust Company, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Corporation, the Trustee, the holders of Senior Indebtedness 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 $ ___________].
All terms used in this Security that are defined in the Indenture [if
applicable, insert--or in the Amended and Restated Declaration of Trust, dated
as of _______ __, 199_ (as modified, amended or supplemented from time to time,
the "Declaration of Trust"), relating to the Issuer Trust among the Corporation,
as Depositor, the Issuer Trustees named therein and the Holders from time to
time of the Trust Securities issued pursuant thereto,] shall have the meanings
assigned to them in the Indenture [if applicable, insert--or the Declaration of
Trust, as the case may be, unless otherwise defined herein].
[If applicable, insert--The Corporation may at any time, at its option, on
or after _________, ____, and subject to the terms and conditions of Article XI
of the Indenture, redeem this Security in whole at any time or in part from time
to time, at the following Redemption Prices (expressed as percentages of the
principal amount hereof): If redeemed during the 12-month period beginning
_____________,
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<TABLE>
<CAPTION>
Redemption
Year Price
---- ----------
<S> <C>
</TABLE>
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, together, in the case of any such redemption, with accrued interest [if
applicable, insert-- (including any Additional Interest)] to but excluding the
date fixed for redemption.]
[If applicable, insert--In addition, upon the occurrence and during the
continuation of a Tax Event, an Investment Company Event or a Capital Treatment
Event in respect of the Issuer Trust, the Corporation may, at its option, at any
time within 90 days of the occurrence and during the continuation of such Tax
Event, Investment Company Event or Capital Treatment Event, as the case may be
(or, if the approval of the Board of Governors of the Federal Reserve System is
then required for such redemption, on such later date as promptly as reasonably
practicable after such approval is obtained), redeem this Security, in whole but
not in part, subject to the terms and conditions of Article XI of the Indenture,
at a Redemption Price equal to [insert formula].
[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 for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Corporation with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Corporation and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Corporation and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting 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
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herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
[If the Security is not a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Outstanding Securities of
this series to be due and payable immediately, by a notice in writing to the
Corporation (and to the Trustee if given by Holders) [if applicable, insert--,
provided that, if upon an Event of Default, the Trustee or such Holders fail to
declare the principal of all the Outstanding Securities of this series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have the
right to make such declaration by a notice in writing to the Corporation and the
Trustee]; and upon any such declaration the principal amount of and the accrued
interest (including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII of the
Indenture.]
[If the Security is a Discount Security, insert--As provided in and subject
to the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of this series may
declare an amount of principal of the Outstanding Securities of this series to
be due and payable immediately, by a notice in writing to the Corporation (and
to the Trustee if given by Holders) [if applicable, insert--, provided that, if
upon an Event of Default, the Trustee or such Holders fail to declare such
principal amount of the Outstanding Securities of this series to be immediately
due and payable, the holders of at least 25% in aggregate Liquidation Amount of
the Preferred Securities then outstanding shall have the right to make such
declaration by a notice in writing to the Corporation and the Trustee]. The
principal amount payable upon such acceleration shall be equal to [insert
formula for determining the amount]. Upon any such declaration, such amount of
the principal amount of and the accrued interest (including any Additional
Interest) on such Securities shall become immediately due and payable, provided
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIII of the Indenture. 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 this Security
shall terminate.]
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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 premium, if any) and
interest [if applicable, insert--(including any Additional 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 Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation maintained under Section 10.2 of the Indenture for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the Securities Registrar
duly executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Securities of this series, 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 of
$____________ in excess thereof. As provided in the 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.
The Corporation and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
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Section 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any Global
Security issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, 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 OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE iNDENTURE AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
Section 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
Wilmington Trust Company,
as Trustee
By:
-----------------------------
Authorized Officer
ARTICLE III
The Securities
Section 3.1. Title and Terms.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
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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 3.3,
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 a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such 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 3.4, 3.5, 3.6, 3.7, 9.6 or
11.6 and except for any Securities that, pursuant to Section 3.3, are
deemed never to have been authenticated and delivered hereunder); provided,
however, that the authorized aggregate principal amount of such series may
be increased above such amount by a Board Resolution to such effect;
(c) the Person to whom any interest (including any Additional
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;
(d) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination
thereof, and any dates on which or circumstances under which, the
Corporation shall have the right to extend or shorten such Stated Maturity
or Maturities;
(e) the rate or rates, if any, at which the Securities of such series
shall bear interest, if any, the rate or rates at which and extent to which
Additional Interest, if any, shall be payable in respect of any Securities
of such series, the date or dates from which any such interest or
Additional Interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the right, pursuant to Section 3.12 or as
otherwise set forth therein, of the Corporation to defer or extend an
Interest Payment Date, and the Regular Record Date for the interest payable
on any Interest Payment Date or the method by which any of the foregoing
shall be determined;
(f) the place or places where the principal of (and premium, if any)
and interest (including any Additional Interest) on the Securities of such
series shall be payable, the place or places where the Securities of such
series may be presented for registration of transfer or exchange, any
restrictions that may be applicable to any such transfer or exchange in
addition to or in lieu of those set forth herein, and the place or places
where notices and demands to or upon the Corporation in respect of the
Securities of such series may be made;
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(g) the period or periods within or the date or dates on which, the
price or prices at which and the terms and conditions upon which, if any,
the Securities of such 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 such Securities
shall be evidenced;
(h) the obligation or the right, if any, of the Corporation to redeem,
repay or purchase the Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, or at the option of a Holder
thereof, and the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which and the other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(i) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $1,000 and integral multiples
thereof, and any integral multiple thereof;
(j) if other than Dollars, the currency or currencies (including any
currency unit or units) in which the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities of the
series shall be payable, or in which the Securities of the series shall be
denominated and the manner of determining the equivalent thereof in Dollars
for purposes of the definition of Outstanding;
(k) the additions, modifications or deletions, if any, in the
covenants of the Corporation set forth herein with respect to the
Securities of such series;
(l) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(m) 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);
(n) the additions or changes, if any, to this Indenture with respect
to the Securities of such series as shall be necessary to permit or
facilitate the issuance of
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the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(o) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the
manner in which such amounts will be determined;
(p) 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 2.4 and any
circumstances in addition to or in lieu of those set forth in Section 3.5
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;
(q) the appointment of any Paying Agent or agents for the Securities
of such series;
(r) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Corporation, and the
additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(s) if such Securities are to be issued to an Issuer Trust, the form
or forms of the Declaration of Trust and Guarantee Agreement relating
thereto;
(t) if other than as set forth herein, the relative degree, if any, to
which the Securities of the series shall be senior to or be subordinated to
other series of Securities in right of payment, whether such other series
of Securities are Outstanding or not;
(u) the additions, modifications or deletions, if any, in the Events
of Default that apply 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 5.2; and
(v) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1(6)).
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All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided herein or in or pursuant
to such Board Resolution and set forth, or determined in the manner provided, in
such Officers' Certificate or in any 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
Indebtedness as provided in Article XIII.
Section 3.2. Denominations.
The Securities of each series shall be in registered form without coupons
and shall be issuable in denominations of $1,000 and integral multiples thereof,
unless otherwise specified as contemplated by Section 3.1.
Section 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced or impressed thereon
and 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 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 2.1 and 3.1, 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 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
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(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 2.1, 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 3.1, 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, 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 3.1 and of the preceding
paragraphs, 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 3.1 or the Corporation Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraphs 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 authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, 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 3.10, 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.
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Section 3.4. 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 denomination,
substantially of the tenor of the definitive Securities of such series 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 such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Corporation designated for that
purpose without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities, 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, of like tenor and
aggregate principal amount, bearing such legends as may be required by this
Indenture and bearing a number not contemporaneously outstanding. 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.
Section 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be registered in
the name of the Depositary designated by the Corporation 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.
(b) 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 (i) such Depositary advises the Trustee in writing that such
Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security, and the
Corporation is unable to locate a qualified successor, (ii) the Corporation
executes and delivers to the Trustee a Corporation Order stating that the
Corporation elects to terminate the book-entry system through such Depositary,
or (iii) an Event of Default has occurred and is continuing. Upon the occurrence
of any event specified in clause (i), (ii) or (iii) above, the Securities
Registrar shall notify the applicable Depositary and instruct such Depositary to
notify all beneficial owners of Global Securities of the occurrence of such
event and of the availability of the definitive Securities to beneficial owners
of such Securities requesting the same;
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provided, however, that no Securities shall be issued in any denomination less
than the minimized authorized denomination therefor.
(c) Subject to Section 3.5(b), 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.
(d) 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 Article III, Section 9.6 or 11.6 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.
(e) Securities distributed to holders of Book-Entry Preferred Securities
(as defined in the applicable Declaration of Trust) upon the dissolution of an
Issuer Trust shall be distributed in the form of one or more Global Securities
registered in the name of a Depositary or its nominee, and deposited with the
Securities Registrar, as custodian for such Depositary, or with such Depositary,
for credit by the Depositary to the respective accounts of the beneficial owners
of the Securities represented thereby (or such other accounts as they may
direct). Securities distributed to holders of Preferred Securities other than
Book-Entry Preferred Securities upon the dissolution of an Issuer Trust shall
not be issued in the form of a Global Security or any other form intended to
facilitate book-entry trading in beneficial interests in such Securities.
(f) As provided in Section 3.9, the Depositary for a Global Security or its
nominee, as the registered owner of a Global Security, shall be the Holder of
such Global Security for all purposes under this Indenture and the Securities.
The Securities Registrar and the Trustee shall be entitled to deal with the
Depositary for such Global Security for all purposes of this Indenture relating
to such Global Security (including the payment of the principal amount of (and
premium, if any) and interest (including Additional Interest) on such Global
Security and the giving of and receiving of notices relating to such Global
Security) as the sole Holder of the Securities represented thereby and shall
have no obligation to the beneficial owners thereof. Neither the Corporation,
the Trustee nor the Securities Registrar shall have any liability in respect of
any transfers effected by the Depositary.
Section 3.6. Registration, Transfer and Exchange Generally.
The Corporation shall cause to be kept at the Corporate Trust Office of the
Trustee a register or registers (the "Securities Register") in which the
registrar and transfer agent with respect to the Securities (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Securities and of transfers and exchanges of
Securities as herein provided. The Trustee is hereby appointed Securities
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Registrar for the purpose of registering Securities and transfers and exchanges
of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Corporation designated for that purpose 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, of like tenor and aggregate principal
amount, and bearing a number not contemporaneously outstanding.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of like tenor and
aggregate principal amount, and bearing a number not contemporaneously
outstanding, 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 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 transfer or exchange.
Neither the Corporation, the Trustee nor the Securities Registrar shall be
required, pursuant to the provisions of this Section 3.6, (i) to issue, register
the transfer of or exchange any Security of any series during a period beginning
at the opening of business 15 days before the day of selection for redemption of
Securities of that series pursuant to Article XI and ending at the close of
business on the day of mailing of the notice of redemption, or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except, in the case of any such Security to be redeemed in part, any
portion thereof not to be redeemed.
Every Security presented or surrendered for registration of transfer or
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 Securities Registrar, duly executed by
the Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder 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 transfer or exchange of Securities.
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Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Corporation or the Trustee to
save each of them harmless, the Corporation shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series,
of like tenor and aggregate principal amount, and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and to 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 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 upon its request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series, of like tenor and aggregate principal amount as
such destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
If 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 3.7, the
Corporation may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security 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 the same benefits of this Indenture equally and proportionately with
any and all other Securities of the same series duly issued hereunder.
The provisions of this Section 3.7 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 3.8. Payment of Interest and Additional Interest; Interest Rights
Preserved.
Interest (including any Additional Interest) on any Security of any series
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 in respect of
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Securities of such series, except that, unless otherwise provided in the
Securities of such series, interest (including any Additional Interest) payable
on the Stated Maturity of the principal of a Security shall be paid to the
Person to whom principal is paid. The initial payment of interest on any
Security of any series that is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or
in the Board Resolution pursuant to Section 3.1 with respect to the related
series of Securities.
Any interest on any Security that is due and payable, but is not timely
paid or duly provided for, on any Interest Payment Date for Securities of such
series (herein called "Defaulted Interest"), shall forthwith cease to be payable
to the registered Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest 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 in
respect of which interest is in default (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
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
provided in this Clause (1). 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 Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of a Security of such series at
the address of such Holder as it appears in the Securities Register not
less than 10 days prior to such Special Record Date. The Trustee may, in
its discretion, in the name and at the expense of the Corporation, cause a
similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
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names the Securities of such series (or their respective Predecessor
Securities) are registered 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 in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of the series in respect of
which interest is in default may be listed and, upon such notice as may be
required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this Clause (2), such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.8, each Security
delivered under this Indenture upon 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 3.9. Persons Deemed Owners.
The Corporation, the Trustee and any agent of the Corporation or the
Trustee shall treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment of principal of and
(subject to Section 3.8) 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.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Corporation,
the Trustee and any agent of the Corporation or the Trustee as the owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Corporation, the Trustee or any agent of the
Corporation or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary or impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
Section 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Corporation
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the
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Corporation may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 3.10, except as expressly permitted by this Indenture. All
canceled Securities shall be destroyed by the Trustee and the Trustee shall
deliver to the Corporation a certificate of such destruction.
Section 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series for any partial period
shall be computed on the basis of a 360-day year of twelve 30-day months and the
actual number of days elapsed in any partial month in such period, and interest
on the Securities of each series for a full period shall be computed by dividing
the rate per annum by the number of interest periods that together constitute a
full twelve months.
Section 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Corporation shall have the right, at any time
during the term of such series, from time to time to defer the payment of
interest on such Securities for such period or periods as may be specified as
contemplated by Section 3.1 (each, an "Extension Period"), during which
Extension Periods the Corporation shall, if so specified as contemplated by
Section 3.1, have the right to make partial payments of interest (including any
Additional Interest) on any Interest Payment Date. No Extension Period shall end
on a date other than an Interest Payment Date. At the end of any such Extension
Period the Corporation shall pay all interest then accrued and unpaid on the
Securities (together with Additional Interest thereon, if any, at the rate
specified for the Securities of such series, to the extent permitted by
applicable law); provided, however, that no Extension Period shall extend beyond
the Stated Maturity of the principal of the Securities of such series; and
provided further, however that during any such Extension Period, the Corporation
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation that rank pari passu in all respects with or
junior in interest to the Securities of such series (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Corporation
in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Corporation (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of an exchange or conversion
of any class or series of the
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Corporation's capital stock (or any capital stock of a Subsidiary of the
Corporation) for any class or series of the Corporation's capital stock or of
any class or series of the Corporation's indebtedness for any class or series of
the Corporation's capital stock, (c) the purchase of fractional interests in
shares of the Corporation's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(d) any declaration of a dividend in connection with any Rights Plan, or the
issuance of rights, stock or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto, or (e) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu with
or junior to such stock). Prior to the termination of any such Extension Period,
the Corporation may further defer the payment of interest, provided that no
Event of Default has occurred and is continuing, and provided further that no
Extension Period shall exceed the period or periods specified in such
Securities, extend beyond the Stated Maturity of the principal of such
Securities or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest (including any Additional Interest) then due on any Interest
Payment Date, the Corporation may elect to begin a new Extension Period, subject
to the above conditions. No interest (including any Additional Interest) shall
be due and payable during an Extension Period, except at the end thereof, but
each installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest as and to the extent
as may be specified as contemplated by Section 3.1. The Corporation shall give
to the Trustee, and shall give or cause to be given to the Holders of the
Securities of such series, notice of its election to begin any such Extension
Period at least one Business Day prior to the next succeeding Interest Payment
Date on which interest on Securities of such series would be payable but for
such deferral or, with respect to any Securities of a series issued to an Issuer
Trust, so long as any such Securities are held by such Issuer Trust, at least
one Business Day prior to the earlier of (i) the next succeeding date on which
Distributions on the Preferred Securities of such Issuer Trust would be payable
but for such deferral, and (ii) the date on which the Property Trustee of such
Issuer Trust is required to give notice to any securities exchange or other
applicable self-regulatory organization or to holders of such Preferred
Securities of the record date or the date such Distributions are payable.
Section 3.13. Right of Set-Off.
With respect to the Securities of a series initially issued to an Issuer
Trust, notwithstanding anything to the contrary herein, the Corporation shall
have the right to set off any payment it is otherwise required to make in
respect of any such Security to the extent the Corporation has theretofore made,
or is concurrently on the date of such payment making, a payment under the
Guarantee Agreement relating to such Security or to a holder of Preferred
Securities pursuant to an action undertaken under Section 5.8 of this Indenture.
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Section 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Corporation and, by
its acceptance of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Security agree that
for United States Federal, state and local tax purposes it is intended that such
Security constitutes indebtedness.
Section 3.15. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Corporation shall have the right to
(i) shorten the Stated Maturity of the principal of the Securities of such
series at any time to any date, and (ii) extend the Stated Maturity of the
principal of the Securities of such series at any time at its election for one
or more periods but in no event to a date later than the 49th anniversary of the
first Interest Payment Date following the Original Issue Date of the Securities
of such series; provided that, if the Corporation elects to exercise its right
to extend the Stated Maturity of the principal of the Securities of such series
pursuant to Clause (ii) above of this Section 3.15, at the time such election is
made and at the time of extension, such conditions as may be specified in such
Securities shall have been satisfied. If the Corporation elects to shorten or
extend the Stated Maturity of the Securities of any series, the Corporation
shall give to the Trustee, and the Trustee shall give to the Holders of the
Securities of such series, notice of such election not less than 30 nor more
than 60 days prior to the effectiveness of such election.
Section 3.16. CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption and other similar or related materials as a convenience to
Holders; provided that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other materials
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
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ARTICLE IV
Satisfaction and Discharge
Section 4.1. 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 as otherwise provided
in this Section 4.1) and the Trustee, on demand of and 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 3.7 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 10.3) 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 of the date of deposit, 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 subclause (B)(i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which the
Securities of such series are payable sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest
(including any Additional 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;
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(2) the Corporation has paid or caused to be paid all other sums
payable hereunder by the Corporation; and
(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 6.7, the obligations
of the Trustee to any Authenticating Agent under Section 6.14 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section 4.1, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 10.3 shall survive.
Section 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, 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 premium, if
any) and interest (including any Additional Interest) for the payment of which
such money or obligations have been deposited with or received by the Trustee.
ARTICLE V
Remedies
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall 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),
except as may be specified pursuant to Section 3.1:
(1) default in the payment of any interest (including any Additional
Interest) upon any Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days (subject to the
deferral of any due date in respect of any interest (including Additional
Interest) in the case of an Extension Period); or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
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(3) failure on the part of the Corporation duly to observe or perform
any other of the covenants or agreements on the part of the Corporation in
the Securities of that series or in this Indenture for a period of 90 days
after the date on which written notice of such failure, requiring the
Corporation to remedy the same, shall have been given to the Corporation by
the Trustee by registered or certified mail or to the Corporation and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series; or
(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Corporation a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Corporation under the Bankruptcy Code or any other similar applicable
Federal or State law, which decree or order shall have continued
undischarged and unstayed for a period of 60 days; or the entry of 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 of its property, or for the winding up or
liquidation of its affairs, which decree or order shall have continued
undischarged and unstayed for a period of 60 days; or
(5) the commencement by the Corporation of voluntary proceedings to be
adjudicated a bankrupt, or the consent by the Corporation to the filing of
a bankruptcy proceeding against it, or the filing by the Corporation of a
petition or answer or consent seeking reorganization under the Bankruptcy
Code or any other similar Federal or State law, or the consent by the
Corporation to the filing of any such petition, or the consent by the
Corporation to the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its property, or the
making by the Corporation of an assignment for the benefit of creditors, or
the admission by the Corporation in writing of its inability to pay its
debts generally as they become due; or
(6) any other Event of Default provided with respect to Securities of
that series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Corporation (and to the Trustee if given by Holders), provided
that, in the case of the Securities of a series
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issued to an Issuer Trust, if, upon an Event of Default, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of such series fail to declare the principal of all the Outstanding Securities
of such series (or specified portion thereof) to be immediately due and payable,
the holders of at least 25% in aggregate Liquidation Amount (as defined in the
related Declaration of Trust) of the related series of Preferred Securities
issued by such Issuer Trust then outstanding shall have the right to make such
declaration by a notice in writing to the Corporation and the Trustee; and upon
any such declaration such principal amount (or specified portion thereof) of and
the accrued interest (including any Additional Interest) on all the Securities
of such series shall become immediately due and payable. If an Event of Default
specified in Section 5.1(4) or 5.1(5) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
such series (or, if the Securities of such series are Discount Securities, such
portion of the principal amount of such Securities as may be specified by the
terms of that series) and the accrued interest (including any Additional
Interest) on all the Securities of such series shall automatically, and without
any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable. Payment of principal (and premium, if any) and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding that such
amount shall become immediately due and payable as herein provided.
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 V provided, the Holders of a majority in aggregate 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 installments of interest on all Securities of
such series,
(B) any accrued Additional Interest on all Securities of such
series,
(C) the principal of (and premium, if any, on) any Securities of
such series that have become due otherwise than by such declaration
of acceleration, and
(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
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(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
that has become due solely by such acceleration, have been cured or waived
as provided in Section 5.13.
In the case of Securities of a series initially issued to an Issuer Trust,
if the Holders of such Securities fail to annul such declaration and waive such
default, the holders of a Majority in Liquidation Amount of the Preferred
Securities (as defined in the related Declaration of Trust) issued by such
Issuer Trust shall also have the right to rescind and annul such declaration and
its consequences by written notice to the Corporation and the Trustee, subject
to the satisfaction of the conditions set forth in Clauses (1) and (2) above of
this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Corporation covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security of any series when such
interest becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any), including any sinking
fund payment or analogous obligations, and interest (including any Additional
Interest), and, in addition thereto, all amounts owing the Trustee under Section
6.7.
If the Corporation fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon such Securities and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Corporation or any other obligor upon the Securities,
wherever situated.
If an Event of 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
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the 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 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Corporation or any other obligor upon the Securities
or the property of the Corporation or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Corporation for the payment of overdue
principal (or premium, if any) or interest (including any Additional
Interest)) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest (including any Additional Interest)
owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable and to take any
and all actions as are authorized under the Trust Indenture Act in
order to have the claims of the Holders and any predecessor to the
Trustee under Section 6.7 allowed in any such judicial proceedings;
and
(2) 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 in accordance with Section 5.6;
and
(b) 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 for
distribution in accordance with Section 5.6, and in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained 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
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election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
Section 5.5. Trustee May Enforce Claim 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, subject to
Article XIII and after provision for the payment of all the amounts owing the
Trustee and any predecessor Trustee under Section 6.7, 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 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article V 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 or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
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 and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium,
if any) and interest (including any Additional Interest) in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such series of Securities for principal (and premium, if
any) and interest (including any Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities 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, assignee, trustee,
liquidator or sequestrator (or other similar official) or for any other remedy
hereunder, unless:
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(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(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
aggregate 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 itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, 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 such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security of any series shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 3.8 and 3.12) interest (including any Additional 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 right shall not be impaired
without the consent of such Holder. In the case of Securities of a series issued
to an Issuer Trust, any registered holder of the series of Preferred Securities
issued by such Issuer Trust shall have the right, upon the occurrence of an
Event of Default described in Section 5.1(1) or 5.1(2), to institute a suit
directly against the Corporation for enforcement of payment to such holder of
principal of (premium, if any) and (subject to Sections 3.8 and 3.12) interest
(including any Additional Interest) on the Securities having a principal amount
equal to the aggregate Liquidation Amount (as defined in the related Declaration
of Trust) of such Preferred Securities held by such holder.
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Section 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities issued by
any Issuer Trust 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, such Holder or such
holder of Preferred Securities, then and in every such case the Corporation, the
Trustee, such Holders and such holder of Preferred Securities shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, such Holder and such holder of Preferred Securities shall continue as
though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7, no right
or remedy herein conferred upon or reserved to the Trustee or 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 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Preferred Security to exercise any right or remedy accruing upon
any Event of Default with respect to the Securities of the related series shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to the Trustee or
to the Holders and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Preferred
Securities, as the case may be.
Section 5.12. Control by Holders.
The Holders of not less than a majority in aggregate 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:
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(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, determine that the proceeding
so directed would be unjustly prejudicial to the Holders not joining in any
such direction or would involve the Trustee in personal liability.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series affected thereby and, in the case of
any Securities of a series initially issued to an Issuer Trust, the holders of a
Majority in Liquidation Amount of the Preferred Securities (as defined in the
related Declaration of Trust) issued by such Issuer Trust may waive any past
default or Event of Default hereunder and its consequences with respect to such
series except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security of such series
(unless such default has been cured and the Corporation has paid to or
deposited with the Trustee a sum sufficient to pay all matured installments
of interest (including any Additional Interest) and all principal of (and
premium, if any, on) all Securities of that series due otherwise than by
acceleration), or
(2) in respect of a covenant or provision hereof that under Article IX
cannot be modified or amended without the consent of each Holder of any
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Preferred
Securities issued by such Issuer Trust, by the holders of all the Preferred
Securities issued by such Issuer Trust.
Upon any such waiver, such default or Event of Default shall cease to
exist, and any default or 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 Event of Default or impair any
right consequent thereon.
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Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security, by
its acceptance thereof, shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.14 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders holding in the
aggregate more than 10% in aggregate principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security on or after the respective
Stated Maturities expressed in such Security.
Section 5.15. 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, which 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 VI
The Trustee
Section 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the
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requirements of this Indenture; but in the case of any such certificates or
opinions that by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of Holders pursuant to Section 5.12 relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of a series.
(d) Subject to Section 6.1(b), 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 there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) 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
6.1.
Section 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall
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have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities of
such series; and provided further, however, that, in the case of any default of
the character specified in Section 5.1(3), no such notice to Holders of
Securities of such series shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 6.2, the term "default"
means any event that is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) 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 may be sufficiently evidenced by a Board
Resolution;
(c) 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;
(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) 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;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
Security or other paper or document, but the
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Trustee in its discretion may make such inquiry or investigation into such facts
or matters as it may see fit; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder.
Section 6.4. 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 the Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
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
6.8 and 6.13, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent,
Securities Registrar or such other agent.
Section 6.6. 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 6.7. Compensation and Reimbursement.
The Corporation agrees
(1) to pay to the Trustee from time to time such reasonable
compensation for all services rendered by it hereunder in such amounts as
the Corporation and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) 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
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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 (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence, wilful misconduct or bad faith, arising out of or in connection
with the acceptance or administration of this trust or the performance of
its duties 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. This indemnification
shall survive the termination of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or 5.1(5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Code.
Section 6.8. Disqualification; Conflicting Interests.
(a) The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
(b) The Declaration of Trust and the Guarantee Agreement with respect to
each Issuer Trust shall be deemed to be specifically described in this Indenture
for the purposes of clause (i) of the first proviso contained in Section 310(b)
of the Trust Indenture Act.
Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of the
United States of America or of any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized under
such laws to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
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in either case having at the time of appointment a combined capital and surplus
of at least $50,000,000. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section 6.9
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.9, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article VI. Neither the
Corporation nor any Person directly or indirectly controlling, controlled by or
under common control with the Corporation shall serve as Trustee for the
Securities of any series issued hereunder.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article VI shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) 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 an
instrument of acceptance by a successor Trustee 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.
(c) 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 aggregate principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Corporation.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 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 6.9 and shall fail
to resign after written request therefor by the Corporation or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
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then, in any such case, (i) the Corporation, acting pursuant to the authority of
a Board Resolution, may remove the Trustee with respect to the Securities of all
series issued hereunder, or (ii) subject to Section 5.14, 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 the Securities of
all series issued hereunder and the appointment of a successor Trustee or
Trustees.
(e) 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 with respect to the Securities of
that or those series. 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 aggregate 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,
become the successor Trustee with respect to the Securities of such series and
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 hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, subject to Section 5.14, 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.
(f) 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 by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. 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 6.11. Acceptance of Appointment by Successor.
(a) 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 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
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charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the 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 which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the 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.
(c) 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 rights, powers and trusts referred to
in paragraph (a) or (b) of this Section 6.11, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article VI.
Section 6.12. 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
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consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article VI, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. If 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, and if any Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor Trustee or in the name of such
successor Trustee, and in all cases the certificate of authentication shall have
the full force which it is provided anywhere in the Securities or in this
Indenture that the certificate of the Trustee shall have.
Section 6.13. 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 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities, which 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 3.7, 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 to 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 or the Authenticating Agent's certificate of authentication
set forth for this Section 6.14. 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 or of any State or
Territory 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, State,
Territorial or District of Columbia authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 6.14 and to the extent permitted by the Trust Indenture
Act, 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
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accordance with the provisions of this Section 6.14, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section 6.14.
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 all or substantially all of
the corporate trust business of an Authenticating Agent, shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
qualified and eligible under this Section 6.14, 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 6.14, the Trustee may appoint a successor
Authenticating Agent, which shall be acceptable to the Corporation and shall
give notice of such appointment in the manner provided in Section 1.6 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 provision of this Section 6.14.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.14, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section 6.14, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within mentioned Indenture.
Dated: ___________________
Wilmington Trust Company,
as Trustee
By: ,
----------------------------
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As Authenticating Agent
By:
----------------------------
Authorized Officer
ARTICLE VII
Holder's Lists and Reports by Trustee And Corporation
Section 7.1. Corporation to Furnish Trustee Names and Addresses of Holders.
The Corporation will furnish or cause to be furnished to the Trustee:
(a) semi-annually, on or before June 30 and December 31 of each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of a date not more than 15 days prior to
the delivery thereof, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Corporation of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
in each case to the extent such information is in the possession or control of
the Corporation and has not otherwise been received by the Trustee in its
capacity as Securities Registrar.
Section 7.2. Preservation of Information, Communications to Holders.
(a) 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 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) 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 in the Trust
Indenture Act.
(c) Every Holder of Securities, by its acceptance thereof, 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 the disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
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Section 7.3. Reports by Trustee.
(a) 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.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than January 31 in each calendar
year, commencing with the first January 31 after the first issuance of
Securities under this Indenture.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed and also with the Commission. The Corporation will notify
the Trustee when any Securities are listed on any securities exchange.
Section 7.4. 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 is so required to be filed with the
Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Corporation May Consolidate, Etc., Only on Certain Terms.
The Corporation shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Corporation or convey, transfer or lease its properties and assets substantially
as an entirety to the Corporation, unless:
(1) if the Corporation shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the corporation formed by such consolidation
or into which the Corporation is merged or the Person that acquires by
conveyance or transfer, or that leases, the properties and assets of the
Corporation substantially as an entirety shall be a corporation,
partnership or trust organized and existing under the laws of the United
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States of America or any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest
(including any Additional Interest) on all the Securities of every series
and the performance of every covenant of this Indenture on the part of the
Corporation to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have occurred and be continuing; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture comply with this Article VIII and that all
conditions precedent herein provided for relating to such transaction have
been complied with; and the Trustee, subject to Section 6.1, may rely upon
such Officers' Certificate and Opinion of Counsel as conclusive evidence
that such transaction complies with this Section 8.1.
Section 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Corporation with or into any other
Person, or any conveyance, transfer or lease by the Corporation of its
properties and assets substantially as an entirety to any Person in accordance
with Section 8.1, the successor corporation 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 in the event
of any such conveyance, transfer or lease, the Corporation shall be discharged
from all obligations and covenants under this Indenture and the Securities.
Such successor Person may cause to be executed, and may issue either in its
own name or in the name of the Corporation, any or all of the Securities
issuable hereunder that theretofore shall not have been signed by the
Corporation and delivered to the Trustee; and, upon the order of such successor
Person instead of the Corporation and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities that previously shall have been signed and
delivered by the officers of the Corporation to the Trustee for authentication
pursuant to such provisions and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture.
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In case of any such consolidation, merger, conveyance, transfer or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE IX
Supplemental Indentures
Section 9.1. 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 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 contained herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon
the Corporation; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) 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 the series
specified) or to surrender any right or power herein conferred upon the
Corporation; or
(5) 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 the series specified); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall (a) become effective
only when there is no Security Outstanding of any series created prior to
the execution of such supplemental indenture that is entitled to the
benefit of such provision or (b) not apply to any Outstanding Securities;
or
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(7) 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 (7) shall not adversely affect the interest of the Holders
of Securities of any series in any material respect or, in the case of the
Securities of a series issued to an Issuer Trust and for so long as any of
the corresponding series of Preferred Securities issued by such Issuer
Trust shall remain outstanding, the holders of such Preferred Securities;
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 6.11(b); or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
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 of each series affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest (including any Additional 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 principal of a
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or change the
place of payment where, or the coin or currency in which, any Security or
interest (including any Additional 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
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such
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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 9.2, Section 5.13 or
Section 10.5, 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 Security affected thereby;
provided further, however, that, in the case of Securities of a series issued to
an Issuer Trust, so long as any of the corresponding series of Preferred
Securities issued by such Issuer Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Preferred
Securities in any material respect, and no termination of this Indenture shall
occur, and no waiver of any Event of Default or compliance with any covenant
under this Indenture shall be effective, without the prior consent of the
holders of at least a Majority in Liquidation Amount of such Preferred
Securities (as defined in the related Declaration of Trust) unless and until the
principal of (and premium, if any, on) the Securities of such series and all
accrued and (subject to Section 3.12) unpaid interest (including, subject to
Section 3.12, any Additional Interest) thereon have been paid in full, and (ii)
no amendment shall be made to Section 5.8 of this Indenture that would impair
the rights of the holders of Preferred Securities issued by any Issuer Trust
provided therein without the prior consent of the holders of each such Preferred
Security then outstanding unless and until the principal of (and premium, if
any, on) the Securities of such series and all accrued and (subject to Section
3.12) unpaid interest (including, subject to Section 3.12, any Additional
Interest) thereon have been paid in full.
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 any corresponding
series of Preferred Securities of an Issuer Trust that holds the Securities of
any series, or that modifies the rights of the Holders of Securities of such
series or holders of such Preferred Securities of such corresponding 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 or
holders of Preferred Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 9.2 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this
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Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that all conditions precedent
herein provided for relating to such action have been complied with. 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 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article IX,
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 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and shall if required by
the Corporation, bear a notation in form approved by the Corporation 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 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.
ARTICLE X
COVENANTS
Section 10.1. 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 premium,
if any) and interest (including any Additional Interest) on the Securities of
that series in accordance with the terms of such Securities and this Indenture.
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Section 10.2. 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 initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The
Corporation will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Corporation shall fail
to maintain such 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 may be presented or surrendered for any
or all of 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 and any change in the location of any such office or agency.
Section 10.3. Money for Security 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 premium, if any) or interest (including any Additional
Interest) on any of the Securities of such series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (or premium, if any) or interest (including any Additional 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
failure so to act.
Whenever the Corporation shall have one or more Paying Agents, it will,
prior to 10:00 a.m., New York City time, on each due date of the principal of
(or premium, if any) or interest (including any Additional Interest) on any
Securities, deposit with a Paying Agent a sum sufficient to pay the amount so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such amount, and (unless such Paying Agent is the Trustee) the
Corporation will promptly notify the Trustee of its failure so to act.
The Corporation will cause each Paying Agent 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 10.3,
that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities of a series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Corporation (or any
other obligor upon such Securities) in the making of any payment of
principal (or premium, if any) or interest (including any Additional
Interest) in respect of any Security of any series;
(3) at any time during the continuance of any default with respect to
a series of Securities, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying Agent with
respect to such series; and
(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
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 premium, if
any) or interest (including any Additional Interest) on any Security and
remaining unclaimed for two years after such principal (or premium, if any) or
interest (including any Additional Interest) has become due and payable shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Corporation Request to the
Corporation, or (if then held by the Corporation) shall (unless otherwise
required by mandatory provision of applicable escheat or abandoned or unclaimed
property law) 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; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Corporation cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of
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such publication, any unclaimed balance of such money then remaining will be
repaid to the Corporation.
Section 10.4. Statement as to Compliance.
The Corporation shall 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 covering the preceding calendar year, stating whether or
not to the best knowledge of the signers thereof the Corporation is in default
in the performance, observance or fulfillment of or compliance with any of the
terms, provisions, covenants and conditions of this Indenture, and if the
Corporation shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge. For the purpose of this Section
10.4, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
Section 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Preferred Securities specified in
Section 9.2, if any, the Corporation may omit in any particular instance to
comply with any covenant or condition provided pursuant to Section 3.1, 9.1(3)
or 9.1(4) with respect to the Securities of any series, if before or after the
time for such compliance the Holders of at least a majority in aggregate
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 covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the
Corporation in respect of any such covenant or condition shall remain in full
force and effect.
Section 10.6. Additional Sums.
In the case of the Securities of a series initially issued to an Issuer
Trust, so long as no Event of Default has occurred and is continuing and except
as otherwise specified as contemplated by Section 2.1 or Section 3.1, if (i) an
Issuer Trust is the Holder of all of the Outstanding Securities of such series,
and (ii) a Tax Event has occurred and is continuing in respect of such Issuer
Trust, the Corporation shall pay to such Issuer Trust (or its permitted
successor under the related Declaration of Trust) for so long as such Issuer
Trust (or its permitted successor) is the registered holder of the Outstanding
Securities of such series, together with any payment of principal of (or
premium, if any) or interest (including any Additional Interest) on such
Securities, such additional sums as may be necessary in order that the amount of
Distributions (including any Additional Amounts (as defined in such Declaration
of Trust)) then payable by such Issuer Trust in respect of the related Preferred
Securities and Common Securities in accordance with the terms thereof shall not
be reduced as a result of any Additional Taxes arising from such Tax Event (the
"Additional Sums").
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Whenever in this Indenture or the Securities there is a reference in any context
to the payment of principal of (or premium, if any) or interest (including any
Additional Interest) on the Securities, such mention shall be deemed to include
mention of the payments of the Additional Sums provided for in this paragraph to
the extent that, in such context, Additional Sums are, were or would be payable
in respect thereof pursuant to the provisions of this paragraph, and any express
mention of the payment of Additional Sums (if applicable) in any provision
hereof shall not be construed as excluding Additional Sums in those provisions
hereof where such express mention is not made; provided, however, that the
deferral of the payment of interest pursuant to Section 3.12 or the terms of the
Securities shall not defer the payment of any Additional Sums that may be due
and payable.
Section 10.7. Additional Covenants.
The Corporation covenants and agrees with each Holder of Securities of each
series that it shall not (x) declare or pay any dividends or distributions on,
or redeem purchase, acquire or make a liquidation payment with respect to, any
shares of the Corporation's capital stock, or (y) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation that rank pari passu in all respects with or
junior in interest to the Securities of such series (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Corporation
in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Corporation (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of an exchange or conversion
of any class or series of the Corporation's capital stock (or any capital stock
of a Subsidiary of the Corporation) for any class or series of the Corporation's
capital stock or of any class or series of the Corporation's indebtedness for
any class or series of the Corporation's capital stock, (c) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (d) any declaration of a dividend in connection
with any Rights Plan, or the issuance of rights, stock or other property under
any Rights Plan, or the redemption or repurchase of rights pursuant thereto, or
(e) any dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of such warrants, options
or other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock) if at such time (i) there shall
have occurred any event (A) of which the Corporation has actual knowledge that
with the giving of notice or the lapse of time, or both, would constitute an
Event of Default with respect to the Securities of such series, and (B) which
the Corporation shall not have taken reasonable steps to cure, (ii) if the
Securities of such series are held by an Issuer Trust, the Corporation shall be
in default with respect to its payment of any obligations under the Guarantee
Agreement relating to the Preferred Securities issued by such Issuer Trust, or
(iii) the Corporation shall
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have given notice of its election to begin an Extension Period with respect to
the Securities of such series as provided herein and shall not have rescinded
such notice, or such Extension Period, or any extension thereof, shall be
continuing.
The Corporation also covenants with each Holder of Securities of a series
issued to an Issuer Trust (i) to hold, directly or indirectly, 100% of the
Common Securities of such Issuer Trust, provided that any permitted successor of
the Corporation hereunder may succeed to the Corporation's ownership of such
Common Securities, (ii) as holder of such Common Securities, not to voluntarily
terminate, wind-up or liquidate such Issuer Trust, other than (a) in connection
with a distribution of the Securities of such series to the holders of the
related Preferred Securities in liquidation of such Issuer Trust, or (b) in
connection with any merger, consolidation or amalgamation permitted by the
related Declaration of Trust, and (iii) to use its reasonable efforts,
consistent with the terms and provisions of such Declaration of Trust, to cause
such Issuer Trust to continue to be classified as a grantor trust and not to be
taxable as a corporation for United States federal income tax purposes.
Section 10.8. Original Issue Discount.
For each year during which any Securities that were issued with original
issue discount are Outstanding, the Corporation shall furnish to each Paying
Agent in a timely fashion such information as may be reasonably requested by
each Paying Agent in order that such Paying Agent may prepare the information
that it is required to report for such year on Internal Revenue Service Forms
1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as
amended. Such information shall include the amount of original issue discount
includible in income for each $1,000 of principal amount at Stated Maturity of
Securities Outstanding during such year.
ARTICLE XI
Redemption of Securities
Section 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article XI; provided, however, that if any provision of any
such form of Security shall conflict with any provision of this Article XI, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of a series shall be
subject to partial redemption only in integral multiples of $1,000.
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Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Corporation, the Corporation shall, not less than 30 nor more than 60
days prior to the Redemption Date (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee and, in the case of Securities of a series
held by an Issuer Trust, the Property Trustee under the related Declaration of
Trust, of such date and of the principal amount of Securities of the applicable
series to be redeemed and provide the additional information required to be
included in the notice or notices contemplated by Section 11.4; provided that in
the case of any series of Securities initially issued to an Issuer Trust, for so
long as such Securities are held by such Issuer Trust, such notice shall be
given not less than 45 nor more than 75 days prior to such Redemption Date
(unless a shorter notice shall be satisfactory to the Property Trustee under the
related Declaration of Trust). 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, the Corporation shall furnish the Trustee with an Officers'
Certificate and an Opinion of Counsel evidencing compliance with such
restriction.
Section 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, 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.
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security that has been or is to be
redeemed.
Section 11.4. 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 the address of such Holder as it
appears in the Securities Register, provided that in the case of any series of
Securities initially issued to an Issuer Trust, for so long as such Securities
are held by such Issuer Trust, such notice shall be given
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not less than 45 nor more than 75 days prior to such Redemption Date (unless a
shorter notice shall be satisfactory to the Property Trustee under the related
Declaration of Trust).
With respect to Securities of each series to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, an estimate
of the Redemption Price together with a statement that it is an estimate
and that the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (and, if such an estimate of the
Redemption Price is given, a subsequent notice shall be given as set forth
above on the date that such Redemption Price is calculated setting forth
the actual Redemption Price);
(c) if less than all Outstanding Securities of such particular series
are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular Securities
to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest
(including any Additional Interest) thereon, if any, shall cease to accrue
on and after said date;
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the case;
(g) such other provisions as may be required in respect of the terms
of a particular series of Securities.
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. The notice if mailed in the manner provided above shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
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Section 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date specified
in the notice of redemption given as provided in Section 11.4, the Corporation
will deposit with the Trustee or with one or more Paying Agents (or, if the
Corporation is acting as its own Paying Agent, the Corporation will segregate
and hold in trust as provided in Section 10.3) an amount of money sufficient to
pay the Redemption Price of, and any accrued interest (including any Additional
Interest) on, all the Securities (or portions thereof) that are to be redeemed
on that date.
Section 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment in said
notice specified, the said Securities or the specified portions thereof shall be
paid and redeemed by the Corporation at the applicable Redemption Price,
together with accrued interest (including any Additional Interest) to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest (including any Additional
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 3.8.
Upon presentation of any Security redeemed in part only, the Corporation
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Corporation, a new Security or Securities of the
same series, of authorized denominations, in aggregate principal amount equal to
the unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of (and premium, if any, on) such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in such Security.
Section 11.7. Right of Redemption of Securities Initially Issued to an
Issuer Trust.
In the case of Securities of a series initially issued to an Issuer Trust,
except as otherwise specified as contemplated by Section 3.1, the Corporation,
at its option, may redeem such Securities (i) on or after the date specified in
such Security, in whole at any time or in part from time to time, or (ii) upon
the occurrence and during the continuation of a Tax Event, an Investment Company
Event or a Capital Treatment Event, in whole (but not
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in part) at any time within 90 days following the occurrence and during the
continuation of such Tax Event, Investment Company Event or Capital Treatment
Event (or, if the approval of the Board of Governors of the Federal Reserve
System is then required for such redemption, on such later date as promptly as
reasonably practicable after such approval is obtained), in each case at a
Redemption Price specified in such Security, together with accrued interest
(including any Additional Interest) to but excluding the Redemption Date.
If less than all the Securities of any such series are to be redeemed, the
aggregate principal amount of such Securities remaining Outstanding after giving
effect to such redemption shall be sufficient to satisfy any provisions of the
Declaration of Trust related to the Issuer Trust to which such Securities were
issued, including any requirement in such Declaration of Trust as to the minimum
Liquidation Amount (as defined in such Declaration of Trust) of Preferred
Securities that may be held by a holder of Preferred Securities thereunder.
ARTICLE XII
Sinking Funds
Section 12.1. 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 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any sinking fund payment in excess of such minimum amount that is
permitted to be made by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by the terms
of any Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of such Securities.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Corporation may at its
option, at any time no more than 16 months and no less than 45 days prior to the
date on which such sinking fund payment is due, deliver to the Trustee
Securities of such series (together with the unmatured coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Corporation, except Securities of such series that have been redeemed through
the application
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of mandatory or optional sinking fund payments pursuant to the terms of the
Securities of such series, accompanied by a Corporation Order instructing the
Trustee to credit such obligations and stating that the Securities of such
series were originally issued by the Corporation by way of bona fide sale or
other negotiation for value; 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
for such Securities, 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 12.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of 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 in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, that is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2, and will also deliver to the
Trustee any Securities to be so delivered. Such Officers' Certificate shall be
irrevocable and upon its delivery the Corporation shall be obligated to make any
cash payment or payments referred to therein, on or before the succeeding
sinking fund payment date. If the Corporation fails to deliver such Officers'
Certificate (or, as required by this Indenture, the Securities and coupons, if
any, specified in such Officers' Certificate) by the due date therefor, the
sinking fund payment due on the succeeding sinking fund payment date for such
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of the Securities of such series subject to a mandatory sinking
fund payment without the right to deliver or credit securities as provided in
Section 12.2 and without the right to make the optional sinking fund payment
with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Corporation, if the Corporation is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if such payment is
made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Securities
of such series at the Redemption Price specified in such Securities with respect
to the sinking fund. Any and all sinking fund moneys with respect to the
Securities of any particular series held by the Trustee (or, if the Corporation
is acting as its own Paying Agent, segregated and held in trust as provided in
Section 10.3) on the last sinking fund payment date with respect to Securities
of such series and not held for the payment or redemption of particular
Securities of such series shall be applied by the Trustee (or, by the
Corporation, if the Corporation is acting as its own Paying Agent), together
with
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other moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 11.4. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Section 11.6. On or before each sinking fund payment
date, the Corporation shall pay to the Trustee (or, if the Corporation is acting
as its own Paying Agent, the Corporation shall segregate and hold in trust as
provided in Section 10.3) in cash a sum in the currency in which Securities of
such series are payable (except as provided pursuant to Section 3.1) equal to
the principal (and premium, if any) and any interest (including any Additional
Interest) accrued to the Redemption Date for the Securities or portions thereof
to be redeemed on such sinking fund payment date pursuant to this Section 12.3.
Neither the Trustee nor the Corporation shall redeem any Securities of a
series with sinking fund monies or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest (including any Additional
Interest), if any, on any Securities of such series or of any Event of Default
(other than an Event of Default occurring as a consequence of this paragraph)
with respect to the Securities of such series, except that if the notice of
redemption shall have been provided in accordance with the provisions hereof,
the Trustee (or the Corporation, if the Corporation is acting as its own Paying
Agent) shall redeem such Securities if cash sufficient for that purpose shall be
deposited with the Trustee (or segregated by the Corporation) for that purpose
in accordance with the terms of this Article XII. Except as aforesaid, any
monies in the sinking fund for such series at the time when any such default or
Event of Default shall occur and any monies thereafter paid into such sinking
fund shall, during the continuance of such default or Event of Default, be held
as security for the payment of the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities of such series;
provided, however, that if such default or Event of Default shall have been
cured or waived as provided herein, such monies shall thereafter be applied on
the next sinking fund payment date for the Securities of such series on which
such monies may be applied pursuant to the provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
Section 13.1. Securities Subordinate to Senior Indebtedness.
The Corporation covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article XIII, the payment of the
principal of (and premium, if
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any) and interest (including any Additional Interest) on each and all of the
Securities of each and every series are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness.
Section 13.2. No Payment When Senior Indebtedness in Default; Payment Over
of Proceeds Upon Dissolution, Etc.
If the Corporation shall default in the payment of any principal of (or
premium, if any) or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, upon written notice of such
default to the Corporation by the holders of Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property or
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of (or premium, if any) or interest (including any
Additional Interest) on any of the Securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceedings relating
to the Corporation, its creditors or its property, (b) any proceeding for the
liquidation, dissolution or other winding up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings, (c)
any assignment by the Corporation for the benefit of creditors or (d) any other
marshalling of the assets of the Corporation (each such event, if any, herein
sometimes referred to as a "Proceeding"), all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any of the
Securities on account thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Corporation or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), that would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the Securities
of any series shall be paid or delivered directly to the holders of Senior
Indebtedness in accordance with the priorities then existing among such holders
until all Senior Indebtedness (including any interest thereon accruing after the
commencement of any Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of the Corporation ranking on a parity with
the Securities, shall be entitled to be
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paid from the remaining assets of the Corporation the amounts at the time due
and owing on account of unpaid principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Corporation ranking junior to the Securities and such other obligations.
If, notwithstanding the foregoing, any payment or distribution of any
character or any security, whether in cash, securities or other property (other
than securities of the Corporation or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof and before all Senior Indebtedness (including any interest thereon
accruing after the commencement of any Proceeding) shall have been paid in full,
such payment or distribution or security shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred to, the holders
of the Senior Indebtedness at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay all
such Senior Indebtedness (including any interest thereon accruing after the
commencement of any Proceeding) in full. If the Trustee or any Holder fails to
endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
The Trustee and the Holders shall take such action (including the delivery
of this Indenture to an agent for the holders of Senior Indebtedness or consent
to the filing of a financing statement with respect hereto) as may, in the
opinion of counsel designated by the holders of a majority in principal amount
of the Senior Indebtedness at the time outstanding, be necessary or appropriate
to assure the effectiveness of the subordination effected by these provisions.
The provisions of this Section 13.2 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Corporation in respect of any
security interest the creation of which is not prohibited by the provisions of
this Indenture.
The securing of any obligations of the Corporation, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
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Section 13.3. Payment Permitted If No Default.
Nothing contained in this Article XIII or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Corporation, at any time, except
during the pendency of the conditions described in the first paragraph of
Section 13.2 or of any Proceeding referred to in Section 13.2, from making
payments at any time of principal of (and premium, if any) or interest
(including any Additional Interest) on the Securities, or (b) the application by
the Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article XIII.
Section 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on all
Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article XIII (equally and ratably with the
holders of all indebtedness of the Corporation that by its express terms is
subordinated to Senior Indebtedness of the Corporation to substantially the same
extent as the Securities are subordinated to the Senior Indebtedness and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Indebtedness) 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 (and premium, if any) and interest (including any Additional
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 XIII, and no payments over pursuant to the provisions of this Article
XIII 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 such Senior
Indebtedness.
Section 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article XIII 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 on the other hand. Nothing
contained in this Article XIII or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as between the Corporation and
the Holders of the Securities, the obligations of the Corporation, which are
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absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest (including any Additional
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 their rights in relation to the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security (or to the extent
expressly provided herein, the holder of any Preferred Security) from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, including filing and voting claims in any Proceeding, subject to the
rights, if any, under this Article XIII of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security, by its acceptance thereof, authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination provided
in this Article XIII and appoints the Trustee such Holder's attorney-in-fact for
any and all such purposes.
Section 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness 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 noncompliance by the Corporation with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness may, at any time and from to time,
without the consent of or notice to the Trustee or the Holders of the Securities
of any series, without incurring responsibility to such Holders and without
impairing or releasing the subordination as provided in this Article XIII or the
obligations hereunder of such Holders 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.
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Section 13.8. Notice to Trustee.
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 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 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, agent or
representative therefor; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 13.8 at least two Business Days
prior to the date upon which by the terms hereof any monies may become payable
for any purpose (including the payment of the principal of (and premium, if any,
on) or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any notice
to the contrary that may be received by it within two Business Days prior to
such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
or herself to be a holder of Senior Indebtedness (or a trustee or attorney-in-
fact therefor) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee or attorney-in-fact therefor). If the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article XIII, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, 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 XIII, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Section 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Corporation referred to
in this Article XIII, the Trustee, subject to the provisions of Section 6.1, 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 any 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, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XIII.
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Section 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Corporation or to any other
Person cash, property or securities to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article XIII or otherwise.
Section 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XIII with respect to any Senior Indebtedness that may
at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Section 13.12. Article Applicable to Paying Agents.
If 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.
Section 13.13. Securities to Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases.
Subject to the provisions of this Section 13.13 and to any provisions
established or determined with respect to Securities of any series pursuant to
Section 3.1, the Securities of each series shall not be superior in right of
payment to, and shall rank pari passu with, (i) all indebtedness of the
Corporation issued pursuant to its Junior Subordinated Indenture, dated as of
December 2, 1996, between the Corporation and Wilmington Trust Company, as
trustee, as modified, amended or supplemented from time to time, (ii) all
indebtedness of the Corporation issued pursuant to its Junior Subordinated
Indenture, dated as of January 16, 1997, between the Corporation and Wilmington
Trust Company, as trustee, as modified, amended or supplemented from time to
time, and (iii) any other security, guarantee or other agreement or obligation
that is expressly stated to rank pari passu with the obligations of the
Corporation under this Indenture or the Securities or with any obligation that
ranks pari passu with the obligations of the Corporation under this Indenture or
the Securities.
Upon the occurrence of any of the events specified in clauses (a), (b), (c)
and (d) of the second paragraph of Section 13.2, the provisions of that Section
and the corresponding
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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 Junior Subordinated Indebtedness, on the other hand.
* * * *
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.
In Witness Whereof, the parties hereto have caused this Junior Subordinated
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
Bankers Trust New York Corporation
[SEAL]
By:
---------------------------------
Name:
Title:
[SEAL] Wilmington Trust Company,
as Trustee
By:
---------------------------------
Name:
Title:
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 s/he is ............................ of Bankers
Trust Corporation, one of the corporations described in and which executed the
foregoing instrument; that s/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 s/he signed
her/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 s/he is ............................ of
Wilmington Trust Company, one of the corporations described in and which
executed the foregoing instrument; that s/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
s/he signed her/his name thereto by like authority.
.....................................
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EXHIBIT 4.2
BANKERS TRUST NEW YORK CORPORATION
7.90% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, SERIES B1
No. B1-1 $257,732,000
BANKERS TRUST NEW YORK CORPORATION, a corporation organized and
existing under the laws of New York (hereinafter called the "Corporation", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to WILMINGTON TRUST COMPANY, as
Property Trustee of the Issuer Trust referred to below, or registered assigns,
the principal sum of Two Hundred Fifty Seven Million Seven Hundred Thirty-Two
Thousand Dollars on January 15, 2027, or such other principal amount represented
hereby as may be set forth in the records of the Securities Registrar
hereinafter referred to in accordance with the Indenture; provided that the
Corporation may shorten the Stated Maturity of the principal of this Security,
as provided in the Indenture, at any time on one or more occasions, subject to
certain conditions specified in Paragraph 3 on the reverse hereof, but in no
event to a date earlier than January 15, 2017. The Corporation further promises
to pay interest on said principal sum from the Interest Accrual Date (as
defined on the reverse hereof), or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually (subject to
deferral as set forth herein) in arrears on January 15 and July 15 of each year,
commencing on the first such date after the date of original issuance of this
Security, at the rate of 7.90% per annum, together with Additional Sums, if any,
as provided in Section 10.6 of the Indenture, until the principal hereof is paid
or duly provided for or made available for payment; provided that any overdue
principal, premium or Additional Sums and any overdue installment of interest
shall bear Additional Interest at the rate of 7.90% per annum (to the extent
that the payment of such interest shall be legally enforceable), compounded
semi-annually, 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 amount
of interest payable for any period less than a full interest period shall be
computed on the basis of a 360-day year of twelve 30-day months and the actual
days elapsed in a partial month in such period. The amount of interest payable
for any full interest period shall be computed by dividing the applicable rate
per annum by two. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest installment, which shall be the fifteenth day (whether or not a
Business Day) next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for shall 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
<PAGE>
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.
So long as no Event of Default has occurred and is continuing, the
Corporation shall have the right, at any time during the term of this Security,
from time to time to defer the payment of interest on this Security for up to 10
consecutive semi-annual interest payment periods with respect to each deferral
period (each an "Extension Period"), at the end of which the Corporation shall
pay all interest then accrued and unpaid (including any Additional Interest, as
provided below); provided, however, that no Extension Period shall extend beyond
the Stated Maturity of the principal of this Security, as in effect on the date
on which the Corporation elects to defer the payment of interest, and no such
Extension Period may end on a date other than an Interest Payment Date; and
provided further, however, that during any such Extension Period, the
Corporation shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Corporation's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation that rank pari passu in all respects with or
junior in interest to this Security (other than (a) repurchases, redemptions or
other acquisitions of shares of capital stock of the Corporation in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or stockholder stock
purchase plan or in connection with the issuance of capital stock of the
Corporation (or securities convertible into or exercisable for such capital
stock) as consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of an exchange or conversion of any
class or series of the Corporation's capital stock (or any capital stock of a
Subsidiary of the Corporation) for any class or series of the Corporation's
capital stock or of any class or series of the Corporation's indebtedness for
any class or series of the Corporation's capital stock, (c) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (d) any declaration of a dividend in connection
with any Rights Plan, or the issuance of rights, stock or other property under
any Rights Plan, or the redemption or repurchase of rights pursuant thereto, or
(e) any dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of such warrants, options
or other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock). Prior to the termination of any
such Extension Period, the Corporation may further defer the payment of
interest, provided that no Extension Period shall exceed 10 consecutive semi-
annual interest payment periods, extend beyond the Stated Maturity of the
principal of this Security, as in effect on the date on which the Corporation
elects to further defer the payment of interest, or end on a date other than an
Interest Payment Date. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due on any Interest Payment Date, the Corporation may elect to begin a new
Extension Period, subject to the above conditions. No interest shall be due and
payable during an Extension Period, except at the end thereof, but each
-2-
<PAGE>
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest (to the extent that the
payment of such interest shall be legally enforceable) at the rate of 7.90% per
annum, compounded semi-annually and calculated as set forth in the first
paragraph of this Security, from the dates on which amounts would otherwise have
been due and payable until paid or made available for payment. The Corporation
shall give the Holder of this Security and the Trustee notice of its election to
begin any Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on this Security would be
payable but for such deferral or so long as such Securities are held by BT
Capital Trust B, a Delaware statutory business trust (the "Issuer Trust"), at
least one Business Day prior to the earlier of (i) the next succeeding date on
which Distributions on the Capital Securities of such Issuer Trust would be
payable but for such deferral, and (ii) the date on which the Property Trustee
of such Issuer Trust is required to give notice to holders of such Capital
Securities of the record date or the date such Distributions are payable.
Payment of the principal of (and premium, if any) and interest
(including any Additional Interest) on this Security will be made at the office
or agency of the Corporation maintained for that purpose in Wilmington,
Delaware, 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.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior 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, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such actions as may be necessary or appropriate to effectuate the subordination
so provided, and (c) appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes. Each Holder hereof, by such Holder's acceptance hereof,
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
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.
-3-
<PAGE>
In Witness Whereof, the Corporation has caused this instrument to be
duly executed under its corporate seal.
Bankers Trust New York Corporation
By:
--------------------------------------
Name:
Title:
Attest:
- -----------------------------------
[Secretary or Assistant Secretary]
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
Wilmington Trust Company,
as Trustee
By:
----------------------------------------
Authorized Officer
-4-
<PAGE>
[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 the Junior Subordinated Indenture, dated as of February 5,
1997 (herein called the "Indenture"), between the Corporation and WILMINGTON
TRUST COMPANY, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Corporation, the Trustee, the holders of Senior Indebtedness 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, limited in aggregate principal amount to $257,732,000.
1. Defined Terms. All terms used in this Security that are defined in
the Indenture or in the Amended and Restated Trust Agreement, dated as of
_________ __, 1997 (as modified, amended or supplemented from time to time, the
"Trust Agreement"), relating to the Issuer Trust, among the Corporation, as
Depositor, the Issuer Trustees named therein and the Holders from time to time
of the Trust Securities issued pursuant thereto, shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may be,
unless otherwise defined herein.
"Adverse Tax Consequence" has the meaning specified in the definition of
Tax Event below.
"Capital Securities" means the 7.90% Capital Securities, Series B1, of the
Issuer Trust, which Capital Securities constitute a series of Preferred
Securities within the meaning of such term as defined in the Indenture.
"Capital Treatment Event" means the reasonable determination by the
Corporation (as evidenced by an Officers' Certificate delivered to the Trustee)
that, as a result of the occurrence of any amendment to, or change (including
any announced proposed change) in, the laws (or any rules or regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws, rules or
regulations, which amendment or change is effective or which pronouncement,
action or decision is announced on or after January 9, 1997, there is more than
an insubstantial risk that the Corporation will not be entitled to treat an
amount equal to the aggregate Liquidation Amount (as such term is defined in the
Trust Agreement) of such Capital Securities as "Tier 1 Capital" (or the then
equivalent thereof) for purposes of the capital adequacy guidelines of the Board
of Governors of the Federal Reserve System, as then in effect and applicable to
the Corporation.
"Common Securities" means the common securities of the Issuer Trust.
-5-
<PAGE>
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, or any successor thereto.
The "Interest Accrual Date" means the last Interest Payment Date in respect
of the 7.90% Junior Subordinated Deferrable Interest Debentures, Series A1, of
the Corporation to which interest has been paid or duly provided for or, if no
Interest Payment Date in respect of such series of Securities has occurred at or
prior to the date of original issuance of this Security, January 16, 1997.
"Investment Company Event" means the receipt by the Issuer Trust or the
Corporation of an Opinion of Counsel (as defined in the Trust Agreement)
experienced in such matters to the effect that, as a result of the occurrence of
a change in law or regulation or a change (including any announced proposed
change) in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, there is more than an
insubstantial risk that such Issuer Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which change or proposed change becomes effective or would become
effective, as the case may be, on or after January 9, 1997.
"Maturity Advancement" shall mean the action of shortening the Stated
Maturity of this Security as provided in Paragraph 3 below.
"Tax Event" means the receipt by the Issuer Trust or the Corporation of an
Opinion of Counsel (as defined in the Trust Agreement) experienced in such
matters to the effect that, as a result of any amendment to, or change
(including any announced proposed change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after January 9, 1997, there is more than an
insubstantial risk that (i) such Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States Federal income
tax with respect to income received or accrued on the corresponding series of
Securities issued by the Corporation to such Issuer Trust, (ii) interest payable
by the Corporation on such corresponding series of Securities is not, or within
90 days of the delivery of such Opinion of Counsel will not be, deductible by
the Corporation, in whole or in part, for United States Federal income tax
purposes, or (iii) such Issuer Trust is, or will be within 90 days of the
delivery of such Opinion of Counsel, subject to more than a de minimis amount of
other taxes, duties or other governmental charges (each of the circumstances
referred to in clause (i), (ii) or (iii) of this definition being referred to
herein as an "Adverse Tax Consequence").
"Trust Securities" means, collectively, the Capital Securities and the
Common Securities.
-6-
<PAGE>
Redemption at Corporation's Option. The Corporation may at any time, at its
option, on or after January 15, 2007, and subject to the terms and conditions of
Article XI of the Indenture, redeem this Security in whole at any time or in
part from time to time, at the following Redemption Prices (expressed as
percentages of the principal amount hereof): If redeemed during the 12-month
period beginning January 15,
<TABLE>
<CAPTION>
Redemption
Year Price
---- ----------
<S> <C>
2007 103.4120%
2008 103.0708%
2009 102.7296%
2010 102.3884%
2011 102.0472%
2012 101.7060%
2013 101.3648%
2014 101.0236%
2015 100.6824%
2016 100.3412%
</TABLE>
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, together, in the case of any such redemption, with accrued interest,
including any Additional Interest, to but excluding the date fixed for
redemption.
3. Tax Events, Investment Company Events and Capital Treatment Events.
In addition:
(a) if at any time a Tax Event, Investment Company Event or a Capital
Treatment Event occurs and either:
(i) in the opinion of counsel to the Corporation experienced in such
matters, there would be more than an insubstantial risk that, after the
distribution of this Security to the holders of the Trust Securities in
liquidation of the Issuer Trust, an Adverse Tax Consequence would continue
to exist, or
(ii) in the reasonable determination of the Corporation, there would
be more than an insubstantial risk that, after the distribution of this
Security to the holders of the Trust Securities in liquidation of the
Issuer Trust, the Corporation would not be entitled to treat an amount
equal to the Liquidation Amount of the Capital Securities as "Tier 1
Capital" (or the then equivalent thereof) for purposes of the capital
-7-
<PAGE>
adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Corporation,
or if, at the time of such Tax Event, Investment Company Event or Capital
Treatment Event, this Security is not held by the Issuer Trust, then the
Corporation shall have the right (without being required to dissolve the Issuer
Trust) to shorten the Stated Maturity of this Security, such that, in the
opinion of counsel to the Corporation experienced in such matters, after so
advancing the Stated Maturity, the interest paid hereon will be deductible for
United States Federal income tax purposes; provided, however, that the
Corporation may shorten the Stated Maturity of this Security (x) only to the
minimum extent to achieve such effect, and (y) in any event only to a date not
earlier than January 15, 2017.
(b) If either:
(x) in the opinion of counsel to the Corporation experienced in such
matters, there would be more than an insubstantial risk that, after the
Corporation has effected a Maturity Advancement, an Adverse Tax Consequence
would continue to exist, or
(y) in the reasonable determination of the Corporation, there would be
more than an insubstantial risk that after the Corporation has effected a
Maturity Advancement (or, for the avoidance of doubt, after the
distribution of this Security to the holders of the Trust Securities in
liquidation of the Issuer Trust), the Corporation would not be entitled to
treat an amount equal to the Liquidation Amount of the Capital Securities
as "Tier 1 Capital" (or the then equivalent thereof) for purposes of the
capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Corporation,
or if the Federal Reserve does not approve the Maturity Advancement following
the Corporation's request, then the Corporation shall have the right (without
being required to effect a Maturity Advancement), subject to the terms and
conditions of Article XI of the Indenture, to redeem this Security in whole (but
not in part) at a Redemption Price equal to 100% of the aggregate principal
amount hereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, to but excluding the date fixed for
redemption, at any time within 90 days following the occurrence of such Tax
Event, Investment Company Event or Capital Treatment Event (or, if the approval
of the Federal Reserve is then required for such redemption, on such later date
as promptly as is reasonably practicable after such approval is obtained).
4. Redemptions Generally. The provisions of Section 11.7 of the
Indenture shall not apply to this Security.
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
-8-
<PAGE>
5. Satisfaction and Discharge. The Indenture contains provisions for
satisfaction and discharge of the entire indebtedness of this Security upon
compliance by the Corporation with certain conditions set forth in the
Indenture.
6. Amendments and Waivers. The Indenture permits, with certain
exceptions as therein provided, the Corporation and the Trustee at any time to
enter into a supplemental indenture or indentures for the purpose of modifying
in any manner the rights and obligations of the Corporation and of the Holders
of the Securities, with the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series to be affected
by such supplemental indenture. The Indenture also contains provisions
permitting 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.
7. Events of Default. As provided in and subject to the provisions of
the Indenture, if an Event of Default with respect to the Securities of this
series at the time Outstanding occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of this series may declare the principal
amount of all the Outstanding Securities of this series to be due and payable
immediately, by a notice in writing to the Corporation (and to the Trustee if
given by Holders), provided that, if upon an Event of Default, the Trustee or
such Holders fail to declare the principal of all the Outstanding Securities of
this series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Capital Securities then outstanding shall
have the right to make such declaration by a notice in writing to the
Corporation and the Trustee; and upon any such declaration the principal amount
of and the accrued interest (including any Additional Interest) on all the
Securities of this series shall become immediately due and payable, provided
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIII of the Indenture.
8. Obligations Absolute. 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 premium, if any) and interest (including any Additional
Interest) on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
9. Transfers. As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the
-9-
<PAGE>
Corporation maintained under Section 10.2 of the Indenture for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Securities Registrar duly executed by,
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Securities of this series, 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 $100,000 and any integral multiple of $1,000 in
excess thereof. As provided in the 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.
10. Persons Deemed Holders. 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.
11. Characterization. The Corporation and, by its acceptance of this
Security or a beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, this Security agree that for United States
Federal, state and local tax purposes it is intended that this Security
constitute indebtedness.
12. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-10-
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF TRUST OF
BT CAPITAL TRUST B
THIS Certificate of Trust of BT Capital Trust B (the "Trust"), dated
February 28, 1997, has been duly executed and is being filed by Wilmington Trust
Company, a Delaware banking corporation, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. C. (S) 3801 et seq.).
------- -- ---
1. Name. The name of the business trust formed hereby is BT
----
Capital Trust B.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attn:
Corporate Trust Administration.
IN WITNESS WHEREOF, the undersigned trustee of the Trust has executed
this Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY,
as trustee
By: /s/ Emmett R. Harmon
-------------------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE>
EXHIBIT 4.4
TRUST AGREEMENT
of
BT CAPITAL TRUST B
TRUST AGREEMENT (this "Trust Agreement"), dated as of February 28,
1997, between Bankers Trust New York Corporation, a New York corporation, as
"Depositor," and Wilmington Trust Company, as "Trustee." The Depositor and the
Trustee hereby agree as follows:
1. The trust created hereby shall be known as BT Capital Trust B
(the "Issuer Trust"), in which name the Trustee, or the Depositor to the extent
provided herein, may conduct the business of the Issuer Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Issuer Trust created hereby constitutes a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust
------- -- ---
Act"), and that this document constitutes the governing instrument of the Issuer
Trust. The Trustee is hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with the
provisions of the Business Trust Act.
3. The Depositor and the Trustee will enter into an amended and
restated declaration of trust or trust agreement (the "Amended Agreement"),
satisfactory to each such party, to provide for the contemplated operation of
the Issuer Trust created hereby and the issuance of the securities referred to
in the Securities Act Registration Statement (as defined below), which
securities may be denominated as the "Capital Securities" and the "Common
Securities." Prior to the execution and delivery of the Amended Agreement, the
Trustee shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise.
4. The Depositor and the Trustee hereby authorize and empower the
Depositor, as the sponsor of the Issuer Trust, (i) to file with the Securities
and Exchange Commission (the "Commission") and execute, in each case on behalf
of the Issuer Trust, (a) the Registration Statement on Form S-4 (the "Securities
Act Registration Statement"), including any pre-effective or post-effective
amendments to the Securities Act Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Capital
Securities and, if necessary or desired, any other securities, referred to
therein, and (b) if so determined by the Depositor, a Registration Statement on
Form 8-A, including all pre-effective and post-effective amendments thereto
(including the exhibits contained therein or forming a
<PAGE>
part thereof) relating to the registration of the Capital Securities of the
Issuer Trust under the Securities Exchange Act of 1934, as amended; (ii) if so
determined by the Depositor, to file with the New York Stock Exchange, Inc. or
any other national stock exchange or The Nasdaq National Market or any other
interdealer quotation system (each, an "Exchange") and execute on behalf of the
Issuer Trust one or more listing applications and all other applications,
statements, certificates, agreements and other instruments as the Depositor, on
behalf of the Issuer Trust, may deem necessary or desirable to cause the Capital
Securities to be listed on any of the Exchanges; (iii) to file and execute on
behalf of the Issuer Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Issuer Trust, may deem necessary or
desirable to register the Capital Securities under the securities or blue sky
laws of such jurisdictions as the Depositor, on behalf of the Issuer Trust, may
deem necessary or desirable, (iv) to execute, deliver and perform on behalf of
the Issuer Trust one or more underwriting agreements, purchase agreements,
registration rights agreements, dealer manager agreements, escrow agreements,
subscription agreements and other similar or related agreements providing for or
relating to the sale or delivery of the Capital Securities; (v) to execute,
deliver and perform on behalf of the Issuer Trust any and all agreements,
documents, papers and instruments as may be necessary or desirable in connection
the consummation of the transactions contemplated by THE EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT, DATED AS OF JANUARY 16, 1997, BY AND AMONG
BANKERS TRUST NEW YORK CORPORATION, A NEW YORK CORPORATION, BT CAPITAL TRUST A,
A DELAWARE STATUTORY BUSINESS TRUST, AND LEHMAN BROTHERS INC., AS THE INITIAL
PURCHASER OF THE 7.90% CAPITAL SECURITIES, SERIES A1 OF BT CAPITAL TRUST A, and
(vi) to execute on behalf of the Issuer Trust any and all documents, papers and
instruments as may be desirable in connection with any of the foregoing. If any
filing referred to in clauses (i), (ii) and (iii) above is required by law or by
the rules and regulations of applicable governmental agency, self-regulatory
organization or other person or organization to be executed on behalf of the
Issuer Trust by a trustee of the Issuer Trust, the Depositor and any trustee of
the Issuer Trust appointed pursuant to Section 6 hereof are hereby authorized to
join in any such filing and to execute on behalf of the Issuer Trust any and all
of the foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The Trustee shall initially be the only trustee of the Issuer
Trust. Thereafter, the Depositor may increase or decrease (but not below one)
the number of trustees of the Issuer Trust by executing a written instrument
fixing such number; provided, however, that so long as it is required by the
-------- -------
Business Trust Act, one trustee of the Issuer Trust shall be either a natural
person who is a resident of the State of Delaware or an entity other than a
natural person that has its principal place of business in the State of Delaware
and that, in either case, otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled to appoint or
remove without cause any trustee at any time. The Trustee may resign upon
thirty days' prior notice to the Depositor.
-2-
<PAGE>
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[SIGNATURE PAGE FOLLOWS]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly executed as of the day and year first above written.
BANKERS TRUST NEW YORK
CORPORATION, as Depositor
By: /s/ Gordon S. Calder, Jr.
------------------------------------
Name: Gordon S. Calder, Jr.
Title: Senior Vice President
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Emmett R. Harmon
------------------------------------
Name: Emmett R. Harmon
Title: Vice President
-4-
<PAGE>
EXHIBIT 4.5
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
BANKERS TRUST NEW YORK CORPORATION,
as Depositor,
WILMINGTON TRUST COMPANY,
as Property Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and the several Holders of the Trust Securities
---------------
Dated as of _______ __, 1997
---------------
BT CAPITAL TRUST B
================================================================================
<PAGE>
CERTAIN SECTIONS OF THIS TRUST AGREEMENT RELATING TO
SECTIONS 310 THROUGH 318 OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE DECLARATION OF
ACT SECTION TRUST SECTION
- --------------- --------------
<C> <S>
(S) 310 (a)(1)...................................... 8.7
(a)(2)...................................... 8.7
(a)(3)...................................... 8.9
(a)(4)...................................... 2.7(a)(ii)
(b)......................................... 8.8
(S) 311 (a)......................................... 8.13
(b)......................................... 8.13
(S) 312 (a)......................................... 5.8
(b)......................................... 5.8
(c)......................................... 5.8
(S) 313 (a)......................................... 8.15(a)
(a)(4)...................................... 8.15(b)
(b)......................................... 8.15(b)
(c)......................................... 10.8
(d)......................................... 8.15(c)
(S) 314 (a)......................................... 8.16
(b)......................................... Not Applicable
(c)(1)...................................... 8.17
(c)(2)...................................... 8.17
(c)(3)...................................... Not Applicable
(d)......................................... Not Applicable
(e)......................................... 1.1, 8.17
(S) 315 (a)......................................... 8.1(a), 8.3(a)
(b)......................................... 8.2, 10.8
(c)......................................... 8.1(a)
(d)......................................... 8.1, 8.3
(e)......................................... Not Applicable
(S) 316 (a)......................................... Not Applicable
(a)(1)(A)................................... Not Applicable
(a)(1)(B)................................... Not Applicable
(a)(2)...................................... Not Applicable
(b)......................................... 5.15
(c)......................................... 6.7
(S) 317 (a)(1)...................................... Not Applicable
(a)(2)...................................... Not Applicable
(b)......................................... 5.10
(S) 318 (a)......................................... 10.10
</TABLE>
--------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Defined Terms
<TABLE>
<S> <C>
Section 1.1. Definitions.................................................... 1
ARTICLE II
Continuation of the Issuer Trust
Section 2.1. Name........................................................... 11
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.... 11
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses 11
Section 2.4. Issuance of the Trust Securities in Exchange for Debentures.... 12
Section 2.5. Declaration of Trust........................................... 12
Section 2.6. Authorization to Enter into Certain Transactions............... 12
Section 2.7. Assets of Trust................................................ 16
Section 2.8. Title to Trust Property........................................ 16
ARTICLE III
Payment Account
Section 3.1. Payment Account................................................ 16
ARTICLE IV
Distributions; Redemption
Section 4.1. Distributions.................................................. 17
Section 4.2. Redemption..................................................... 18
Section 4.3. Subordination of Common Securities............................. 20
Section 4.4. Payment Procedures............................................. 21
Section 4.5. Tax Returns and Reports........................................ 21
Section 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust............. 21
Section 4.7. Payments under Indenture or Pursuant to Direct Actions......... 22
Section 4.8. Liability of the Holder of Common Securities................... 22
</TABLE>
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ARTICLE V
Trust Securities Certificates
<TABLE>
<S> <C>
Section 5.1. Initial Ownership.............................................. 22
Section 5.2. The Trust Securities Certificates.............................. 22
Section 5.3. Execution and Delivery of Trust Securities Certificates........ 23
Section 5.4. Global Capital Securities...................................... 24
Section 5.5. Registration, Transfer and Exchange of Capital Securities...... 24
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.................................................. 26
Section 5.7. Persons Deemed Holders......................................... 26
Section 5.8. Access to List of Holders' Names and Addresses................. 26
Section 5.9. Maintenance of Office or Agency................................ 26
Section 5.10. Appointment of Paying Agents.................................. 27
Section 5.11. Ownership of Common Securities by Depositor................... 27
Section 5.12. Rights of Holders; Waivers of Past Defaults................... 28
ARTICLE VI
Acts of Holders; Meetings; Voting
Section 6.1. Limitations on Voting Rights................................... 30
Section 6.2. Notice of Meetings............................................. 31
Section 6.3. Meetings of Holders of the Capital Securities.................. 31
Section 6.4. Voting Rights.................................................. 32
Section 6.5. Proxies, etc................................................... 32
Section 6.6. Holder Action by Written Consent............................... 32
Section 6.7. Record Date for Voting and Other Purposes...................... 33
Section 6.8. Acts of Holders................................................ 33
Section 6.9. Inspection of Records.......................................... 34
ARTICLE VII
Representations and Warranties
Section 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.......................................... 34
Section 7.2. Representations and Warranties of Depositor.................... 35
</TABLE>
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ARTICLE VIII
The Issuer Trustees; Paying Agents
<TABLE>
<S> <C>
Section 8.1. Certain Duties and Responsibilities........................... 36
Section 8.2. Certain Notices............................................... 38
Section 8.3. Certain Rights of Property Trustee............................ 39
Section 8.4. Not Responsible for Recitals or Issuance of Securities........ 41
Section 8.5. May Hold Securities........................................... 41
Section 8.6. Compensation; Indemnity; Fees................................. 41
Section 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees..................................................... 42
Section 8.8. Conflicting Interests......................................... 43
Section 8.9. Co-Trustees and Separate Trustee.............................. 43
Section 8.10. Resignation and Removal; Appointment of Successor............ 45
Section 8.11. Acceptance of Appointment by Successor....................... 46
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.. 47
Section 8.13. Preferential Collection of Claims Against Depositor or
Issuer Trust................................................ 47
Section 8.14. Property Trustee May File Proofs of Claim.................... 47
Section 8.15. Reports by Property Trustee.................................. 48
Section 8.16. Reports to the Property Trustee.............................. 49
Section 8.17. Evidence of Compliance with Conditions Precedent............. 49
Section 8.18. Number of Issuer Trustees.................................... 49
Section 8.19. Delegation of Power.......................................... 49
Section 8.20. Appointment of Administrative Trustees....................... 50
ARTICLE IX
Termination, Liquidation and Merger
Section 9.1. Termination Upon Expiration Date.............................. 50
Section 9.2. Early Termination............................................. 51
Section 9.3. Termination................................................... 51
Section 9.4. Liquidation................................................... 52
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust................................................. 53
</TABLE>
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ARTICLE X
Miscellaneous Provisions
<TABLE>
<S> <C>
Section 10.1. Limitation of Rights of Holders.............................. 54
Section 10.2. Amendment.................................................... 54
Section 10.3. Separability................................................. 56
Section 10.4. Governing Law................................................ 56
Section 10.5. Payments Due on Non-Business Day............................. 56
Section 10.6. Successors................................................... 56
Section 10.7. Headings..................................................... 56
Section 10.8. Reports, Notices and Demands................................. 56
Section 10.9. Agreement Not to Petition.................................... 57
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act...... 58
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee Agreement
and Indenture.............................................. 58
Section 10.12. Counterparts................................................ 59
</TABLE>
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Capital Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of ________ __, 1997, among (i)
Bankers Trust New York Corporation, a New York corporation (including any
successors or assigns, the "Depositor"), (ii) Wilmington Trust Company, a
banking corporation duly organized and existing under the laws of the State of
Delaware, as property trustee (in such capacity, the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) Wilmington Trust Company, a banking corporation duly organized
and existing under the laws of the State of Delaware, as Delaware trustee (in
such capacity, the "Delaware Trustee"), (iv) John P. Hardt, an individual, and
Manuel J. Schnaidman, an individual, each of whose address is c/o Bankers Trust
New York Corporation, 130 Liberty Street, New York, New York 10006 (each an
"Administrative Trustee") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees being referred to collectively as the "Issuer
Trustees"), and (v) the several Holders, as hereinafter defined.
Witnesseth
Whereas, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into the Trust Agreement, dated as of February 28, 1997
(the "Original Trust Agreement"), and by the execution and filing by the
Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on February 28, 1997, attached as Exhibit A; and
Whereas, the Depositor and the Issuer Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Issuer
Trust to the Depositor, (ii) the issuance and sale of the Capital Securities by
the Issuer Trust pursuant to the Registration Rights Agreement (as defined
herein), (iii) the acquisition by the Issuer Trust from the Depositor of all of
the right, title and interest in the Debentures, and (iv) the appointment of the
Administrative Trustees;
Now Therefore, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
Defined Terms
Section I.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
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(a) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(b) 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;
(c) The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(e) Unless the context otherwise requires, any reference to an "Article", a
"Section" or an "Exhibit" refers to an Article, a Section or an Exhibit, as the
case may be, of or to this Trust Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Distributions" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrative Trustee of the
Issuer Trust heretofore created and continued hereunder and not in such Person's
individual capacity, or any successor trustee appointed as herein provided.
"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.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
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"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or the
Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed, or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Capital Securities Certificate" means a certificate evidencing ownership
of Capital Securities, substantially in the form attached as Exhibit E.
"Capital Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
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"Certificate Depository Agreement" means the agreement among the Issuer
Trust, the Depositor and DTC, as the initial Depositary, dated as of the Time of
Delivery, substantially in the form attached as Exhibit B, as the same may be
amended and supplemented from time to time.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, as amended, or, if at any time
after the execution of this instrument such Securities and Exchange Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located in Wilmington,
Delaware, and (ii) when used with respect to the Debenture Trustee, the
principal office of the Debenture Trustee located in Wilmington, Delaware.
"Debenture Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of such Debentures
under the Indenture.
"Debenture Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Debentures" means the Depositor's 7.90% Junior Subordinated Deferrable
Interest Debentures, Series B1, issued pursuant to the Indenture.
"Definitive Capital Securities Certificates" means either or both (as the
context requires) of (i) Capital Securities Certificates issued as Global
Capital Securities Certificates as provided
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in Section 5.2 or 5.4, and (ii) Capital Securities Certificates issued in
certificated, fully registered form as provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code (S) 3801 et seq., or any successor statute thereto, in each
case as amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Delaware Trustee
of the trust heretofore created and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as herein provided.
"Depositary" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. DTC
will be the initial Depositary.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall 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):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(c) default by the Issuer Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Issuer Trustees in this Trust Agreement (other than
those specified in clause (b) or (c) above) and continuation of such default or
breach for a period of 60 days after there has
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been given, by registered or certified mail, to the Issuer Trustees and to the
Depositor by the Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Capital Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within 90 days
thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any successor
statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities,
dated as of the date hereof, between Bankers Trust New York Corporation, as
Common Securityholder and the Issuer Trust, substantially in the form attached
as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Capital Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Global Capital Securities.
"Global Capital Security" means a Preferred Security, the ownership and
transfers of which shall be made through book entries by a Depositary as
described in Section 5.4.
"Guarantee Agreement" means the Guarantee Agreement executed and delivered
by the Depositor and Wilmington Trust Company, as guarantee trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Capital Securities, as amended from time to
time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
are registered in the Securities Register; any such Person shall be deemed to be
a beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of February
5, 1997, between the Depositor and the Debenture Trustee, as trustee, as amended
or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Issuer Trust" means the Delaware business trust known as "BT Capital Trust
B", which was created on February 28, 1997, by the Original Trust Agreement and
by the execution and filing by the Delaware Trustee with the Secretary of State
of the State of Delaware of the
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Certificate of Trust on February 28, 1997 pursuant to the Delaware Business
Trust Act, and which is continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Issuer Trust, Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debentures are
distributed, and (c) with respect to any distribution of Additional
Distributions to Holders of Trust Securities, Debentures having a principal
amount equal to the Liquidation Amount of the Trust Securities in respect of
which such distribution is made.
"Liquidation Amount" means the stated amount of $1,000 per Trust Security.
"Liquidation Date" means the date of the dissolution, winding-up or
termination of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Capital Securities" means, except as
provided by the Trust Indenture Act, Capital Securities representing more than
50% of the aggregate Liquidation Amount of all then Outstanding Capital
Securities.
"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 Depositor, and delivered to the Issuer Trustees. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that such
officer has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
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(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent; provided that, if such Trust Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu of
which other Capital Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor, any Issuer Trustee or any Affiliate of the
Depositor or any Issuer Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Issuer Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Capital Securities that such Issuer Trustee
knows to be so owned shall be so disregarded, and (b) the foregoing clause (a)
shall not apply at any time when all of the Outstanding Capital Securities are
owned by the Depositor, one or more of the Issuer Trustees and/or any such
Affiliate. Capital Securities so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Capital Securities and that the pledgee is not the Depositor or any Affiliate of
the Depositor.
"Owner" means each Person who is the beneficial owner of Global Capital
Securities.
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"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Holders in which all amounts paid in respect of the
Debentures will be held and from which the Property Trustee, through a Paying
Agent, shall make payments to the Holders in accordance with Sections 4.1 and
4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Plan" means an employee benefit or other plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of
the Code.
"Plan Asset Entity" means any Person whose underlying assets include "plan
assets" by reason of any Plan's investment in such Person.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Property Trustee
of the trust heretofore formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.
"PTCE" means a U.S. Department of Labor Prohibited Transaction Exemption.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures.
"Registration Rights Agreement" means the Exchange and Registration Rights
Agreement, dated as of January 16, 1997, among the Depositor, the Issuer Trust
and Lehman Brothers Inc.
"Relevant Trustee" has the meaning specified in Section 8.10.
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"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Series A Distribution Date" means a Distribution Date, as defined in the
Series A Trust Agreement.
"Series A Trust Agreement" means the Amended and Restated Trust Agreement
relating to BT Capital Trust A, dated as of January 16, 1997, among Bankers
Trust New York Corporation, as Depositor, Wilmington Trust Company, as Property
Trustee and Delaware Trustee, the Administrative Trustees named therein, and the
Holders of the Trust Securities (as defined therein) from time to time.
"Successor Capital Securities" of any particular Capital Securities
Certificate means every Capital Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer Trust
as that evidenced by, such particular Capital Securities Certificate; and, for
the purposes of this definition, any Capital Securities Certificate executed and
delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Capital Securities Certificate.
"Time of Delivery" means the time at which the Common Securities
Certificates and Capital Securities Certificates are issued and delivered to the
Depositor as provided in Section 2.4.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all Exhibits, and (ii) for all purposes of this
Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"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 if
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.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account, and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
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"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the Capital
Securities.
"Vice President" when used with respect to the Corporation, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
ARTICLE II
Continuation of the Issuer Trust
Section 2.1. Name.
The trust continued hereby shall be known as "BT Capital Trust B", as such
name may be modified from time to time by the Administrative Trustees following
written notice to the Holders of Trust Securities and the other Issuer Trustees,
in which name the Issuer Trustees may conduct the business of the Issuer Trust,
make and execute contracts and other instruments on behalf of the Issuer Trust
and sue and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Holders, the
Depositor, the Property Trustee and the Administrative Trustees. The principal
executive office of the Issuer Trust is c/o Bankers Trust New York Corporation,
130 Liberty Street, New York, New York 10006, Attention: Office of the
Secretary.
Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Issuer Trust as they arise or shall, upon request of any Issuer
Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by
such Issuer Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
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Section 2.4. Issuance of the Trust Securities in Exchange for Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrative Trustee, on behalf of the Issuer Trust, shall execute in
accordance with Sections 5.2 and 5.3, and the Property Trustee shall deliver to
the Depositor, (x) Common Securities Certificates, registered in the name of the
Depositor, evidencing an aggregate of 7,732 Common Securities having an
aggregate Liquidation Amount of $7,732,000 and (y) Capital Securities
Certificates, registered in the name of the Depositor, evidencing an aggregate
of 250,000 Capital Securities having an aggregate Liquidation Amount of
$250,000,000, against receipt of Debentures, registered in the name of the
Property Trustee on behalf of the Issuer Trust, having an aggregate principal
amount equal to $257,732,000.
Section 2.5. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in only those activities necessary or incidental
thereto. The Depositor hereby appoints the Issuer Trustees as trustees of the
Issuer Trust, to have all the rights, powers and duties to the extent set forth
herein, and the respective Issuer Trustees hereby accept such appointment. The
Property Trustee hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the benefit of the
Issuer Trust and the Holders. The Administrative Trustees shall have all rights,
powers and duties set forth herein and in accordance with applicable law with
respect to accomplishing the purposes of the Issuer Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the trustees of the Issuer Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust Act and for
taking such actions as are required to be taken by a Delaware trustee under the
Delaware Business Trust Act.
Section 2.6. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section 2.6, and in accordance with the
following provisions (i) and (ii), the Issuer Trustees shall have the authority
to enter into all transactions and agreements determined by the Issuer Trustees
to be appropriate in exercising the authority, express or implied, otherwise
granted to the Issuer Trustees under this Trust Agreement, and to perform all
acts in furtherance thereof, including the following:
(i) Each Administrative Trustee shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following matters:
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(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to execute,
deliver and perform on behalf of the Issuer Trust, the Expense
Agreement and the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in connection with the
purposes and function of the Issuer Trust;
(C) assisting in the registration of the Capital Securities under
the Securities Act and under applicable state securities or blue sky
laws and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(D) assisting in obtaining the listing of the Capital Securities
upon such securities exchange or exchanges, if any, as shall be
determined by the Depositor, with the registration of the Capital
Securities under the Exchange Act and with the preparation and filing
of all periodic and other reports and other documents pursuant to the
foregoing;
(E) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the
Debentures to the Holders in accordance with this Trust Agreement;
(F) the consent to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with this
Trust Agreement (which consent shall not be unreasonably withheld);
(G) execution of the Trust Securities on behalf of the Issuer
Trust in accordance with this Trust Agreement;
(H) execution and delivery of closing certificates, if any,
pursuant to the Registration Rights Agreement and application for a
taxpayer identification number for the Issuer Trust;
(I) unless otherwise determined by the Property Trustee or
Holders of at least a Majority in Liquidation Amount of the Capital
Securities or as otherwise required by the Delaware Business Trust Act
or the Trust Indenture Act, to execute on behalf of the Issuer Trust
(either acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have the
power to execute pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the foregoing as the
Issuer Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement.
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(ii) The Property Trustee shall have the power, duty and authority to
act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures and the holding of such amounts in
the Payment Account;
(D) the distribution through any Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the Holders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Issuer Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee) the taking of
any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect
to the terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder); and
(J) any of the duties, liabilities, powers or the authority of
the Administrative Trustees set forth in Section 2.6(a)(i)(D), (E) and
(I).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or
the Issuer Trustees acting on behalf of the Issuer Trust) shall not undertake
any business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Issuer
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Trustees shall not (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein,
(iii) take any action that would reasonably be expected to cause the Issuer
Trust to become taxable as a corporation or classified as other than a grantor
trust for United States Federal income tax purposes, (iv) incur any indebtedness
for borrowed money or issue any other debt, or (v) take or consent to any action
that would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the
Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the Commission
and the execution on behalf of the Issuer Trust of a registration statement
on the appropriate form in relation to the Capital Securities, including
any amendments thereto and the taking of any action necessary or desirable
to sell the Capital Securities in a transaction or a series of transactions
pursuant thereto;
(ii) the determination of the States or other jurisdictions, if any,
in which to take appropriate action to qualify or register for sale all or
part of the Capital Securities and the determination of any and all such
acts, other than actions that must be taken by or on behalf of the Issuer
Trust, and the advice to the Issuer Trustees of actions they must take on
behalf of the Issuer Trust, and the preparation for execution and filing of
any documents to be executed and filed by the Issuer Trust or on behalf of
the Issuer Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such States in connection with the
sale of the Capital Securities;
(iii) if so determined by the Depositor, the preparation for filing by
the Issuer Trust and execution on behalf of the Issuer Trust of an
application to the New York Stock Exchange or any other national stock
exchange or the NASDAQ National Market for listing upon notice of issuance
of any Capital Securities;
(iv) if so determined by the Depositor, the preparation for filing by
the Issuer Trust with the Commission and the execution on behalf of the
Issuer Trust of a registration statement on Form 8-A relating to the
registration of the Capital Securities under Section 12(b) or 12(g) of the
Exchange Act, including any amendments thereto; and
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(v) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Issuer Trustees
are authorized and directed to conduct the affairs of the Issuer Trust and to
operate the Issuer Trust so that the Issuer Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act,
and will not be taxable as a corporation or classified as other than a grantor
trust for United States Federal income tax purposes and so that the Debentures
will be treated as indebtedness of the Depositor for United States Federal
income tax purposes. In this connection, the Administrative Trustees, the
Property Trustee and the Holder of all the Common Securities are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that any such Administrative Trustee, the Property
Trustee or the Holder of all the Common Securities determines in its discretion
to be necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the
Outstanding Capital Securities. In no event shall the Issuer Trustees be liable
to the Issuer Trust or the Holders for any failure to comply with this section
that results from a change in law or regulation or in the interpretation
thereof.
Section 2.7. Assets of Trust.
The assets of the Issuer Trust shall consist of the Trust Property.
Section 2.8. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
ARTICLE III
Payment Account
Section 3.1. Payment Account.
(a) At or prior to the Time of Delivery, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for
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distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
Section 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including any Additional Distributions) will
be made on the Trust Securities at the rate and on the dates that payments of
interest (including any Additional Interest (as defined in the Indenture)) are
made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall accumulate
from the last Series A Distribution Date to which Distributions in respect
of the Series A Trust Securities have been paid or duly provided for or, if
no Series A Distribution Date shall have occurred at or prior to the Time
of Delivery, from January 16, 1997, and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Debentures pursuant to the Indenture, shall be payable
semi-annually in arrears on January 15 and July 15 of each year, commencing
on the first such date after the date of this Trust Agreement. If any date
on which a Distribution is otherwise payable on the Trust Securities is not
a Business Day, then the payment of such Distribution shall be made on the
next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), with the same force and effect
as if made on the date on which such payment was originally payable (each
date on which distributions are payable in accordance with this Section
4.1(a), a "Distribution Date").
(ii) Distributions shall accumulate in respect of the Trust Securities
at a rate of 7.90% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any period less than a
full Distribution period shall be computed on the basis of a 360-day year
of twelve 30-day months and the actual number of days elapsed in a partial
month in a period. Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by two. The amount of
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Distributions payable for any period shall include any Additional
Distributions in respect of such period.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Issuer Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the fifteenth day
(whether or not a Business Day) next preceding the relevant Distribution Date.
Section 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Issuer Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee 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 Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to (and as defined in)
the Indenture together with a statement that it is an estimate and that the
actual Redemption Price will be calculated on the third Business Day prior
to the Redemption Date (and, if an estimate is provided, that a further
notice shall be sent of the actual Redemption Price on the date on which
such Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Capital Securities
affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
Distributions thereon will
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cease to accumulate on and after said date, except as provided in Section
4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall indicate the
"CUSIP" numbers of the Trust Securities in notices of redemption and related
materials as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and
related materials.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that the
Issuer Trust has funds then on hand and available in the Payment Account for the
payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Capital Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, with respect to
Global Capital Securities, irrevocably deposit with the Depositary for such
Global Capital Securities, to the extent available therefor, funds sufficient to
pay the applicable Redemption Price and will give such Depositary irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Capital Securities. With respect to Capital Securities that are not Global
Capital Securities, the Property Trustee, subject to Section 4.2(c), will
irrevocably deposit with the Paying Agent or Paying Agents, to the extent
available therefor, funds sufficient to pay the applicable Redemption Price and
will give the Paying Agent or Paying Agents irrevocable instructions and
authority to pay the Redemption Price to the Holders of the Capital Securities
upon surrender of their Capital Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register on the relevant
record dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of such
deposit, all rights of Holders holding Trust Securities so called for redemption
will cease, except the right of such Holders to receive the Redemption Price and
any Distribution payable in respect of the Trust Securities on or prior to the
Redemption Date, but without interest, and such Securities will cease to be
Outstanding. In the event that any date on which any Redemption Price is payable
is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (without any
interest or other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made
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on such date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused and
not paid either by the Issuer Trust or by the Depositor pursuant to the
Guarantee Agreement, Distributions on such Trust Securities will continue to
accumulate, as set forth in Section 4.1, from the Redemption Date originally
established by the Issuer Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will be
the date fixed for redemption for purposes of calculating the Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Capital Securities based upon the relative
Liquidation Amounts of such classes. The particular Capital Securities to be
redeemed shall be selected on a pro rata basis based upon their respective
Liquidation Amounts not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Capital Securities not previously called
for redemption, provided that after giving effect to such redemption, no Holder
shall hold Capital Securities with an aggregate Liquidation Amount of less than
$100,000. The Property Trustee shall promptly notify the Securities Registrar in
writing of the Capital Securities selected for redemption and, in the case of
any Capital Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of Capital
Securities shall relate, in the case of any Capital Securities redeemed or to be
redeemed only in part, to the portion of the aggregate Liquidation Amount of
Capital Securities that has been or is to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Distributions) on,
the Redemption Price of, and the Liquidation Distribution in respect of the
Trust Securities, as applicable, shall be made, subject to Section 4.2(e), pro
rata among the Common Securities and the Capital Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of Default
resulting from a Debenture Event of Default specified in Section 5.1(1) or
5.1(2) of the Indenture shall have occurred and be continuing, no payment of any
Distribution (including any Additional Distributions) on, Redemption Price of,
or Liquidation Distribution in respect of any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including any Additional Distributions) on all Outstanding
Capital Securities for all Distribution periods terminating on or prior thereto,
or in the case of payment of the Redemption Price the full amount of such
Redemption Price on all Outstanding Capital Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Capital Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall
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first be applied to the payment in full in cash of all Distributions (including
any Additional Distributions) on, or the Redemption Price of, the Capital
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of all the Common Securities shall
have no right to act with respect to any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with respect to the
Capital Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not on behalf of the Holder of all the Common Securities, and only the Holders
of the Capital Securities will have the right to direct the Property Trustee to
act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including any Additional Distributions) or of
the Redemption Price, Liquidation Amount or any other amounts in respect of the
Capital Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Capital Securities are held by a Depositary, such Distributions shall be
made to the Depositary in immediately available funds. Payments in respect of
the Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Holder of all the Common Securities.
Section 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Issuer Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
Section 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Issuer Trust by the United
States or any other taxing authority.
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Section 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital Securities shall be
reduced by the amount of any corresponding payment such Holder has directly
received pursuant to Section 5.8 of the Indenture or Section 5.12 of this Trust
Agreement.
Section 4.8 Liability of the Holder of Common Securities.
Any Holder of the Common Securities shall be liable for the debts and
obligations of the Issuer Trust in the manner and to the extent set forth with
respect to the Common Securityholder (as defined in the Expense Agreement) and
each such Holder shall be subject to all liabilities to which the Common
Securityholder may be subject, and shall make all payments that the Common
Securityholder is required to make, under the terms of the Expense Agreement.
ARTICLE V
Trust Securities Certificates
Section 5.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the
Depositor referred to in Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are Outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
Section 5.2. The Trust Securities Certificates.
(a) The Capital Securities Certificates shall be issued in fully registered
form in minimum denominations of $100,000 Liquidation Amount (and in blocks of
at least 100 Capital Securities) and integral multiples of $1,000 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $1,000 Liquidation Amount and integral multiples thereof. The Trust
Securities Certificates shall be executed on behalf of the Issuer Trust by
manual signature of at least one Administrative Trustee. Trust Securities
Certificates bearing the manual signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Issuer Trust, shall be validly issued and entitled to the benefits of this
Trust Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates shall be
issued in the form of one or more Global Capital Securities Certificates
registered in the name of DTC, as Depositary, or its nominee and deposited with
DTC or a custodian for DTC for credit by DTC to the respective accounts of the
Owners thereof (or such other accounts as they may direct).
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
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Section 5.3. Execution and Delivery of Trust Securities Certificates.
At the Time of Delivery, an Administrative Trustee shall cause Common
Securities Certificates and Capital Securities Certificates, in the aggregate
Liquidation Amounts provided in Section 2.4, to be executed on behalf of the
Issuer Trust and delivered to or upon the written order of the Depositor,
executed by an authorized officer thereof, without further corporate action by
the Depositor, in authorized denominations.
Section 5.4. Global Capital Securities.
(a) Each Global Capital Securities Certificate issued under this Trust
Agreement shall be registered in the name of the Depositary or a nominee thereof
and delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Capital Securities Certificate shall constitute a single
Capital Securities Certificate for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no Global
Capital Securities Certificate may be exchanged in whole or in part for Capital
Securities Certificates registered, and no transfer of a Global Capital
Securities Certificate in whole or in part may be registered, in the name of any
Person other than the Depositary or a nominee thereof unless (i) the Depositary
advises the Property Trustee in writing that the Depositary is no longer willing
or able to properly discharge its responsibilities with respect to the Global
Capital Securities Certificates, and the Property Trustee is unable to locate a
qualified successor, (ii) the Issuer Trust at its option advises the Depositary
in writing that it elects to terminate the book-entry system through the
Depositary, or (iii) a Debenture Event of Default has occurred and is
continuing. Upon the occurrence of any event specified in clause (i), (ii) or
(iii) above, the Property Trustee shall notify and instruct the Depositary to
notify all Owners of Global Capital Securities, the Delaware Trustee and the
Administrative Trustees of the occurrence of such event and of the availability
of the Definitive Capital Securities Certificates to Owners of the Capital
Securities requesting the same; provided, however, that no Definitive Capital
Securities Certificate shall be issued in an amount representing fewer than 100
Capital Securities.
(c) Subject to Section 5.4(b) above, any exchange of a Global Capital
Securities Certificate for other Capital Securities Certificates may be made in
whole or in part, and all Capital Securities Certificates issued in exchange for
a Global Capital Securities Certificate or any portion thereof shall be
registered in such names as the Depositary shall direct.
(d) Every Capital Securities Certificate executed and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Capital
Securities Certificate or any portion thereof, whether pursuant to this Article
V or Section 4.2 or otherwise, shall be executed and delivered in the form of,
and shall be, a Global Capital Securities Certificate, unless such Capital
Securities Certificate is registered in the name of a Person other than the
Depositary or a nominee thereof.
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(e) As provided in Section 5.7, the Depositary or its nominee, as
registered owner of a Global Capital Securities Certificate, shall be the Holder
of such Global Capital Securities Certificate for all purposes under this Trust
Agreement and the Capital Securities. The Securities Registrar, the Issuer
Trustees, the Issuer Trust and the Depositor shall be entitled to deal with the
Depositary for all purposes of this Trust Agreement (including the payment of
the Liquidation Amount of and Distributions on the Capital Securities and the
giving and receiving of notices relating to the Capital Securities) as the sole
Holder of the Preferred Securities and shall have no obligations to the Owners
thereof. None of the Depositor, the Issuer Trust, the Issuer Trustees nor the
Securities Registrar shall have any liability in respect of any transfers
effected by the Depositary.
Section 5.5. Registration, Transfer and Exchange of Capital Securities.
(a) The Property Trustee shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.9, a register or registers (the
"Securities Register") in which the registrar and transfer agent with respect to
the Trust Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Capital
Securities Certificates and (subject to Section 5.11) Common Securities
Certificates and of transfers and exchanges of Capital Securities Certificates
as herein provided. The Property Trustee is hereby appointed Securities
Registrar for the purpose of registering Capital Securities Certificates and
(subject to Section 5.11) Common Securities and transfers and exchanges thereof
as provided herein.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrative Trustees or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall deliver, in the name of the
designated transferee or transferees, one or more new Capital Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
as may be required by this Trust Agreement, dated the date of execution by such
Administrative Trustee or Trustees; provided that no Holder may transfer any
Capital Security if giving effect to such transfer would cause any Holder to
hold less than $100,000 aggregate Liquidation Amount of Capital Securities. Any
purported transfer prohibited by the preceding proviso shall be null and void
and of no force or effect and the purported transferee of the affected Capital
Securities shall be deemed to have no interest whatsoever in such Capital
Securities.
At the option of the Holder, Capital Securities Certificates may be
exchanged for other Capital Securities Certificates of the same series of any
authorized denominations, of like tenor and aggregate Liquidation Amount,
bearing a number not contemporaneously Outstanding, upon surrender of the
Capital Securities Certificates to be exchanged at such office or agency.
Whenever any Capital Securities Certificates are so surrendered for exchange,
the Administrators or any one of them shall execute and deliver to the Property
Trustee, and the Property Trustee shall deliver, the Capital Securities
Certificates that the Holder making the exchange is entitled to receive.
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All Capital Securities issued upon any transfer or exchange of Capital
Securities shall evidence the same interest in the assets of the Issuer Trust,
and entitled to the same benefits under this Trust Agreement, as the Capital
Securities surrendered upon such transfer or exchange.
Neither the Depositor, the Property Trustee nor the Securities Registrar
shall be required, (i) to issue, register the transfer of or exchange any
Capital Security during a period beginning at the opening of business 15 days
before the day of selection for redemption of such Capital Securities pursuant
to Article IV and ending at the close of business on the day of mailing of the
notice of redemption, or (ii) to register the transfer of or exchange any
Capital Security so selected for redemption in whole or in part, except, in the
case of any such Capital Security to be redeemed in part, any portion thereof
not to be redeemed.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to an Administrative
Trustee and the Securities Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Capital Securities
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Property Trustee in accordance
with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Issuer Trust may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Capital Securities
Certificates.
(b) Notwithstanding any other provision of this Trust Agreement, Capital
Securities may be transferred or exchanged only in blocks having a Liquidation
Amount of not less than $100,000, and only if, following such transfer or
exchange, each Holder would hold Capital Securities with an aggregate
Liquidation Amount of not less than $100,000. Any transfer, exchange or other
disposition of Capital Securities in contravention of this Section 5.5(b)(v)
shall be deemed to be void and of no legal effect whatsoever, any such
transferee shall be deemed not to be the Holder or Owner of such Capital
Security for any purpose, including but not limited to the receipt of
Distributions on such Capital Securities, and such transferee shall be deemed to
have no interest whatsoever in such Capital Securities.
(c) Any purchaser or Holder of any Capital Securities or any interest
therein will be deemed to have represented by its purchase and holding thereof
that it either (i) is not a Plan or a Plan Asset Entity and is not purchasing
such Capital Securities on behalf of or with "plan assets" of any Plan, or (ii)
is eligible for the exemptive relief available under PTCE 96-23, 95-60, 91-38,
90-1 or 84-14 with respect to such purchase or holding. The Securities Registrar
may, and if the Depositor shall so request, the Securities Registrar shall,
before registering for transfer or exchange any Capital Securities Certificates
as provided in Sections 5.2, 5.4 or 5.5 of this Trust Agreement, (A) require the
purchaser or Holder of such Capital Securities
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Certificates to confirm that it either (x) is not a Plan, a Plan Asset Entity or
a Person investing "plan assets" of any Plan or (y) is eligible for the
exemptive relief available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate, and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the Issuer Trust
shall execute and make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 5.6, the Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section 5.6 shall constitute conclusive
evidence of an undivided beneficial interest in the assets of the Issuer Trust
corresponding to that evidenced by the lost, stolen or destroyed Trust
Securities Certificate, as if originally issued, whether or not the lost, stolen
or destroyed Trust Securities Certificate shall be found at any time.
Section 5.7. Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
none of the Issuer Trustees and the Securities Registrar shall be bound by any
notice to the contrary.
Section 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Delaware Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 5.9. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or agency
or agencies where Capital Securities Certificates may be surrendered for
registration of transfer or exchange
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and where notices and demands to or upon the Issuer Trustees in respect of the
Trust Securities Certificates may be served. The Administrative Trustees
initially designate Bankers Trust New York Corporation, 130 Liberty Street, New
York, New York 10006, Attention: BT Capital Trust B, as its office and agency
for such purposes. The Administrative Trustees shall give prompt written notice
to the Depositor, the Property Trustee and to the Holders of any change in the
location of the Securities Register or any such office or agency.
Section 5.10. Appointment of Paying Agents.
The Paying Agent or Agents shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent in its sole
discretion. The Paying Agent shall initially be the Bank and any co-paying agent
chosen by the Property Trustee and acceptable to the Administrative Trustees and
the Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees and the
Property Trustee. If the Bank shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the Administrative
Trustees shall appoint a successor (which shall be a bank or trust company) that
is reasonably acceptable to the Depositor to act as Paying Agent. Such successor
Paying Agent or any additional Paying Agent shall execute and deliver to the
Issuer Trustees an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Issuer Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Holders in trust for the benefit of the Holders
entitled thereto until such sums shall be paid to such Holders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Trust Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.
Section 5.11. Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire, and thereafter shall
retain, beneficial and record ownership of the Common Securities. Neither the
Depositor nor any successor Holder of the Common Securities may transfer less
than all the Common Securities, and the Depositor or any such successor Holder
may transfer the Common Securities only (i) in connection with a consolidation
or merger of the Depositor into another corporation, or any conveyance, transfer
or lease by the Depositor of its properties and assets substantially as an
entirety to any Person, pursuant to Section 8.1 of the Indenture, or (ii) to the
Depositor or an Affiliate of the Depositor in compliance with applicable law
(including the Securities Act of
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1933, as amended, and applicable state securities and blue sky laws), and in
either case only upon an effective assignment and delegation by the Holder of
all the Common Securities to its transferee of all of its rights and obligations
under the Expense Agreement. To the fullest extent permitted by law, any
attempted transfer of the Common Securities other than as set forth in the next
preceding sentence shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT."
Section 5.12. Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.8, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Issuer Trust except as described below. The
Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust Securities shall have
no preemptive or similar rights and when issued and delivered to Holders against
payment of the purchase price therefor will be fully paid and nonassessable by
the Issuer Trust. The Holders of the Capital Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Capital Securities then
Outstanding shall have the right to make such declaration by a notice in writing
to the Property Trustee, the Depositor and the Debenture Trustee.
At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, by written notice to the Property Trustee, the Depositor and
the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest on all of the
Debentures,
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(B) any accrued Additional Interest on all of the Debentures,
(C) the principal of (and premium, if any, on) any Debentures
that have become due otherwise than by such declaration of
acceleration and interest and Additional Interest thereon at the rate
borne by the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other than
the non-payment of the principal of the Debentures that has become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Trust Securities, waive any
past default or Event of Default under the Indenture, except a default or Event
of Default in the payment of principal or interest (unless such default or Event
of Default has been cured and a sum sufficient to pay all matured installments
of interest and principal due otherwise than by acceleration has been deposited
with the Debenture Trustee) or a default or Event of Default in respect of a
covenant or provision that under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Debenture. No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Capital Securities, a record date shall be established for determining Holders
of Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day that is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice that has been
canceled pursuant to the proviso to the preceding sentence, in which event a new
record date shall be established pursuant to the provisions of this Section
5.12(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a
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Debenture Event of Default specified in Section 5.1(1) or 5.1(2) of the
Indenture, any Holder of Capital Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Section 5.8 of the
Indenture, for enforcement of payment to such Holder of any amounts payable in
respect of Debentures having an aggregate principal amount equal to the
aggregate Liquidation Amount of the Capital Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.12(b) and this Section 5.12(c), the
Holders of Capital Securities shall have no right to exercise directly any right
or remedy available to the holders of, or in respect of, the Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 5.12, the Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Trust Securities,
waive any past default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
ARTICLE VI
Acts of Holders; Meetings; Voting
Section 6.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Trust Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on behalf of
the Issuer Trust, the Property Trustee shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Debenture
Trustee, or execute any trust or power conferred on the Property Trustee with
respect to the Debentures, (ii) waive any past default that may be waived under
Section 5.13 of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable,
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities, provided, however, that where a
consent under the Indenture would require the consent of each Holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior
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written consent of each Holder of Capital Securities. The Property Trustee shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Capital Securities, except by a subsequent vote of the Holders of the
Capital Securities. The Property Trustee shall notify all Holders of the Capital
Securities of any notice of default received with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the Capital
Securities, prior to taking any of the foregoing actions, the Issuer Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced
in such matters to the effect that such action shall not cause the Issuer Trust
to be taxable as a corporation or classified as other than a grantor trust for
United States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Issuer Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Capital Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Issuer
Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Capital Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in Liquidation
Amount of the Capital Securities. Notwithstanding any other provision of this
Trust Agreement, no amendment to this Trust Agreement may be made if, as a
result of such amendment, it would cause the Issuer Trust to be taxable as a
corporation or classified as other than a grantor trust for United States
Federal income tax purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Holders of the Capital Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Capital Securities, at such
Holder's registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
Section 6.3. Meetings of Holders of the Capital Securities.
No annual meeting of Holders is required to be held. The Administrative
Trustees, however, shall call a meeting of the Holders of the Capital Securities
to vote on any matter upon the written request of the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of the Capital Securities to vote on
any matters as to which such Holders are entitled to vote.
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The Holders of at least a Majority in Liquidation Amount of the Capital
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Capital Securities representing at least
a majority of the aggregate Liquidation Amount of the Capital Securities held by
the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of the Capital Securities, unless this
Trust Agreement requires a greater number of affirmative votes.
Section 6.4. Voting Rights.
Holders shall be entitled to one vote for each $1,000 of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
Section 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Administrative Trustees, or with such other officer
or agent of the Issuer Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
of record shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
Section 6.6. Holder Action by Written Consent.
Any action that may be taken by Holders of Capital Securities at a meeting
may be taken without a meeting if Holders holding at least a majority of the
aggregate Liquidation Amount of the Capital Securities entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any other provision of this Trust Agreement) shall consent to the action in
writing. Any action that may be taken by the Holder of all the Common Securities
may be taken if such Holder shall consent to the action in writing.
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Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Holders or the payment of a
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
Section 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement 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 an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to an Administrative Trustee. 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 Trust Agreement and (subject to Section 8.1)
conclusive in favor of the Issuer Trustees, if made in the manner provided in
this Section 6.8.
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 the execution thereof. Where such execution is by
a signer acting in a capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer's
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 any Issuer Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust 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 Issuer Trustees,
the Depositor or the Issuer Trust in reliance thereon, whether or not notation
of such action is made upon such Trust Security.
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Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust 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 Liquidation Amount.
If any dispute shall arise among the Holders or the Issuer Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Holder or Issuer
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Issuer Trust shall be open to inspection by Holders
during normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
ARTICLE VII
Representations and Warranties
Section 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a banking corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a banking corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
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(e) this Trust Agreement has been duly authorized, executed and delivered
by the Property Trustee and the Delaware Trustee and constitutes the valid and
legally binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its 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;
(f) the execution, delivery and performance of this Trust Agreement has
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and does not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee, (ii) violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States or the
State of Delaware, as the case may be, governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing law of
the United States or the State of Delaware governing the banking, trust or
general powers of the Property Trustee or the Delaware Trustee, as the case may
be; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Issuer Trust or would question the right, power and authority of the Property
Trustee or the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Issuer Trustees under this Trust Agreement.
Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the Holders
that:
(a) the Trust Securities Certificates issued at the Time of Delivery on
behalf of the Issuer Trust have been duly authorized and will have been duly and
validly executed, issued and
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delivered by the Issuer Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement and the Holders will
be, as of such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under the
laws of the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by either Issuer Trustee of this
Trust Agreement.
ARTICLE VIII
The Issuer Trustees; Paying Agents
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, but subject to Section
8.1(c), no provision of this Trust Agreement shall require any of the Issuer
Trustees to expend or risk its or their own funds or otherwise incur any
financial liability in the performance of any of its or their duties hereunder,
or in the exercise of any of its or their rights or powers, if it or they 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 or
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Issuer Trustees shall be subject to the provisions
of this Section 8.1. Nothing in this Trust Agreement shall be construed to
release an Administrative Trustee from liability for such Administrative
Trustee's own gross negligent action, such Administrative Trustee's own gross
negligent failure to act, or such Administrative Trustee's own wilful
misconduct. To the extent that, at law or in equity, an Issuer Trustee has
duties and liabilities relating to the Issuer Trust or to the Holders, such
Issuer Trustee shall not be liable to the Issuer Trust or to any Holder for such
Issuer Trustee's good faith reliance on the provisions of this Trust Agreement.
The provisions of this Trust Agreement, to the extent that they restrict the
duties and liabilities of the Issuer Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Holders to replace such other duties
and liabilities of the Issuer Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as
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herein provided and that the Issuer Trustees are not personally liable to it for
any amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.1(b) does not limit
the liability of the Issuer Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture Act.
(c) If an Event of Default has occurred and is continuing, the Property
Trustee shall enforce this Trust Agreement for the benefit of the Holders.
(d) The Property Trustee, before the occurrence of any Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 5.12), the Property Trustee shall exercise such of the rights and powers
vested in it by this Trust Agreement, and use the same degree of care and skill
in its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(e) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee or the Delaware Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Trust Agreement
(including pursuant to Section 10.10), and the Property Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust Agreement
(including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust Agreement;
but in the case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Trust Agreement.
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(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of at least a Majority in Liquidation Amount
of the Capital Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Payment
Account shall be to deal with such Property in a similar manner as the
Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and
(vi) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of any other Issuer Trustee
or the Depositor.
(f) The Administrative Trustees shall not be responsible for monitoring the
compliance by the other Issuer Trustees or the Depositor with their respective
duties under this Trust Agreement, nor shall either Administrative Trustee be
liable for the default or misconduct of any other Administrative Trustee, the
other Issuer Trustees or the Depositor.
Section 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Holders, the Administrative Trustees and the Depositor unless
such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such
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exercise to the Holders and the Administrative Trustees, unless such exercise
shall have been revoked.
The Property Trustee shall not be deemed to have knowledge of any Event of
Default unless the Property Trustee shall have received written notice, or a
Responsible Officer charged with the administration of this Trust Agreement
shall have obtained actual knowledge, of such Event of Default.
Section 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, 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;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action, (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein, or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Holders of the Capital Securities are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting the Depositor's opinion as to the course of action to be taken and
the Property Trustee shall take such action, or refrain from taking such action,
as the Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that if the Property Trustee
does not receive such instructions of the Depositor within ten Business Days
after it has delivered such notice, or such reasonably shorter period of time
set forth in such notice (which to the extent practicable shall not be less than
two Business Days), it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Holders, in which event the Property
Trustee shall have no liability except for its own bad faith, negligence or
wilful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(d) any direction or act of an Administrative Trustee contemplated by this
Trust Agreement shall be sufficiently evidenced by a certificate executed by
such Administrative Trustee and setting forth such direction or act;
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(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction; provided that, nothing
contained in this Section 8.3(g) shall be taken to relieve the Property Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys, provided that the Property Trustee shall be responsible for its own
negligence, bad faith or wilful misconduct with respect to selection of any
agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
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(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Issuer Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to any Issuer Trustee shall be construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust, and the Issuer Trustees do
not assume any responsibility for their correctness. The Issuer Trustees shall
not be accountable for the use or application by the Depositor of the proceeds
of the Debentures.
Section 8.5. May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the Issuer
Trust, in its individual or any other capacity, may become the owner or pledgee
of Trust Securities and, subject to Sections 8.8 and 8.13 and, except as
provided in the definition of the term "Outstanding" in Article I, may otherwise
deal with the Issuer Trust with the same rights it would have if it were not an
Issuer Trustee or such other agent.
Section 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to each Issuer Trustee and Paying Agent from time to time such
reasonable compensation for all services rendered by them hereunder as may be
agreed by the Depositor and such Issuer Trustee or Paying Agent, as the case may
be, from time to time (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse each Issuer
Trustee and Paying Agent upon request for all reasonable expenses, disbursements
and advances incurred or made by each Issuer Trustee and Paying Agent in
accordance with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of their agents and counsel),
except any such expense, disbursement or advance as may be attributable to their
negligence, bad faith or wilful misconduct; and
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(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) each Paying Agent, (iii) any
Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any employee or
agent of the Issuer Trust (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Issuer Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Issuer Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this Trust
Agreement, except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified Person by
reason of negligence, bad faith or wilful misconduct with respect to such acts
or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement.
No Issuer Trustee or Paying Agent may claim any Lien on any Trust Property
as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Issuer Trustee and any Paying Agent may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall
have no rights by virtue of this Trust Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Issuer Trust, shall not be
deemed wrongful or improper. Neither the Depositor, any Paying Agent nor any
Issuer Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a character that,
if presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor, any Issuer Trustee or any Paying Agent shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity. Any Issuer
Trustee or Paying Agent may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is a
national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such, and that has at the time of such appointment 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
8.7 and to the extent permitted by the Trust Indenture Act, the combined capital
and surplus of such Person shall be
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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 Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section 8.7, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware, or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law and that shall
act through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property 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 Trust
Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as co-
trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 8.9. Any co-trustee or separate
trustee appointed pursuant to this Section 8.9 shall either be (i) a natural
person who is at least 21 years of age and a resident of the United States,
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or (ii) a legal entity with its principal place of business in the United States
that shall act through one or more persons authorized to bind such entity. If an
Event of Default under the Indenture shall have occurred and be continuing, the
Property Trustee alone shall have the power to make such appointment.
Should any written instrument from the Depositor be required by any co-
trustee or separate trustee so appointed for more fully confirming to such co-
trustee or separate trustee such property, title, right, or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The Trust Securities shall be executed by one or more Administrative
Trustees, and the Trust Securities shall be delivered by the Property Trustee,
and all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or required to
be deposited or pledged with, the Property Trustee specified hereunder shall be
exercised solely by the Property Trustee and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such co-
trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section
8.9, and, in case a Debenture Event of Default has occurred and is continuing,
the Property Trustee shall have power to accept the resignation of, or remove,
any such co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigning or
removed may be appointed in the manner provided in this Section 8.9.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
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(e) The Property Trustee shall not be liable by reason of any act of a co-
trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Issuer
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Issuer Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 60 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by Act of the Holder of all the
Common Securities. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a Majority in Liquidation
Amount of the Capital Securities, delivered to the Relevant Trustee (in its
individual capacity and, in the case of the Property Trustee, on behalf of the
Issuer Trust). An Administrative Trustee may be removed by the Holders of Common
Securities at any time.
If any Issuer Trustee shall resign, be removed or become incapable of
acting as Issuer Trustee, or if a vacancy shall occur in the office of any
Issuer Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Holder of all the Common Securities, by Act
delivered to the retiring Issuer Trustee, shall promptly appoint a successor
Issuer Trustee or Issuer Trustees, and such successor Issuer Trustee shall
comply with the applicable requirements of Section 8.11. If the Property Trustee
or the Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Property Trustee or the Delaware Trustee, as the case
may be, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Holders of Capital Securities, by Act of the Holders of a
Majority in Liquidation Amount of the Capital Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and such successor Issuer Trustee shall comply with the applicable
requirements of Section 8.11. If an Administrative Trustee shall resign, be
removed or become incapable of acting as Administrative Trustee, at a time when
a Debenture Event of Default shall have occurred and be continuing, the Holder
of all Common Securities by Act delivered to the Administrative Trustee shall
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promptly appoint a successor Administrative Trustee or Administrative Trustees
and such successor Administrative Trustee or Trustees shall comply with the
applicable requirements of Section 8.11. If no successor Relevant Trustee shall
have been so appointed by the Holder of all the Common Securities or the Holders
of a Majority in Liquidation Amount of the Capital Securities, as the case may
be, and accepted appointment in the manner required by Section 8.11, any Holder
who has been a Holder of Trust Securities for at least six months may, on behalf
of such Holder and all others similarly situated, or any other Issuer Trustee,
may petition any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each removal
of an Issuer Trustee and each appointment of a successor Issuer Trustee to all
Holders in the manner provided in Section 10.8 and shall give notice to the
Depositor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Depositor, incompetent or incapacitated, the vacancy created
by such death, incompetence or incapacity may be filled by (a) the unanimous act
of the remaining Administrative Trustees if there are at least two of them or
(b) otherwise by the Depositor (with the successor in either case being a Person
who satisfies the eligibility requirement for the Delaware Trustee set forth in
Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee with respect to
the Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Issuer Trust, and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Issuer Trust.
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Upon request of any Issuer Trustee or any such successor Relevant Trustee,
the retiring Relevant Trustee or the Issuer Trust, as the case may be, shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person, succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person 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.
Section 8.13. Preferential Collection of Claims Against Depositor or Issuer
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Capital
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
Section 8.14. Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
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(b) 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 Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 8.15. Reports by Property Trustee.
(a) Not later than January 31 of each year commencing with January 31,
1998, the Property Trustee shall transmit to all Holders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of the immediately
preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Time of
Delivery) ending with such December 31 or, if the Property Trustee has not
complied in any material respect with such obligations, a description of
such noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects the
Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders such reports
concerning the Property Trustee and its actions under this Trust Agreement as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each national stock exchange, the
Nasdaq National Market or such
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other interdealer quotation system or self-regulatory organization upon which
the Trust Securities are listed or traded, with the Commission and with the
Depositor.
Section 8.16. Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees on behalf of the
Issuer Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act. The Depositor and the Administrative Trustees on behalf of the
Issuer Trust shall annually file with the Property Trustee a certificate
specifying whether such Person is in compliance with all of the terms and
covenants applicable to such Person hereunder.
Section 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Issuer Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be four, provided that the Property
Trustee and the Delaware Trustee may be the same Person.
(b) If an Issuer Trustee ceases to hold office for any reason, a vacancy
shall occur. The vacancy shall be filled with an Issuer Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of an Issuer Trustee shall not operate to
annul, dissolve or terminate the Issuer Trust.
Section 8.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 such
Administrative Trustee's power for the purpose of executing any documents
contemplated in Section 2.7(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
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(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Issuer Trust or the
names of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement.
Section 8.20. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be John P. Hardt and Manuel
J. Schnaidman, and their successors shall be appointed by the Holder of all the
Common Securities. The Administrative Trustees may resign or be removed by the
Holder of all the Common Securities at any time. Upon any resignation or removal
of an Administrative Trustee, the Depositor shall appoint a successor
Administrative Trustee. If at any time there is no Administrative Trustee, the
Property Trustee or any Holder who has been a Holder of Trust Securities for at
least six months may petition any court of competent jurisdiction for the
appointment of one or more Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with this Section 8.20, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Trust Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrative Trustee who is a natural person dies or
becomes, in the opinion of the Holder of all the Common Securities, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by the unanimous act of the remaining Administrative Trustees, if
there were at least two of them prior to such vacancy, and by the Depositor, if
there were not two such Administrative Trustees immediately prior to such
vacancy (with the successor being a Person who satisfies the eligibility
requirement for Administrative Trustees set forth in Section 8.7).
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ARTICLE IX
Termination, Liquidation and Merger
Section 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Issuer Trust shall automatically dissolve,
and its affairs be wound up, on January 15, 2028 (the "Expiration Date"),
following the distribution of the Trust Property in accordance with Section 9.4.
Section 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Holder of all the Common Securities;
(b) the written direction to the Property Trustee from the Holder of all
the Common Securities at any time to terminate the Issuer Trust and to
distribute the Debentures to Holders in exchange for the Capital Securities
(which direction is optional and wholly within the discretion of the Holder of
all the Common Securities);
(c) the redemption of all of the Capital Securities in connection with the
redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a court of
competent jurisdiction.
Section 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees and
the Issuer Trust created and continued hereby shall terminate upon the latest to
occur of the following: (a) the distribution by the Property Trustee to Holders
of all amounts required to be distributed hereunder upon the liquidation of the
Issuer Trust pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2; (b) the payment of any expenses owed by the
Issuer Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Issuer Trust or the Holders.
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Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Issuer Trustees as expeditiously as the Issuer Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder a
Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage prepaid
mailed not less than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All such notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debentures, or if
Section 9.4(d) applies receive a Liquidation Distribution, as the Property
Trustee or Administrative Trustees shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Issuer Trust and distribution of the Debentures to Holders,
the Property Trustee, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such Trust Securities
Certificates to the exchange agent for exchange, (iii) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a Like
Amount of Debentures bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on such Trust Securities Certificates
until such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures), and (iv) all
rights of Holders holding Trust Securities will cease, except the right of such
Holders to receive Debentures upon surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of
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the Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, or if an Early Termination Event specified in
clause (c) of Section 9.2 occurs, the Trust Property shall be liquidated, and
the Issuer Trust shall be dissolved, wound-up or terminated, by the Property
Trustee in such manner as the Property Trustee determines. In such event, on the
date of the dissolution, winding-up or other termination of the Issuer Trust,
Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, an amount equal to
the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Issuer Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Issuer Trust on the Trust Securities shall be paid on a pro rata basis
(based upon Liquidation Amounts). The Holder of all the Common Securities will
be entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Capital Securities, except that, if a Debenture Event of Default specified in
Section 5.1(1) or 5.1(2) of the Indenture has occurred and is continuing, the
Capital Securities shall have a priority over the Common Securities as provided
in Section 4.3.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Article IX. At the request of the Holder of all the Common Securities,
with the consent of the Administrative Trustees, but without the consent of the
Holders of the Outstanding Capital Securities, the Issuer Trust may merge with
or into, consolidate, amalgamate, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to a trust organized as
such under the laws of any State; provided, that (i) such successor entity
either (a) expressly assumes all of the obligations of the Issuer Trust with
respect to the Capital Securities, or (b) substitutes for the Capital Securities
other securities having substantially the same terms as the Capital Securities
(the "Successor Securities") so long as the Successor Securities have the same
priority as the Capital Securities with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) a trustee of such successor
entity possessing the same powers and duties as the Property Trustee is
appointed to hold the Debentures, (iii) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Capital Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization that then assigns a rating
to the Capital Securities, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Capital Securities (including
any Successor Securities) in any material respect, (v) such successor entity has
a purpose substantially identical to that of the Issuer Trust, (vi) prior to
such merger, consolidation, amalgamation, replacement,
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conveyance, transfer or lease, the Depositor has received an Opinion of Counsel
to the effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Capital Securities (including any Successor
Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Issuer Trust nor such successor entity will be required to register as an
"investment company" under the Investment Company Act, and (vii) the Depositor
or its permitted transferee owns all of the Common Securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee Agreement.
Notwithstanding the foregoing, the Issuer Trust shall not, except with the
consent of holders of all of the Capital Securities, consolidate, amalgamate,
merge with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Issuer Trust or the successor entity to be taxable as a
corporation or classified as other than a grantor trust for United States
Federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of any person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor entitle the legal representatives
or heirs of such person or any Holder for such person, to claim an accounting,
take any action or bring any proceeding in any court for a partition or winding
up of the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Issuer
Trustees and the Holder of all of the Common Securities, without the consent of
any Holder of the Capital Securities, (i) to cure any ambiguity, correct or
supplement any provision herein that may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement; provided, however, that such
action shall not adversely affect in any material respect the interests of any
Holder, or (ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the Issuer Trust
will not be taxable as a corporation or will be classified as a grantor trust
for United
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States Federal income tax purposes at all times that any Trust Securities are
Outstanding or to ensure that the Issuer Trust will not be required to register
as an "investment company" under the Investment Company Act.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Issuer Trustees and the Holder of all the
Common Securities and with (i) the consent of Holders of at least a Majority in
Liquidation Amount of the Capital Securities, and (ii) receipt by the Issuer
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Issuer Trustees in accordance with such
amendment will not cause the Issuer Trust to be taxable as a corporation or
classified as other than a grantor trust for United States Federal income tax
purposes or affect the Issuer Trust's exemption from status as an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date,
or (ii) restrict the right of a Holder to institute suit for the enforcement of
any such payment on or after such date; and notwithstanding any other provision
herein, without the unanimous consent of the Holders (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of
this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no Issuer
Trustee shall enter into or consent to any amendment to this Trust Agreement
that would cause the Issuer Trust to fail or cease to qualify for the exemption
from status as an "investment company" under the Investment Company Act or to be
taxable as a corporation or to be classified as other than a grantor trust for
United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative Trustees, this Trust
Agreement may not be amended in a manner that imposes any additional obligation
on the Depositor or the Administrative Trustees.
(f) If any amendment to this Trust Agreement is made, the Administrative
Trustees or the Property Trustee shall promptly provide to the Depositor a copy
of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement that affects its own rights,
duties or immunities under this Trust Agreement. The Property Trustee shall be
entitled to receive an Opinion of Counsel and an Officers' Certificate stating
that any amendment to this Trust Agreement is in compliance with this Trust
Agreement.
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Section 10.3. Separability.
If any provision in this Trust Agreement or in the Trust Securities
Certificates 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 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS,
THE ISSUER TRUST, THE DEPOSITOR AND THE ISSUER TRUSTEES WITH RESPECT TO THIS
TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS. THE PROVISIONS OF SECTION 3540 OF TITLE 12 OF THE
DELAWARE CODE SHALL NOT APPLY TO THIS TRUST.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no Distributions shall
accumulate on such unpaid amount for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Issuer Trust and any Issuer Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
(a) Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in
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the United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Holder of Capital Securities, to such Holder as
such Holder's name and address may appear on the Securities Register; and (b) in
the case of the Holder of all the Common Securities or the Depositor, to Bankers
Trust New York Corporation, 130 Liberty Street, New York, New York 10006,
Attention: Office of the Secretary, facsimile no.: (212) 250-2675, or to such
other address as may be specified in a written notice by the Holder of all the
Common Securities or the Depositor, as the case may be, to the Property Trustee.
Such notice, demand or other communication to or upon a Holder shall be deemed
to have been sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission. Such notice, demand or other communication to or upon
the Depositor shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Depositor.
(b) Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Issuer Trust or any Issuer Trustee may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of the
Property Trustee to Wilmington Trust Company, Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890, facsimile (302) 651-8882, Attention:
Corporate Trust Administration; (b) in the case of the Delaware Trustee, to
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, facsimile (302) 651-8882, Attention: Corporate Trust
Administration; (c) in the case of the Administrative Trustees, to them at the
address above for notices to the Depositor, marked "Attention: Administrative
Trustees of BT Capital Trust B"; and (d) in the case of the Issuer Trust, to its
principal executive office specified in Section 2.2, with a copy to each of the
Property Trustee, the Delaware Trustee and the Administrative Trustees, or, in
each such case, to such other address as may be specified in a written notice by
the applicable Person to the Property Trustee, the Depositor and the Holders.
Such notice, demand or other communication to or upon the Property Trustee, the
Delaware Trustee, the Administrative Trustees or the Issuer Trust shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Property Trustee, the Delaware Trustee, such Administrative
Trustees or the Issuer Trust, as the case may be.
Section 10.9. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of the
Holders that, until at least one year and one day after the Issuer Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. The Property Trustee and the Depositor agree, for the benefit of Holders,
that if the Depositor or any Issuer Trustee takes action in violation of this
Section 10.9, then at the expense of the Depositor, the Property Trustee or
Depositor, as the case may be, shall file an answer with the bankruptcy court or
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otherwise properly contest the filing of such petition by the Depositor against
the Issuer Trust or the commencement of such action and raise the defense that
the Depositor has agreed in writing not to take such action and should be
estopped and precluded therefrom and such other defenses, if any, as counsel for
the Issuer Trustee or the Issuer Trust may assert.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) If any provision hereof limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act through
operation of Section 318(c) thereof, such imposed duties shall control. If any
provision of this Trust Agreement modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Trust Agreement as so modified or excluded, as
the case may be.
(c) The Property Trustee shall be the only Issuer Trustee that is a trustee
for the purposes of the Trust Indenture Act.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee Agreement
and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS
OF THE GUARANTEE AGREEMENT AND THE INDENTURE AND SHALL CONSTITUTE THE AGREEMENT
OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
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Section 10.12. Counterparts.
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 Amended and
Restated Trust Agreement to be duly executed, and their respective corporate
seals to be hereunto affixed, all as of the day and year first above written.
Bankers Trust New York Corporation,
as Depositor
[SEAL]
By: _______________________________
Name:
Title:
Wilmington Trust Company,
as Property Trustee
[SEAL]
By: _______________________________
Name:
Title:
Wilmington Trust Company,
as Delaware Trustee
[SEAL]
By: _______________________________
Name:
Title:
By:________________________________
Name: John P. Hardt
as Administrative Trustee
By:________________________________
Name: Manuel J. Schnaidman
as Administrative Trustee
-60-
<PAGE>
State of New York )
) ss.:
County of New York )
On the .... day of ......................, 1997, before me personally
came ..........................., to me known, who, being by me duly sworn, did
depose and say that s/he is ............................ of Bankers Trust New
York Corporation, one of the corporations described in and which executed the
foregoing instrument; that s/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 s/he signed
her/his name thereto by like authority.
............................................
State of New York )
) ss.:
County of New York )
On the .... day of ......................, 1997, before me personally
came ..........................., to me known, who, being by me duly sworn, did
depose and say that s/he is ............................ of Wilmington Trust
Company, one of the corporations described in and which executed the foregoing
instrument; that s/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 s/he signed her/his name
thereto by like authority.
............................................
State of New York )
) ss.:
County of New York )
On the .... day of ......................, 1997, before me personally
came ..........................., to me known, who, being by me duly sworn, did
depose and say that s/he is ............................ of Wilmington Trust
Company, one of the corporations described in and which executed the foregoing
instrument; that s/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 s/he signed her/his name
thereto by like authority.
............................................
-61-
<PAGE>
State of New York )
) ss.:
County of New York )
On the .... day of ..................., 1997, before me personally
came ..........................., to me known to be the individual described in
and who executed the foregoing instrument, and acknowledged that said individual
executed the same.
............................................
State of New York )
) ss.:
County of New York )
On the .... day of ..................., 1997, before me personally
came ..........................., to me known to be the individual described in
and who executed the foregoing instrument, and acknowledged that said individual
executed the same.
............................................
-62-
<PAGE>
Exhibit A
---------
[CERTIFICATE OF TRUST]
[Insert Form Filed with Delaware
Secretary of State]
<PAGE>
Exhibit B
---------
[CERTIFICATE DEPOSITORY AGREEMENT]
[Insert Current Form Required by Depositary]
<PAGE>
Exhibit C
---------
[Form of Common Securities Certificate]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF
THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT.
<TABLE>
<CAPTION>
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
<S> <C>
C-__ 7,732
</TABLE>
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
BT CAPITAL TRUST B
7.90% COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
BT Capital Trust B, a statutory business trust created under the laws of
the State of Delaware (the "Issuer Trust"), hereby certifies that [NAME OF
HOLDER] (the "Holder") is the registered owner of SEVEN THOUSAND SEVEN HUNDRED
AND THIRTY-TWO (7,732) common securities of the Issuer Trust representing common
undivided beneficial interests in the assets of the Issuer Trust and designated
the 7.90% Common Securities (liquidation amount $1,000 per Common Security) (the
"Common Securities"). Except in accordance with Section 5.11 of the Trust
Agreement (as defined below) the Common Securities are not transferable and any
attempted transfer hereof other than in accordance therewith shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of ________ __, 1997, as the same may be amended
from time to time (the "Trust Agreement"), among Bankers Trust New York
Corporation, a New York corporation, as Depositor, Wilmington Trust Company, as
Delaware Trustee and as Property Trustee, the Administrative Trustees named
therein and the Holders of Trust Securities, including the designation of the
terms of the Common Securities as set forth therein. The Property Trustee will
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Issuer Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
<PAGE>
This Common Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
In Witness Whereof, one of the Administrative Trustees of the Issuer Trust
has executed this Common Securities Certificate this _____ day of __________,
____.
BT Capital Trust B
By: _________________________________________
Name:
Administrative Trustee
C-2
<PAGE>
Exhibit D
---------
[Form of Expense Agreement]
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of _______ __, 1997 (as
modified, amended or supplemented, this "Agreement"), between Bankers Trust New
York Corporation, a New York corporation, in its capacity as Holder (as defined
in the Trust Agreement referred to below) of the Common Securities referred to
below (in such capacity, together with its successors in such capacity, the
"Common Securityholder"), and BT Capital Trust B, a Delaware business trust (the
"Issuer Trust").
Whereas, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire the Debentures from Bankers Trust New York
Corporation, a New York corporation, and to issue and sell 7.90% Capital
Securities, Series B1 (the "Capital Securities") with such powers, preferences
and special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Issuer Trust, dated as of _______ __, 1997, among Bankers
Trust New York Corporation, as Depositor, Wilmington Trust Company, as Delaware
Trustee and as Property Trustee, the Administrative Trustees named therein and
the Holders of Trust Securities, as the same may be amended from time to time
(the "Trust Agreement"); and
Whereas, the Common Securityholder will own all of the Common Securities of
the Issuer Trust; and
Whereas, capitalized terms used but not defined herein have the meanings
set forth in the Trust Agreement;
Now, Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Common Securityholder and the
Issuer Trust hereby agree as follows:
ARTICLE I
Section 1.1. Guarantee by Common Securityholder. Subject to the terms and
conditions hereof, the Common Securityholder hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Issuer Trust is
now or hereafter becomes indebted or liable (the "Beneficiaries") the full
payment, when and as due, of any and all Obligations (as hereinafter defined) to
such Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Issuer Trust, other than obligations of the Issuer Trust to
pay to holders of any Trust Securities the amounts due such holders pursuant to
the terms of the Trust Securities. This Agreement is intended to be for the
benefit of, and to be enforceable by,
<PAGE>
all such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Common Securityholder under this Agreement
shall constitute unsecured obligations of the Common Securityholder and shall
rank subordinate and junior in right of payment to all Senior Indebtedness (as
defined in the Indenture) of the Common Securityholder to the extent and in the
manner set forth in the Indenture with respect to the Debentures, and the
provisions of Article XIII of the Indenture will apply, mutatis mutandis, to the
obligations of the Common Securityholder hereunder. The obligations of the
Common Securityholder hereunder do not constitute Senior Indebtedness (as
defined in the Indenture) of the Common Securityholder.
Section 1.3. Term of Agreement. This Agreement shall terminate and be of no
further force and effect upon the dissolution of the Issuer Trust; provided,
however, that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of Capital Securities
or any Beneficiary must restore payment of any sums paid under the Capital
Securities, under any Obligation, under the Guarantee Agreement dated the date
hereof by Bankers Trust New York Corporation, as guarantor, and Wilmington Trust
Company, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.4. Waiver of Notice. The Common Securityholder hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and the Common Securityholder hereby waives presentment, demand
for payment, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Common Securityholder under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Issuer Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
D-2
<PAGE>
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Issuer Trust in accordance
with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Common Securityholder with respect to the happening of any
of the foregoing.
Section 1.6. Enforcement. A Beneficiary may enforce this Agreement directly
against the Common Securityholder and the Common Securityholder waives any right
or remedy to require that any action be brought against the Issuer Trust or any
other person or entity before proceeding against the Common Securityholder.
Section 1.7. Subrogation. The Common Securityholder shall be subrogated to
all rights (if any) of any Beneficiary against the Issuer Trust in respect of
any amounts paid to the Beneficiaries by the Common Securityholder under this
Agreement; provided, however, that the Common Securityholder shall not (except
to the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II
Section 2.1. Assignment. This Agreement may not be assigned by either party
hereto without the consent of the other, and any purported assignment without
such consent shall be void, except that, upon any transfer of the Common
Securities, this Agreement shall be assigned and delegated by the Common
Securityholder to any Person to whom it transfers the Common Securities,
simultaneously with the effectiveness of such transfer and without any action by
either party hereto.
D-3
<PAGE>
Section 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Common Securityholder and shall inure to the benefit of
the Beneficiaries.
Section 2.3. Amendment. So long as there remains any Beneficiary or any
Capital Securities are Outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the Holders of the
Capital Securities without the consent of such Beneficiary or the Holders of the
Capital Securities, as the case may be.
Section 2.4. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so given,
shall be deemed given when mailed or upon receipt of an answer-back, if sent by
telex):
BT Capital Trust B
c/o Bankers Trust New York Corporation
130 Liberty Street
New York, New York 10006
Facsimile No.: (212) 250-2675
Attention: Office of the Secretary
With a copy to:
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Administration
Bankers Trust New York Corporation
130 Liberty Street
New York, New York 10006
Facsimile No.: (212) 250-2675
Attention: Office of the Secretary
Section 2.4. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
D-4
<PAGE>
In Witness Whereof, the parties hereto have caused this Agreement as to
Expenses and Liabilities to be duly executed as of the day and year first above
written.
Bankers Trust New York Corporation
By:
-------------------------------------
-------------------------------------
Name:
Title:
BT Capital Trust B
By:
-------------------------------------
-------------------------------------
Name:
Administrative Trustee
D-5
<PAGE>
Exhibit E
---------
[Form of Capital Securities Certificate]
[If the Capital Securities Certificate is to be a Global Capital Securities
Certificate, insert--This Capital Securities Certificate is a Global Capital
Securities Certificate within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Capital Securities Certificate is exchangeable for Capital
Securities Certificates registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described in the
Trust Agreement and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Capital Security Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to BT Capital Trust B or its agent for registration of transfer, exchange or
payment, and any Capital Security Certificate issued is registered in the name
of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]
CERTIFICATE NUMBER NUMBER OF CAPITAL SECURITIES
P-__ _______
CUSIP NO.
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
BT CAPITAL TRUST B
7.90% CAPITAL SECURITIES, SERIES B1
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
BT Capital Trust B, a statutory business trust created under the laws of
the State of Delaware (the "Issuer Trust"), hereby certifies that _____________
_____________________________ (the "Holder") is the registered owner of _______
_________________ (____) capital securities of the Issuer Trust representing a
preferred undivided beneficial interest in the assets of the Issuer Trust and
<PAGE>
designated the 7.90% Capital Securities, Series B1 (liquidation amount $1,000
per Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Issuer Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer as provided in Section 5.5 of the Trust Agreement
(as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities are set
forth in, and this certificate and the Capital Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of ________
__, 1997, as the same may be amended from time to time (the "Trust Agreement"),
among Bankers Trust New York Corporation, a New York corporation, as Depositor,
Wilmington Trust Company, as Delaware Trustee and as Property Trustee, the
Administrative Trustees named therein and the holders of the beneficial
interests in the Issuer Trust from time to time, including the designation of
the terms of the Capital Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement, dated as of ________ __, 1997 (the
"Guarantee Agreement"), entered into by Bankers Trust New York Corporation, a
New York corporation, and Wilmington Trust Company, as guarantee trustee, to the
extent provided therein. The Property Trustee will furnish a copy of the Trust
Agreement and the Guarantee Agreement to the Holder without charge upon written
request to the Issuer Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
This Capital Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Capital Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the exhibits thereto.
E-2
<PAGE>
In Witness Whereof, one of the Administrative Trustees of the Issuer Trust has
executed this Capital Securities Certificate this _____ day of __________, ____.
BT Capital Trust B
By: ____________________________________
Name:
Administrative Trustee
E-3
<PAGE>
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Capital
Security to:
- -------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
-------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
-------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Capital Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date:
---------------------------
Signature:
----------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
E-4
<PAGE>
EXHIBIT 4.7
================================================================================
GUARANTEE AGREEMENT
BETWEEN
BANKERS TRUST NEW YORK CORPORATION,
as Guarantor
and
WILMINGTON TRUST COMPANY,
as Guarantee Trustee
RELATING TO
BT CAPITAL TRUST B
---------------
Dated as of _______ __, 1997
---------------
===============================================================================
<PAGE>
CERTAIN SECTIONS OF THIS GUARANTEE AGREEMENT RELATING TO
SECTIONS 310 THROUGH 318 OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE ACT GUARANTEE AGREEMENT
SECTION SECTION
- ------------------- -------------------
<S> <C>
(S) 310 (a)...................................................... 4.1(a)
(b)...................................................... 4.1(c), 2.8
(c)...................................................... Not Applicable
(S) 311 (a)...................................................... 2.2(b)
(b)...................................................... 2.2(b)
(c)...................................................... Not Applicable
(S) 312 (a)...................................................... 2.2(a)
(b)...................................................... 2.2(b)
(S) 313.......................................................... 2.3
(S) 314 (a)...................................................... 2.4
(b)...................................................... Not Applicable
(c)...................................................... 2.5
(d)...................................................... Not Applicable
(e)...................................................... 1.1, 2.5, 3.2
(f)...................................................... 2.1, 3.2
(S) 315 (a)...................................................... 3.1(d)
(b)...................................................... 2.7
(c)...................................................... 3.1
(d)...................................................... 3.1(d)
(S) 316 (a)...................................................... 1.1, 2.6, 5.4
(b)...................................................... 5.3
(c)...................................................... 8.2
(S) 317 (a)...................................................... Not Applicable
(b)...................................................... Not Applicable
(S) 318 (a)...................................................... 2.1
(b)...................................................... 2.1
(c)...................................................... 2.1
</TABLE>
- ----------------
* Note: This reconciliation and the sheet shall not, for any purpose, be deemed
to be a part of the Guarantee Agreement.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
DEFINITIONS
<C> <S> <C>
Section 1.1. Definitions...................................................... 2
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application................................. 5
Section 2.2. List of Holders.................................................. 6
Section 2.3. Reports by the Guarantee Trustee................................. 6
Section 2.4. Periodic Reports to the Guarantee Trustee........................ 6
Section 2.5. Evidence of Compliance with Conditions Precedent................. 6
Section 2.6. Events of Default; Waiver........................................ 7
Section 2.7. Event of Default; Notice......................................... 7
Section 2.8. Conflicting Interests............................................ 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee....................... 7
Section 3.2. Certain Rights of Guarantee Trustee.............................. 9
Section 3.3. Compensation; Indemnity; Fees.................................... 11
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility................................... 11
Section 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.......................................................... 12
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
ARTICLE V
GUARANTEE
<C> <S> <C>
Section 5.1. Guarantee........................................................ 13
Section 5.2. Waiver of Notice and Demand...................................... 13
Section 5.3. Obligations Not Affected......................................... 13
Section 5.4. Rights of Holders................................................ 14
Section 5.5. Guarantee of Payment............................................. 14
Section 5.6. Subrogation...................................................... 15
Section 5.7. Independent Obligations.......................................... 15
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1. Subordination.................................................... 15
Section 6.2. Pari Passu Guarantees............................................ 15
ARTICLE VII
TERMINATION
Section 7.1. Termination...................................................... 16
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Successors and Assigns........................................... 16
Section 8.2. Amendments....................................................... 17
Section 8.3. Notices.......................................................... 17
Section 8.4. Benefit.......................................................... 18
Section 8.5. Governing Law.................................................... 18
Section 8.6. Counterparts..................................................... 18
</TABLE>
-ii-
<PAGE>
GUARANTEE AGREEMENT, dated as of _______ __, 1997, between BANKERS TRUST
NEW YORK CORPORATION, a New York corporation (the "Guarantor"), having its
principal office at 130 Liberty Street, New York, New York 10006, and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of BT Capital Trust B, a Delaware
statutory business trust (the "Issuer Trust").
RECITALS OF THE GUARANTOR
Whereas, pursuant to an Amended and Restated Trust Agreement, dated as of
_______ __, 1997, among Bankers Trust New York Corporation, as Depositor,
Wilmington Trust Company, as Property Trustee and Delaware Trustee, the
Administrative Trustees named therein and the holders from time to time of
undivided beneficial interests in the assets of the Issuer Trust, the Issuer
Trust is issuing $[250,000,000] aggregate Liquidation Amount (as defined in the
Trust Agreement) of its 7.90% Capital Securities, Series B1 (liquidation amount
$1,000 per capital security) (the "Capital Securities"), representing preferred
undivided beneficial interests in the assets of the Issuer Trust and having the
terms set forth in the Trust Agreement; and
Whereas, the Capital Securities will be issued by the Issuer Trust and the
proceeds thereof, together with the proceeds from the issuance of the Issuer
Trust's Common Securities (as defined herein), will be used to purchase the
Debentures (as defined in the Trust Agreement) of the Guarantor, which
Debentures will be deposited with Wilmington Trust Company, as Property Trustee
under the Trust Agreement, as trust assets; and
Whereas, as an incentive for the Holders to purchase Capital Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Capital Securities the Guarantee
Payments (as defined herein) on the terms and conditions set forth herein.
Now, Therefore, in consideration of the purchase of Capital Securities by
each Holder, which purchase the Guarantor hereby acknowledges will benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time.
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
For all purposes of this Guarantee Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) 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;
(c) The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(e) 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 Guarantee Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Guarantee Agreement as a whole and
not to any particular Article, Section or other subdivision.
"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.
"Board of Directors" means the board of directors of the Guarantor or the
Executive Committee of the board of directors of the Guarantor (or any other
committee of the board of directors of the Guarantor performing similar
functions) or a committee designated by the board of directors of the Guarantor
(or such committee), comprised of two or more members of the board of directors
of the Guarantor or officers of the Guarantor, or both.
-2-
<PAGE>
"Capital Securities" has the meaning specified in the recitals to this
Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any of its
payment obligations under this Guarantee Agreement or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days
after notice thereof to the Guarantor.
"Guarantee Agreement" means this Guarantee Agreement, as modified, amended
or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Capital Securities, to the extent not paid or
made by or on behalf of the Issuer Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time; (ii) the Redemption Price (as defined in the
Trust Agreement) with respect to any Capital Securities called for redemption by
the Issuer Trust, to the extent the Issuer Trust shall have funds on hand
available therefor at such time; and (iii) upon a voluntary or involuntary
dissolution, winding-up or liquidation of the Issuer Trust, unless Debentures
are distributed to the Holders, the lesser of (a) the Liquidation Distribution
(as defined in the Trust Agreement) with respect to the Capital Securities, to
the extent the Issuer Trust shall have funds on hand available therefor at such
time, and (b) the amount of assets of the Issuer Trust remaining available for
distribution to Holders on liquidation of the Issuer after satisfaction of
liabilities to creditors of the Issuer Trust as required by applicable law.
"Guarantee Trustee" means Wilmington Trust Company, solely in its capacity
as Guarantee Trustee and not in its individual capacity, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"Holder" means any Holder (as defined in the Trust Agreement) of any
Capital Securities; provided, however, that in determining whether the holders
of the requisite percentage of Capital Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the Guarantor,
the Guarantee Trustee, or any Affiliate of the Guarantor or the Guarantee
Trustee.
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"Indenture" means the Junior Subordinated Indenture, dated as of February
5, 1997, between Bankers Trust New York Corporation and Wilmington Trust
Company, as trustee, as the same may be modified, amended or supplemented from
time to time.
"Issuer Trust" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Capital Securities" means, except as
provided by the Trust Indenture Act, Capital Securities representing more than
50% of the aggregate Liquidation Amount (as defined in the Trust Agreement) of
all Capital Securities then Outstanding (as defined in the Trust Agreement).
"Officers' Certificate" means a certificate signed by the Chairman or a
Vice Chairman of the Board of Directors of the Guarantor or the President or a
Vice President of the Guarantor, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Guarantor, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, company,
limited liability company, trust, business trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Guarantee Trustee and
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also means, with respect to a particular matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement of the
Issuer Trust referred to in the recitals to this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Guarantee Agreement was executed; provided, however,
that if 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.
"Vice President", when used with respect to the Guarantor, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
ARTICLE II
TRUST INDENTURE ACT
SECTION 1.2. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, through
operation of Section 318(c) thereof, such imposed duties shall control.
(c) If any provision of this Guarantee Agreement modifies or excludes
any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Guarantee
Agreement as so modified or excluded, as the case may be.
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Section 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before June 30 and December 31 of
each year, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders (a "List of Holders") as
of a date not more than 15 days prior to the delivery thereof, and (b) at
such other times as the Guarantee Trustee may request in writing, within 30
days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession
or control of the Guarantor and has not otherwise been received by the
Guarantee Trustee in its capacity as such. The Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with the requirements of
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than January 31 of each year, commencing January 31, 1998, the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given
in the form of an Officers' Certificate.
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SECTION 2.6. Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, by vote, on behalf of the Holders of all the Capital Securities,
waive any past default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders,
notice of any such Event of Default known to the Guarantee Trustee, unless such
Event of Default has been cured before the giving of such notice, provided that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained actual knowledge, of such Event of
Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee hereunder. The right, title and interest
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of the Guarantee Trustee, as such, hereunder shall automatically vest in any
Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee
of its appointment hereunder, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. If an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6), the Guarantee
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement.
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(ii) The Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made.
(iii) The Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation
Amount of the Capital Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Guarantee
Trustee, or exercising any trust or power conferred upon the Guarantee
Trustee, under this Guarantee Agreement.
(iv) Subject to Section 3.1(b), no provision of this Guarantee
Agreement shall require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under
the terms of this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully 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 reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
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(iv) The Guarantee Trustee may consult with legal counsel, and the
written advice or opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its Affiliates and
may be one of its or their employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder unless such Holder shall have provided
to the Guarantee Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Guarantee Trustee
against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Guarantee Trustee; provided that nothing contained in this Section
3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee 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 Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, and the Guarantee Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed by it with due care hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power,
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duty or obligation conferred or imposed on it in any jurisdiction in which it
shall be illegal, or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
SECTION 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as may be agreed by
the Guarantor and the Guarantee Trustee from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Guarantee Trustee in accordance with
any provision of this Guarantee Agreement (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
(c) to indemnify the Guarantee Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, wilful
misconduct or bad faith on the part of the Guarantee Trustee, arising out
of or in connection with the acceptance or administration of this Guarantee
Agreement, 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.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
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(ii) be a Person that is a national or state chartered bank and
eligible pursuant to the Trust Indenture Act to act as such, and that has
at the time of such appointment a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation 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
4.1 and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(c), the Guarantee Trustee may be appointed or
removed at any time by the Guarantor.
(b) Subject to Section 4.2(c), the Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by giving written
notice thereof to the Holders and the Guarantor and by appointing a successor
Guarantee Trustee.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed and shall have accepted
such appointment. No removal or resignation of a Guarantee Trustee shall be
effective until a Successor Guarantee Trustee has been appointed by the
Guarantor and has accepted such appointment by written instrument executed by
such Successor Guarantee Trustee and delivered to the Guarantor and, in the case
of any resignation, the resigning Guarantee Trustee.
(d) If the Guarantee Trustee shall resign, be removed or become incapable
of acting as Guarantee Trustee and a replacement shall not be appointed prior to
such resignation or removal, or if a vacancy shall occur in the office of
Guarantee Trustee for any reason, and no Successor Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery to the Holders and the Guarantor of a notice of
resignation, the resigning Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Guarantee Trustee.
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ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer Trust may have or
assert, except the defense of payment. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer Trust to pay such amounts
to the Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise (other
than by Act (as defined in the Trust Agreement) of the Holders), of the
performance or observance by the Issuer Trust of any express or implied
agreement, covenant, term or condition relating to the Capital Securities
to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of all
or any portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Debentures as provided in the Indenture), Redemption
Price, Liquidation Distribution or any other sums payable under the terms
of the Capital Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the
Capital Securities;
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(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Capital
Securities, or any action on the part of the Issuer Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer Trust or any of the
assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor (other than
payment of the underlying obligation), it being the intent of this Section
5.3 that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee Agreement;
and (iv) any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agreement without first
instituting a legal proceeding against the Guarantee Trustee, the Issuer Trust
or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Debentures to Holders as
provided in the Trust Agreement.
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SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer Trust with respect to the Capital Securities
and that the Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1 Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with the obligations of the Guarantor under (i) any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by any Issuer Trust (as defined in the Indenture);
(ii) the Indenture and the Securities (as defined therein) issued thereunder;
(iii) the Expense Agreement (as defined in the Trust Agreement)
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and any similar expense agreements entered into by the Guarantor in connection
with the offering of Capital Securities (as defined in the Indenture) by any
Issuer Trust (as defined in the Indenture); (iv) the Junior Subordinated
Indenture, dated as of December 2, 1996, between Bankers Trust New York
Corporation and Wilmington Trust Company, as Trustee, the Securities (as defined
therein) issued thereunder, and any expense agreements and guarantee agreements
entered into by the Guarantor in connection with the offering of Capital
Securities (as defined in such indenture); and (v) any other security, guarantee
or other agreement or obligation that is expressly stated to rank pari passu
with the obligations of the Guarantor under this Guarantee Agreement or with any
obligation that ranks pari passu with the obligations of the Guarantor under
this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price (as defined in the Trust
Agreement) of all Capital Securities, (ii) the distribution of Debentures to the
Holders in exchange for all of the Capital Securities, or (iii) full payment of
the amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of the Issuer Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder is required to repay any sums paid with respect to
Capital Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment other than in accordance
with this provision shall be void.
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SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely affect the rights
of the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Capital Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
(a) Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(i) if given to the Guarantor, to the address or telecopy number set
forth below or such other address or telecopy number as the Guarantor may
give notice to the Guarantee Trustee and the Holders:
Bankers Trust New York Corporation
130 Liberty Street
New York, New York 10006
Attention: Office of the Secretary
Telecopy: 212-250-2675
(ii) if given to the Guarantee Trustee, at the address or telecopy
number set forth below or such other address or telecopy number as the
Guarantee Trustee may give notice to the Guarantor and the Holders:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: 302-651-8882
(iii) if given to any Holder, in the manner set forth in Section 10.8
of the Trust Agreement.
(b) All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be
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<PAGE>
deemed to have been delivered on the date of such refusal or inability to
deliver, provided that any notice given as provided in Section 8.3(a)(iii) shall
be deemed to have been given at the time specified in Section 10.8 of the Trust
Agreement.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Capital Securities.
SECTION 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.6. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
In Witness Whereof, the parties hereto have caused this Guarantee Agreement
to be duly executed, and their respective corporate seals to be hereunto
affixed, all as of the day and year first above written.
Bankers Trust New York Corporation
[SEAL]
By:
---------------------------------
Name:
Title:
Wilmington Trust Company,
as Guarantee Trustee
[SEAL]
By:
---------------------------------
Name:
Title:
State of New York )
) ss.:
County of New York )
On the .... day of ..............., 1997, before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that s/he is ............................ of Bankers Trust New
York Corporation, one of the corporations described in and which executed the
foregoing instrument; that s/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 s/he signed
her/his name thereto by like authority.
..............................
State of New York )
) ss.:
County of New York )
On the .... day of ..............., 1997, before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that s/he is ............................ of Wilmington Trust
Company, one of the corporations described in and which executed the foregoing
instrument; that s/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 s/he signed her/his name
thereto by like authority.
..............................
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<PAGE>
Exhibit 4.8
================================================================================
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
AMONG
BANKERS TRUST NEW YORK CORPORATION,
BT CAPITAL TRUST A,
AND
LEHMAN BROTHERS INC.,
as the Initial Purchaser
-----------------
Dated as of January 16, 1997
-----------------
================================================================================
<PAGE>
TABLE OF CONTENTS
=================
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Page
----
1. Interpretation and Definitions.......................................... 1
(a) Interpretation................................................... 1
(b) Definitions...................................................... 1
2. Registration Under the Securities Act................................... 5
3. Registration Procedures................................................. 8
4. Registration Expenses................................................... 16
5. Representations and Warranties.......................................... 17
6. Indemnification......................................................... 18
(a) Indemnification by the Corporation and the Issuer Trust........... 18
(b) Indemnification by the Holders and any Agents and Underwriters.... 19
(c) Notices of Claims, Etc............................................ 20
(d) Contribution...................................................... 20
7. Underwritten Offerings.................................................. 22
(a) Selection of Underwriters......................................... 22
(b) Participation by Holders.......................................... 22
(c) Consolidated Earnings Statements.................................. 22
8. Rule 144................................................................ 22
9. Miscellaneous........................................................... 23
(a) No Inconsistent Agreements........................................ 23
(b) Notices........................................................... 23
(c) Parties in Interest............................................... 23
(d) Survival.......................................................... 23
(e) GOVERNING LAW..................................................... 24
(f) Headings.......................................................... 24
(g) Entire Agreement; Amendments...................................... 24
(h) Inspection........................................................ 24
(i) Counterparts...................................................... 24
<PAGE>
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of January 16, 1997,
by and among Bankers Trust New York Corporation, a New York corporation (the
"Corporation"), BT Capital Trust A, a Delaware statutory business trust (the
"Issuer Trust") and Lehman Brothers Inc., as the initial purchaser (the "Initial
Purchaser") of the 7.90% Capital Securities, Series A1 of the Issuer Trust,
which are guaranteed by the Corporation.
1. Interpretation and Definitions.
(a) Interpretation. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(i) The terms defined in this Section have the meanings assigned to
them in this Section, and include the plural as well as the singular;
(ii) The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(iii) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(iv) Unless the context otherwise requires, any reference to a
"Section" or a "subsection" refers to a Section or a subsection, as the
case may be, of this Agreement; and
(v) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section, subsection or other subdivision.
(b) Definitions. For all purposes of this Agreement, the following terms
shall have the following respective meanings:
"Agreement" shall mean this Exchange and Registration Rights
Agreement, as modified, amended or supplemented from time to time.
"Applicable Guarantee Agreement" shall mean either the Guarantee
Agreement or the Exchange Guarantee Agreement, as the context requires.
"Applicable Indenture" shall mean either the Indenture or the Exchange
Indenture, as the context requires.
<PAGE>
"Applicable Trust Agreement" shall mean either the Trust Agreement or
the Exchange Trust Agreement, as the context requires.
"Capital Securities" shall mean the 7.90% Capital Securities, Series
A1 (Liquidation Amount $1,000 per Capital Security), to be issued under the
Trust Agreement and sold to the Initial Purchaser.
"Closing Date" shall mean the date on which the Capital Securities are
initially issued.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
"Common Securities" shall mean the common securities of the Issuer
Trust issued pursuant to the Trust Agreement.
"Corporation" shall have the meaning assigned to such term in the
preamble.
"Distributions" shall have the meaning specified in the Applicable
Trust Agreement.
"Effective Time", in the case of (i) an Exchange Offer, shall mean the
date on which the Commission declares the Exchange Offer registration
statement effective or on which such registration statement otherwise
becomes effective and (ii) a Shelf Registration, shall mean the date on
which the Commission declares the Shelf Registration effective or on which
the Shelf Registration otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
"Exchange Capital Securities shall have the meaning assigned to such
term in Section 2(a).
"Exchange Guarantee Agreement shall have the meaning assigned to such
term in Section 2(a).
"Exchange Indenture" shall have the meaning assigned to such term in
Section 2(a).
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<PAGE>
"Exchange Issuer Trust" shall have the meaning assigned to such term
in Section 2(a).
"Exchange Junior Subordinated Debentures" shall have the meaning
assigned to such term in Section 2(a).
"Exchange Offer" shall have the meaning assigned to such term in
Section 2(a).
"Exchange Offer Registration Statement" shall have the meaning
assigned to such term in Section 2(a).
"Exchange Securities" shall mean, collectively, the Exchange Capital
Securities, the Exchange Guarantee Agreement and the Exchange Junior
Subordinated Debentures.
"Exchange Trust Agreement" shall have the meaning assigned to such
term in Section 2(a).
"Guarantee Agreement" shall mean the Guarantee Agreement, dated as of
January 16, 1997, between the Corporation and Wilmington Trust Company, as
Guarantee Trustee, relating to the Capital Securities.
"holder" shall mean, with respect to the Trust Securities, the Holder
of such Trust Securities under the Applicable Trust Agreement.
"Indenture" shall mean the Junior Subordinated Indenture, dated as of
January 16, 1997, between the Corporation and Wilmington Trust Company, as
Trustee, as the same shall be amended from time to time.
"Initial Purchaser" shall have the meaning assigned to such term in
the preamble.
"Issuer Trust" shall have the meaning assigned to such term in the
preamble.
"Junior Subordinated Debentures" shall mean the 7.90% Junior
Subordinated Deferrable Interest Debentures of the Corporation to be issued
under the Indenture.
"Participating Broker-Dealer" shall mean a broker-dealer who receives
Exchange Securities in the Exchange Offer.
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<PAGE>
"person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Property Trustee" shall mean the Property Trustee named under the
Applicable Trust Agreement.
"Purchase Agreement" shall mean the Purchase Agreement, dated January
9, 1997, among the Corporation, the Issuer Trust and the Initial Purchaser.
"Registrable Securities" shall mean the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when (i) the
Exchange Offer is conducted as contemplated in Section 2(a), except if, at
or prior to the consummation of the Exchange Offer, existing Commission
interpretations are changed such that the Exchange Securities received by
holders in the Exchange Offer for Registrable Securities are not or would
not be, upon receipt, transferable by each such holder (other than a
Restricted Holder) without restriction under the Securities Act in the
circumstances contemplated by Section 2(a); provided that any such
Securities that, pursuant to the last two sentences of Section 2(a), are
included in a prospectus for use in connection with resales by broker-
dealers shall be deemed to be Registrable Securities with respect to
Sections 5, 6 and 9 until resale of such Exchange Securities has been
effected within the 90-day period referred to in Section 2(a); (ii) in the
circumstances contemplated by Section 2(b), a registration statement
registering such Securities under the Securities Act has been declared or
becomes effective and such Securities have been sold or otherwise
transferred by the holder thereof pursuant to such effective registration
statement; (iii) such Securities are sold pursuant to Rule 144 (or any
successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Corporation or pursuant to the Applicable
Indenture or such Securities are eligible to be sold pursuant to paragraph
(k) of Rule 144; or (iv) such Securities shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c).
"Registration Expenses" shall have the meaning assigned thereto in
Section 4.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Corporation within the meaning of Rule 405 under the Securities Act,
(ii) a
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<PAGE>
holder that acquires Exchange Securities outside the ordinary course of
such holder's business or (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing Exchange Securities.
"Securities" shall mean, collectively, the Capital Securities, the
Guarantee Agreement and the Junior Subordinated Debentures.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned to such term in
Section 2(b).
"Special Distributions" shall have the meaning assigned to such term
in Section 2(c).
"Special Interest" shall have the meaning assigned to such term in
Section 2(c).
"Trust Agreement" shall mean the Amended and Restated Trust Agreement,
dated as of January 16, 1997, among the Corporation, as Depositor,
Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein, and the
holders of the Trust Securities from time to time.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
"Trust Securities" shall mean, collectively, the Capital Securities
and the Common Securities.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Corporation agrees to
use its reasonable efforts to file under the Securities Act, no later than 150
days after the Closing Date, a registration statement (the "Exchange Offer
Registration Statement") relating to an offer to exchange (the "Exchange Offer")
any and all of the Capital Securities for a like aggregate liquidation amount of
capital securities (the "Exchange Capital Securities") issued by an issuer trust
substantially identical to the Issuer Trust (the "Exchange Issuer Trust"), which
Exchange Capital Securities shall be (i)
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<PAGE>
substantially identical to the Capital Securities, except that such Exchange
Capital Securities shall have been registered pursuant to an effective
registration statement under the Securities Act and shall not contain terms with
respect to Special Distributions (as defined below) or transfer restrictions,
(ii) shall be issued pursuant to a trust agreement (the "Exchange Trust
Agreement") that (except with respect to the foregoing matters) is is
substantially identical to the Trust Agreement and shall be qualified under the
Trust Indenture Act, and (iii) shall be entitled to a guarantee (the "Exchange
Guarantee Agreement") of the Corporation substantially identical to the
Guarantee Agreement which shall be qualified under the Trust Indenture Act. The
Exchange Issuer Trust shall hold junior subordinated debentures of the
Corporation (the "Exchange Junior Subordinated Debentures") that are
substantially identical to the Junior Subordinated Debentures, and shall be
entitled to the benefits of an indenture (the "Exchange Indenture") that is
either the Indenture or is substantially identical to the Indenture and that has
been qualified under the Trust Indenture Act. The Corporation agrees to use its
reasonable efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 180 days after the Closing
Date. The Exchange Offer shall be registered under the Act on the appropriate
form and shall comply with all applicable tender offer rules and regulations
under the Exchange Act. The Corporation further agrees to commence and complete
the Exchange Offer promptly after such registration statement has become
effective, hold the Exchange Offer open for at least 30 days and exchange
Exchange Securities for all Registrable Securities that have been validly
tendered and not withdrawn on or prior to the expiration of the Exchange Offer.
The Exchange Offer will be deemed to have been completed only if the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act and
without material restrictions under the Blue Sky or securities laws of a
substantial majority of the States of the United States of America. The Exchange
Offer shall be deemed to have been completed upon the earlier to occur of (i)
the Corporation's having exchanged (or caused the exchange of) the Exchange
Securities for all outstanding Registrable Securities pursuant to the Exchange
Offer and (ii) the Corporation's having exchanged (or caused the exchange of),
pursuant to the Exchange Offer, Exchange Securities for all Registrable
Securities that have been validly tendered and not withdrawn before the
expiration of the Exchange Offer, which shall be on a date that is at least 30
days following the commencement of the Exchange Offer. The Corporation agrees
(i) to include in the Exchange Offer Registration State ment a prospectus for
use in connection with any resales by any holder of Exchange Securities that is
a Participating Broker-Dealer and (ii) to keep the Exchange Offer Registration
Statement effective for a period ending on the earlier of the 90th day after the
Exchange Offer has been completed or such time as such Participating Broker-
Dealers no longer own any Registrable Securities. With respect to such Exchange
Offer Registration Statement, the Corporation and any such holder shall have the
benefit of, and shall each provide to the other, the rights of indemnification
and contribution set forth in Section 6 hereof.
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<PAGE>
(b) If, at or prior to the consummation of the Exchange Offer, existing
Commission interpretations are changed such that the Exchange Securities
received by holders in the Exchange Offer for Registrable Securities are not or
would not be, upon receipt, transferable by each such holder (other than a
Restricted Holder) without restriction under the Securities Act in the
circumstances contemplated by Section 2(a), or if the Corporation or the Issuer
Trust has received an opinion of counsel experienced in such matters to the
effect that, as a result of the consummation of the Exchange Offer, there is
more than an insubstantial risk that (a) the Exchange Issuer Trust would be
subject to United States federal income tax with respect to income received or
accrued on the Exchange Junior Subordinated Debentures, (b) interest payable by
the Corporation on the Exchange Junior Subordinated Debentures would not be
deductible by the Corporation, in whole or in part, for United States federal
income tax purposes, or (c) the Exchange Issuer Trust would be subject to more
than a de minimis amount of other taxes, duties or other governmental charges,
then in lieu of the Corporation's conducting the Exchange Offer contemplated by
Section 2(a), the Corporation and the Issuer Trust shall use their reasonable
efforts to file under the Securities Act a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities, pursuant to Rule 415 under
the Securities Act and/or any similar rule that may be adopted by the Commission
(the "Shelf Registration"). The Corporation and the Issuer Trust agree to use
their reasonable efforts to cause the Shelf Registration to become or be
declared effective no later than 150 days after the Closing Date and to keep
such Shelf Registration continuously effective (except as permitted herein) for
a period ending on the earlier of the third anniversary of the Closing Date or
such time as there are no longer any Registrable Securities outstanding. The
Corporation and the Issuer Trust further agree to supplement or make amendments
to the Shelf Registration, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Corporation and the
Issuer Trust for such Shelf Registration or by the Securities Act or rules and
regulations thereunder relating to shelf registration, and the Corporation and
the Issuer Trust agree to furnish to the holders of the Registrable Securities
copies of any such supplement or amendment, other than reports filed pursuant to
Section 13 or 15 of the Exchange Act, prior to its being used and/or filed with
the Commission.
(c) If (i) the Corporation has not filed the registration statement
relating to the Exchange Offer (or, if applicable, if the Corporation and the
Issuer Trust have not filed the Shelf Registration) on or before the 150th day
after the Closing Date, (ii) such registration statement (or, if applicable, the
Shelf Registration) has not become effective or been declared effective by the
Commission on or before the 180th day after the Closing Date, (iii) the Exchange
Offer has not been completed within 35 days after the initial effective date of
the Exchange Offer Registration Statement (if the Exchange Offer is then
required to be made), or (iv) any registration statement required by Section
2(a) or 2(b) is filed and declared effective but shall thereafter cease to be
effective (except as permitted herein) without being succeeded promptly by an
additional registration
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<PAGE>
statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), then additional interest (the
"Special Interest") shall accrue in respect of the Junior Subordinated
Debentures, as provided therein, and additional distributions (the "Special
Distributions") shall accumulate in respect of the Trust Securities, as provided
in the Trust Agreement, at the rate of 0.25% per annum for the period from the
occurrence of the Registration Default until such time as no Registration
Default is in effect (after which time no such Special Interest will accrue and
no Special Distributions will accumulate unless and until another Registration
Default occurs). Such Special Interest and Special Distributions shall be
calculated in the same manner as interest and Distributions otherwise payable in
respect of the Junior Subordinated Debentures and Trust Securities, as the case
may be, and shall be payable semi-annually in arrears on each Interest Payment
Date (as defined in the Indenture) or Distribution Date (as defined in the Trust
Agreement), as the case may be, together with (and in the same manner as) the
interest and Distributions otherwise payable in respect of the Junior
Subordinated Debentures or the Trust Securities, as the case may be. If the
Corporation elects to commence an Extension Period at any time when such Special
Interest and Special Distributions are payable, such Special Interest and
Special Distributions shall be deferred as and to the extent that the interest
and Distributions otherwise payable in respect of the Junior Subordinated
Debentures and Trust Securities are deferred.
3. Registration Procedures.
If the Corporation files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Corporation and the Issuer Trust shall
qualify the Applicable Indenture, the Applicable Trust Agreement and the
Applicable Guarantee under the Trust Indenture Act.
(b) If such qualification would require the appointment of a new trustee
under the Applicable Indenture, the Corporation shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Applicable Indenture.
(c) In connection with the Corporation's and the Issuer Trust's
obligations with respect to the Shelf Registration, if applicable, the
Corporation and the Issuer Trust shall use their reasonable efforts to effect or
cause the Shelf Registration to permit the sale of the Registrable Securities by
the holders thereof in accordance with the intended method or methods of
distribution thereof described in the Shelf Registration. In connection
therewith, each of the Corporation and the Issuer Trust shall:
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<PAGE>
(i) prepare and file with the Commission a registration statement with
respect to the Shelf Registration on any form which may be utilized by the
Corporation and the Issuer Trust and which shall permit the disposition of
the Registrable Securities in accordance with the intended method or
methods thereof, as specified in writing to the Corporation by the holders
of the Registrable Securities;
(ii) as soon as reasonably possible, prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such registration statement;
(iii) as soon as reasonably possible, comply, as to all matters
within the Corporation's or the Issuer Trust's control, as the case may be,
with the provisions of the Securities Act in connection with the
disposition of all of the Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the holders thereof, set forth in such registration
statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters (which
term, for purposes of this Agreement, shall include a person deemed to be
an underwriter within the meaning of Section 2(11) of the Securities Act),
if any, thereof, (C) the sales or placement agent, if any, therefor, and
(D) one counsel for such underwriters or agents, if any, reasonable
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission,
and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 2(b), make
available at reasonable times at the Corporation's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(c)(iv), who shall certify to the Corporation and
the Issuer Trust that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration, such financial and other
information and books and records of the Corporation, and cause the
officers, employees, counsel and independent certified public accountants
of the Corporation to respond to such inquiries, as shall be reasonably
necessary, in the reasonable judgment of the respective counsel referred to
in such Section, to conduct a reasonable investigation within the meaning
of Section
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11 of the Securities Act; provided, however, that each such party shall
agree in writing to maintain in confidence and not to disclose to any other
person any information or records designated by the Corporation as being
confidential, until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such registration
statement or otherwise, except by disclosure by such party in breach of
this Agreement), or (B) such person shall be required so to disclose such
information pursuant to the subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject
to, and only to the extent required by, the requirements of such order, and
only after such person shall have given the Corporation prompt prior
written notice of such requirement), or (C) such information, in the
opinion of counsel experienced in such matters addressed to the
Corporation, is required to be set forth in such registration statement or
the prospectus included therein or in an amendment to such registration
statement or an amendment or supplement to such prospectus in order that
such registration statement, prospectus, amendment or supplement, as the
case may be, does not contain an untrue state ment of a material fact or
omit to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(vi) promptly notify the selling holders of Registrable Securities,
the sales or placement agent, if any, therefor and the managing underwriter
or underwriters, if any, thereof and confirm such advice in writing, (A)
when such registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any post-
effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such regis tration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Corporation contemplated by Section 3(c)(xv) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the
Corporation or the Issuer Trust, as the case may be, of any notification
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, or (F) at any time when a prospectus is
required to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or post-effective
amendment, or any document incorporated by reference in any of the
foregoing, does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act or contains
an
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<PAGE>
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(vii) use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post-
effective amendment thereto at the earliest practicable date;
(viii) if reasonably requested in writing by any managing underwriter
or underwriters, any placement or sales agent or counsel for the holders of
Registrable Securities, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the applicable
rules and regulations of the Commission and as such managing underwriter or
underwriters, such agent or such holder reasonably specifies should be
included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to the
liquidation amount of Registrable Securities being sold by any holder or
agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Securities and
any discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities to
be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment in accordance herewith;
(ix) furnish to each holder of Registrable Securities, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof and the
counsel referred to in Section 3(c)(iv) an executed copy of such
registration statement, each such amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein) and such number of copies of such registration statement
(excluding exhibits thereto and documents incorporated by reference therein
unless specifically so requested by such holder, agent or underwriter, as
the case may be) and of the prospectus included in such registration
statement (including each preliminary prospectus and any summary
prospectus), conforming in all material respects to the requirements of the
Securities Act and the Trust Indenture Act, and such other documents, as
such holder, agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the offering and disposition of the Registrable
Securities owned by such holder, offered or sold by such agent or
underwritten by such underwriter and to permit such holder, agent and
underwriter to satisfy the prospectus delivery requirements of the
Securities Act; and, except during such time, if any, as a notice has been
given pursuant to clause (F) of paragraph (vi) hereof, the
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Corporation hereby consents to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement thereto
by each such holder and by any such agent and underwriter, in each case in
the form most recently provided to such party by the Corporation, in
connection with the offering and sale of the Registrable Securities covered
by the prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(x) use its reasonable efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement under
such securities laws or Blue Sky laws of such jurisdictions as any holder
of such Registrable Securities and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above and for so long as may be
necessary to enable any such holder, agent or underwriter to complete its
distribution of Securities pursuant to such registration statement (but in
any event not later than the date through which the Corporation and the
Issuer Trust are required to keep the Shelf Registration Effective pursuant
to Section 2(b)) and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such holder, agent, if
any, or underwriter, if any, to consummate the disposition in such
jurisdictions of Registrable Securities; provided, however, that neither
the Corporation, the Issuer Trust, nor the Exchange Issuer Trust shall be
required for any such purpose to (1) qualify as a foreign corporation or
foreign trust, as the case may be, in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(c)(x), (2) consent to general service of process in any such
jurisdiction, (3) subject itself to taxation in any jurisdiction where the
Corporation, Issuer Trust or the Exchange Issuer Trust, as the case may be,
is not already subject to taxation or (4) make any changes to the
Corporation's certificate of incorporation or by-laws or to any agreement
presently existing between the Corporation and its stockholders or to the
Applicable Trust Agreement;
(xi) use its reasonable efforts to obtain the consent or approval of
each governmental agency or authority, whether federal, state or local,
which may be required to effect the Shelf Registration or the offering or
sale in connection therewith or to enable the selling holder or holders to
offer, or to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates
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shall be printed, lithographed or engraved, or produced by any combination
of such methods, and which shall not bear any restrictive legends; and, in
the case of an underwritten offering, enable such Registrable Securities to
be in such denominations and registered in such names as the managing
underwriters may request (consistent with the Applicable Trust Agreement)
at least two business days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the Shelf Registration;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements or similar agreements, as appropriate, including
(without limitation) provisions relating to indemnification and
contribution substantially the same as those set forth in Section 6 hereof,
and take such other actions in connection therewith as any holders of
Registrable Securities aggregating at least 66 2/3% in aggregate
liquidation amount of the Registrable Securities included in such Shelf
Registration shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities; provided that the
Corporation shall not be required to enter into any such agreement more
than once with respect to all of the Registrable Securities and may delay
entering into such agreement until the consummation of any underwritten
public offering which the Corporation shall have then undertaken;
(xv) whether or not an agreement of the type referred to in Section
(3)(c)(xiv) hereof is entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent or any other entity,
(A) make such representations and warranties to the holders of such
Registrable Securities and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof substantially the same as those set
forth in Section 1 of the Purchase Agreement; (B) obtain an opinion or
opinions of counsel to the Corporation or the Issuer Trust, as applicable,
substantially the same as the opinions provided for in Sections 4A(b-e) and
4A(g) of the Purchase Agreement, addressed to such holder or holders and
the placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such registration statement
(and if such registration statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto); (C) obtain a
"cold comfort" letter or letters from the independent certified public
accountants of the Corporation addressed to the selling holders of
Registrable Securities, the placement or sales agent, if any, therefor and
the underwriters, if any, thereof, dated (i) the effective date of such
registration statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment
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to such registration statement which includes unaudited or audited
financial state ments as of a date or for a period subsequent to that of
the latest such statements included in such prospectus (and, if such
registration statement contemplates an underwritten offering pursuant to
any prospectus supplement to the prospectus included in such registration
statement or post-effective amendment to such registration statement which
includes unaudited or audited financial statements as of a date or for a
period subsequent to that of the latest such statements included in such
prospectus, dated the date of the closing under the underwriting agree ment
relating thereto), such letter or letters to be in customary form and
covering such matters of the type customarily covered by letters obtained
by the Corporation in public offerings; (D) deliver such other documents
and certificates, including officers' certificates, as may be reasonably
requested by any holders of at least 66 2/3% in aggregate liquidation
amount of the Registrable Securities included in such Shelf Registration or
the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or those
contained in Section 5(a) hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting agreement or
other agree ment entered into by the Corporation; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Corporation and/or the Issuer Trust to amend or waive any
provision of this Agreement pursuant to Section 9(g) hereof and of any
amendment or waiver effected pursuant thereto, each of which notices shall
contain the text of the amendment or waiver proposed or effected, as the
case may be; and
(xvii) if any broker-dealer registered under the Exchange Act shall
underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules of Fair Practice and the By-Laws of the
National Association of Securities Dealers, Inc. ("NASD") or any successor
thereto, as amended from time to time) thereof, whether as a holder of such
Registrable Securities or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, assist such broker-
dealer in complying with the requirements of such Rules and By-Laws,
including, without limitation, by (A) if such Rules or By-Laws, including
Schedule E thereto (or any successor thereto), shall so require, engaging a
"qualified independent underwriter" (as defined in such Schedule (or any
successor thereto)) to participate in the prepara tion of the registration
statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of
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the offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
yield of such Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair Practice
of the NASD.
If any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Corporation or the Issuer Trust,
such obligation shall be subject to the provision of such information.
(d) If the Corporation and the Issuer Trust would be required, pursuant to
Section 3(c)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Corporation and the Issuer Trust shall as
promptly as is reasonably practicable prepare and furnish to each such holder,
to each placement or sales agent, if any, and to each underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing. Each holder
of Registrable Securities agrees that upon receipt of any notice from the
Corporation or the Issuer Trust pursuant to Section 3(c)(vi)(F) hereof, such
holder shall forthwith discontinue the disposition of Registrable Securities,
pursuant to the registration statement applicable to such Registrable Securities
until such holder (i) shall have received copies of such amended or supplemented
prospectus, and if so directed by the Corporation or the Issuer Trust, such
holder shall deliver to the Corporation (at the Corporation's expense) all
copies, other than permanent file copies, then in such holder's possession of
the prospectus covering such Registrable Securities at the time of receipt of
such notice or (ii) shall have received notice from the Corporation or the
Issuer Trust that the disposition of Registrable Securities pursuant to the
Shelf Registration may continue.
(e) The Corporation and the Issuer Trust may require each holder of
Registrable Securities as to which any registration is being effected to furnish
in writing to the Corporation such information regarding such holder and such
holder's intended method of distribution of such Registrable Securities as the
Corporation and the Issuer Trust may from time to time reasonably request in
writing, but only to the extent that, in the opinion of the Corporation, such
information is required in order to comply with the Securities Act, and may
exclude from any such registration the Registrable Securities of any such holder
who fails to furnish such reasonably requested information within 30 days after
such request. Each such holder agrees to notify the Corporation and the Issuer
Trust as promptly as practicable of any inaccuracy or change in information
previously
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furnished by such holder to the Corporation and the Issuer Trust or of the
occurrence of any event in either case as a result of which any prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities or omits to state any material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly to furnish to the Corporation and the Issuer Trust any additional
information required to correct and update any previously furnished information
or required so that such prospectus shall not contain, with respect to such
holder or the distribution of such Registrable Securities, an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing. Each such holder shall comply with the
provisions of the Securities Act applicable to such holder with respect to the
disposition by such holder of Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by
such holder set forth in such registration statement.
(f) Until three years after the Closing Date, the Corporation will not,
and will not permit any of its "affiliates" (as defined in Rule 144 under the
Act) to, resell any of the Capital Securities or Junior Subordinated Debentures
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them except pursuant to an effective registration statement
under the Act or any exemption therefrom.
4. Registration Expenses.
If the Corporation files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
The Corporation agrees to bear and to pay or cause to be paid all expenses
incident to the Corporation's and the Issuer Trust's performance of or
compliance with this Agreement, including (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of Registrable Securities for offering and
sale under the State securities and Blue Sky laws referred to in Section 3(c)(x)
hereof, including reasonable fees and disbursements of counsel for the placement
or sales agent, if any, or underwriters, if any, in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, and the
certificates representing the Securities, (d) fees and expenses of the Trustee
(as defined in the Applicable Indenture) under the Applicable Indenture, the
Property Trustee and Delaware Trustee and Administrative Trustees (as defined in
the Applicable Trust Agreement) under the Applicable Trust Agreement and
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the Guarantee Trustee (as defined in the Applicable Guarantee) under the
Applicable Guarantee and of any escrow agent or custodian, (e) fees,
disbursements and expenses of counsel and independent certified public
accountants of the Corporation (including the expenses of any opinions or
"comfort" letters required by or incident to such performance and compliance),
(f) reasonable fees, disbursements and expenses of any "qualified independent
underwriter" engaged pursuant to Section 3(c)(xvii) hereof, (g) reasonable fees,
disbursements and expenses of one counsel for the holders of Registrable
Securities retained in connection with a Shelf Registration, as selected by the
holders of at least a majority in aggregate liquidation amount of the
Registrable Securities being registered, and (h) fees, expenses and
disbursements of any other persons retained by the Corporation in connection
with such registration (collectively, the "Registration Expenses"). To the
extent that any reasonable Registration Expenses are properly incurred, assumed
or paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof with the consent of the Corporation (which
consent shall not be unreasonably withheld), the Corporation shall reimburse
such person for the full amount of the Registration Expenses so incurred,
assumed or paid promptly after receipt of a written request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency or brokerage fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registered Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above, transfer taxes on resale
of any of the Securities by such holders and any advertising expenses incurred
by or on behalf of such holders in connection with any offers they may make.
5. Representations and Warranties.
Each of the Corporation and the Issuer Trust represents and warrants to,
and agrees with, the Initial Purchaser and each of the holders from time to time
of Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c)(ix) hereof and any further
amendments or supplements to any such registration statement or prospectus,
when it becomes effective or is filed with the Commission, as the case may
be, and, in the case of an underwritten offering of Registrable Securities,
at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and any such registration
statement and any amendment thereto will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and any
such prospectus or any amendment or supplement thereto will not contain an
untrue
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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 in light of the circumstances in which they were made; and at
all times subsequent to the Effective Time of any such registration
statement when a prospectus would be required to be delivered under the
Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(c)(vi)(F) until
(ii) such time as the Corporation furnishes an amended or supplemented
prospectus pursuant to Section 3(d) hereof, each such registration
statement, and each prospectus (including any summary prospectus) contained
therein or furnished pursuant to Section 3(c)(ix) hereof, as then amended
or supplemented, will conform in all material respects to the requirements
of the Securities Act and the Trust Indenture Act and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances in which they were made;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Corporation by a holder of
Registrable Securities or any placement or sales agent therefor or
underwriter thereof expressly for use therein.
(b) Each document, if any, filed or to be filed by the Corporation
pursuant to the Exchange Act and incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be,
conformed or will conform in all material respects to the requirements of
the Exchange Act, and none of such documents contained or will contain an
untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Corporation by a holder of Registrable Securities expressly
for use therein.
(c) This Agreement has been duly authorized, executed and delivered by
each of the Corporation and the Issuer Trust.
6. Indemnification.
(a) Indemnification by the Corporation and the Issuer Trust. Upon the
registration of the Registrable Securities pursuant to Section 2 hereof, and in
consideration of the agreements of the Initial Purchaser contained herein, and
as an inducement to the Initial Purchaser to purchase the Securities, each of
the Corporation and the Issuer Trust shall, and they hereby agree, jointly and
severally, to, indemnify and hold harmless each of the holders of Registrable
Securities to be included in such registration, and each person who
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participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities, and each Person, if any, who controls
any such agent or underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages or liabilities to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise, but only
to the extent that such losses, claims, damages or liabilities are caused by any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Corporation or the Issuer Trust to any
such holder, agent or underwriter, or any amendment or supplement thereto, or
are caused by any omission or alleged omission to state therein a material fact
required to be stated therein or neces sary to make the statements therein, in
the light of the circumstances under which they were made, 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 made
in any such registration statement, or preliminary, final or summary prospectus,
or amendment or supplement thereto based upon information furnished in writing
to the Corporation or the Issuer Trust by any such holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof
expressly for use therein; provided, however, that the foregoing indemnity
agreement shall not inure to the benefit of any such person if (i) the loss,
claim, damage or liability asserted was caused by a defect in the registration
statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, delivered to the person asserting any such losses, claims,
damages or liabilities after the period referred to in clause (ii) of the
penultimate sentence of Section 2(a) or the second sentence of Section 2(b), as
the case may be, and such defect would not have existed before the expiry of
such period, or (ii) a copy of the registration statement, or preliminary, final
or summary prospectus, or amendment or supplement thereto, as then in effect,
was not sent or given by or on behalf of such person at or prior to the written
confirmation of the sale of the relevant Registrable Securities to such person,
and if delivery of the registration statement, or preliminary, final or summary
prospectus, or amendment or supplement thereto, as so amended or supplemented,
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Corporation and the Issuer Trust may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section 2
hereof and to entering into any placement or underwriting agreement with respect
thereto, that the Corporation and the Issuer Trust shall have received an
undertaking reasonably satisfactory to each of them from the holder of such
Registrable Securities and from each placement agent or underwriter named in any
such placement agreement or underwriting agreement, severally and not jointly,
to (i) indemnify and hold harmless the Corporation and the Issuer Trust, any
authorized representative of the Corporation or the Trust, each of the
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Corporation's directors, and each person who controls the Corporation or the
Issuer Trust within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and all other holders of Registrable Securities,
against any and all losses, claims, damages or liabilities to which the
Corporation or such other holders of Registrable Securities may become subject,
under the Securities Act or otherwise, but only to the extent that such losses,
claims, damages or liabilities (or actions in respect thereof) are caused by an
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Corporation to any such holder, agent or
under writer, or any amendment or supplement thereto, or are 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, in light of the
circumstances under which they are made, not misleading, based upon written
information furnished to the Corporation and the Issuer Trust by such holder,
agent or underwriter expressly for use therein.
(c) Notices of Claims, Etc. If 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 subsection (a) or (b) of
this Section, 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 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 subsection (a) of this
Section, such separate firm shall be designated in writing by such parties. In
the case of parties indemnified pursuant to the subsection (b) of this Section,
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 judgement for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement of judgment.
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(d) Contribution. If the indemnification provided for in this Section is
unavailable to an indemnified party under subsection (a) or (b) 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 in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party on the one hand
and of the indemnified party 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 indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statements or omissions. The parties agree that it
would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of allocation that does
not take account of the considerations referred to in this subsection. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to herein 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 Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages that such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter or agent shall be required to contribute any amount
in excess of the amount by which the total price at which the Registrable
Securities placed or underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such underwriter
or agent 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) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The holders' and any underwriters'
or agent's obligations in this Section 6(d) to contribute shall be several in
proportion to the principal amount of Registrable Securities registered,
underwritten or placed, as the case may be, by them and not joint.
(e) The obligations of the Corporation and the Issuer Trust under this
Section 6 shall be in addition to any liability which the Corporation and the
Issuer Trust may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder, agent and
underwriter and each person, if any, who
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controls any holder, agent or underwriter within the meaning of the Securities
Act; and the obligations of the holders and any agents or underwriters
contemplated by this Section 6 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the
Corporation (including any person who, with his consent, is named in any
registration statement as about to become a director of the Corporation), to
each Trustee under the Applicable Trust Agreement and to each person, if any,
who controls the Corporation and the Issuer Trust within the meaning of the
Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten offering,
the managing underwriter or underwriters thereof shall be designated by the
holders of at least a majority in aggregate liquidation amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are acceptable to the
Corporation.
(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) Consolidated Earnings Statements. In the event of an underwritten
offering, the Corporation agrees to make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after the effective date of the applicable registration statement (as
defined in Rule 158(c) under the Act), a consolidated earnings statement of the
Corporation complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Corporation, Rule 158 under the Act).
8. Rule 144.
The Corporation covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Corporation
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including, but not limited to, the reports under Section
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities may reasonably
-22-
<PAGE>
request, all to the extent required from time to time to make Rule 144 available
to such holder for the sale of Registrable Securities without registration under
the Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the Commission.
Upon the reasonable request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Corporation shall
deliver to such holder a written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing, nothing in this Section 8
shall be deemed to require the Corporation to register any of its securities
under the Exchange Act.
9. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Corporation and the Issuer
Trust represents, warrants, covenants and agrees that it has not granted, and
shall not grant, registration rights with respect to Registrable Securities or
any other securities that would be inconsistent with the terms contained in this
Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Corporation, to
it at Bankers Trust New York Corporation, One Bankers Trust Plaza, 130 Liberty
Street, New York, New York 10006, Attention: Office of the Secretary, if to the
Issuer Trust, to it at Wilmington Trust Company, Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration and if to a holder, to the address of such holder set forth in
the security register or other records of the Corporation or the Issuer Trust,
as the case may be, or to such other address as any party may have furnished to
the others in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto. If any transferee
of any holder of Registrable Securities shall become a holder of Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such transferee shall be entitled
to receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement. If the
Corporation shall so request,
-23-
<PAGE>
any such successor, assign or transferee shall agree in writing to acquire and
hold the Registrable Securities subject to all of the terms hereof.
(d) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(e) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other writings
referred to herein (including the Applicable Indenture, Applicable Trust
Agreement and Applicable Guarantee and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire understanding of the
parties with respect to its subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by
the Corporation and the holders of at least 66-2/3 percent in aggregate
liquidation amount of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 9(g),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
(h) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of the
Corporation at the address thereof set forth in Section 9(b) above or at the
office of the Trustee under the Applicable Indenture.
-24-
<PAGE>
(i) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
-25-
<PAGE>
Agreed to and accepted as of the date referred to above.
BANKERS TRUST NEW YORK CORPORATION
By:_____________________________
Name:
Title:
BT CAPITAL TRUST A
By: Bankers Trust New York Corporation
on behalf of BT Capital Trust A
By:_____________________________
Name:
Title: Administrative Trustee
LEHMAN BROTHERS INC.
By:_____________________________
Name:
Title:
-26-
<PAGE>
EXHIBIT 12(1)
BANKERS TRUST NEW YORK CORPORATION AND SUBSIDIARIES
COMPUTATION OF CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
(dollars in millions)
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings:
1. Income before income taxes and
cumulative effects of accounting changes $ 906 $ 1,550 $ 869 $ 311 $ 872
2. Add: Fixed charges excluding capitalized
interest (Line 10) 3,099 3,148 3,884 5,095 5,426
3. Less: Equity in undistributed income of
unconsolidated subsidiaries and affiliates 40 30 45 28 30
------- ------- ------ ------ ------
4. Earnings including interest on deposits 3,965 4,668 4,708 5,378 6,268
5. Less: Interest on deposits 1,119 1,013 965 1,360 1,355
------- ------- ------ ------ ------
6. Earnings excluding interest on deposits $ 2,846 $ 3,655 $ 3,743 $ 4,018 $4,913
======= ======= ======= ======= ======
Fixed Charges:
7. Interest Expense $3,072 $3,122 $3,858 $5,069 $5,400
8. Estimated interest
component of net
rental expense 27 26 26 26 26
9. Amortization of debt
issuance expense - - - - -
------- ------- ------ ------ ------
10. Total fixed charges
including interest on
deposits and excluding
capitalized interest 3,099 3,148 3,884 5,095 5,426
11. Add: Capitalized
interest - - - - -
------- ------- ------ ------ ------
12. Total fixed charges 3,099 3,148 3,884 5,095 5,426
13. Less: Interest on
deposits
(Line 5) 1,119 1,013 965 1,360 1,355
------- ------- ------ ------ ------
14. Fixed charges excluding
interest on deposits $1,980 $2,135 $2,919 $3,735 $4,071
====== ====== ====== ====== ======
Consolidated Ratios of Earnings
to Fixed Charges:
Including interest on
deposits
(Line 4/Line 12) 1.28 1.48 1.21 1.06 1.16
====== ====== ====== ====== ======
Excluding interest on
deposits
(Line 6/Line 14) 1.44 1.71 1.28 1.08 1.21
====== ====== ====== ====== ======
</TABLE>
<PAGE>
EXHIBIT 12 (2)
BANKERS TRUST NEW YORK CORPORATION AND SUBSIDIARIES
COMPUTATION OF CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
(dollars in millions)
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings:
1. Income before
income taxes and
cumulative effect
of accounting
changes $ 906 $ 1,550 $ 869 $ 311 $ 872
2. Add: Fixed charges
excluding
capitalized
interest
(Line 13) 3,099 3,148 3,884 5,095 5,426
3. Less: Equity in undistri-
buted income of
unconsolidated
subsidiaries and
affiliates 40 30 45 28 30
------ ----- ----- ----- ------
4. Earnings including
interest on deposits 3,965 4,668 4,708 5,378 6,268
5. Less: Interest on
deposits 1,119 1,013 965 1,360 1,355
------ ----- ----- ----- ------
6. Earnings excluding
interest on deposits $ 2,846 $ 3,655 $ 3,743 $ 4,018 $ 4,913
======= ======= ======= ======= =======
Preferred Stock Dividend Requirements:
7. Preferred stock dividend
requirements $ 30 $ 23 $ 28 $ 51 $ 51
8. Ratio of income from
continuing operations
before income taxes to
income fROMm continuing
operations after income
taxes 142% 145% 141% 145% 142%
------ ----- ----- ----- ------
9. Preferred stock dividend
requirements on a pretax
basis $ 43 $ 33 $ 39 $ 74 $ 72
======= ====== ====== ======= =======
Fixed Charges:
10. Interest Expense $ 3,072 $ 3,122 $ 3,858 $5,069 $ 5,400
11. Estimated interest
component of net
rental expense 27 26 26 26 26
12. Amortization of debt
issuance expense - - - - -
------- ------ ------ ------ -------
13. Total fixed charges
including interest on
deposits and excluding
capitalized interest 3,099 3,148 3,884 5,095 5,426
14. Add: Capitalized
interest - - - - -
------- ------ ------ ------ -------
15. Total fixed charges 3,099 3,148 3,884 5,095 5,426
16. Add: Preferred stock
dividend require-
ments - pretax
(Line 9) 43 33 39 74 72
------- ------ ------ ------ -------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
17. Total combined fixed
charges and preferred
stock dividend require-
ments on a pretax
basis 3,142 3,181 3,923 5,169 5,498
18. Less: Interest on
deposits
(Line 5) 1,119 1,013 965 1,360 1,355
----- ----- ----- ----- -----
19. Combined fixed charges
and preferred stock
dividend requirements
on a pretax basis
excluding interest on
deposits $2,023 $2,168 $2,958 $3,809 $4,143
====== ====== ====== ====== ======
Consolidated Ratios of Earnings
to Combined Fixed Charges
and Preferred Stock
Dividend Requirements:
Including interest on
deposits
(Line 4/Line 17) 1.26 1.47 1.20 1.04 1.14
==== ==== ==== ==== ====
Excluding interest on
deposits
(Line 6/Line 19) 1.41 1.69 1.27 1.05 1.19
==== ==== ==== ==== ====
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and
in the Registration Statement (Form S-4) and related Prospectus of
Bankers Trust New York Corporation and BT Capital Trust B to offer to
exchange the 7.90% Capital Securities, Series B1 of BT Capital Trust B
for the outstanding 7.90% Capital Securities, Series A1 of BT Capital
Trust A and to the incorporation by reference therein of our report
dated January 25, 1996, with respect to the consolidated financial
statements of Bankers Trust New York Corporation and Subsidiaries
included in its Annual Report (Form 10-K) for the year ended December
31, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
New York, New York
March 4, 1997
<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 Frank N. Newman, George J. Vojta,
Richard H. Daniel, 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 of the securities of the
Corporation in connection with 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 a Registration Statement to be filed with
the Securities and Exchange Commission to any and all amendments, including pre-
and post-effective amendments, to the said Registration Statement and to any and
all instruments and documents filed as a part of or in connection with the said
Registration Statement 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.
December 17, 1996 Bankers Trust New York Corporation
By /s/ Frank N. Newman
--------------------------------
Frank N. Newman
Chairman of the Board
/s/ Frank N. Newman
- -----------------------------
Frank N. Newman
Chairman of the Board of Directors
(Principal Executive Officer)
/s/ Richard H. Daniel
- -----------------------------
Richard H. Daniel
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
/s/ George B. Beitzel
- -----------------------------
George B. Beitzel Director
/s/ Phillip A. Griffiths
- -----------------------------
Phillip A. Griffiths Director
/s/ William R. Howell
- -----------------------------
William R. Howell Director
/s/ Jon M. Huntsman
- -----------------------------
Jon M. Huntsman Director
/s/ Vernon E. Jordan, Jr.
- -----------------------------
Vernon E. Jordan, Jr. Director
/s/ Hamish Maxwell
- -----------------------------
Hamish Maxwell Director
/s/ N.J. Nicholas Jr.
- -----------------------------
N.J. Nicholas Jr. Director
/s/ Russell E. Palmer
- -----------------------------
Russell E. Palmer Director
/s/ Donald L. Staheli
- -----------------------------
Donald L. Staheli Director
/s/ Patricia C. Stewart
- -----------------------------
Patricia C. Stewart Director
- -----------------------------
George J. Vojta Director
/s/ Paul A. Volcker
- -----------------------------
Paul A. Volcker Director
<PAGE>
EXHIBIT 25.1
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
BANKERS TRUST NEW YORK CORPORATION
(Exact name of obligor as specified in its charter)
New York 13-6180473
(State of incorporation) (I.R.S. employer identification no.)
130 Liberty Street
New York, New York 10006
(Address of principal executive offices) (Zip Code)
7.90% Junior Subordinated Deferrable Interest Debentures, Series B1
of Bankers Trust New York Corporation
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 7th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ Emmett R. Harmon
----------------------------- ----------------------
Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is WILMINGTON TRUST COMPANY whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive deposits
of money, or securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and generally to
use, exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or necessary
for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate
or interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit,
order, or decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of Delaware
or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority, in the
State of Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or authority
such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as security for
the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any private,
public or municipal corporation within and without the State of
Delaware, or of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any foreign
government or country; to receive, collect, receipt for, and dispose
of interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held and owned by it, and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or mortgages of or
upon the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when the Board
of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by law,
to lease, purchase, hold, sell, assign, transfer, pledge, mortgage
and convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and
to undertake the whole or any part of the assets and liabilities of
any person, firm, association or corporation, and to pay for the same
in cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any
foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes and
powers.
FOURTH: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
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<PAGE>
stock and whether such dividends shall be cumulative or non-
cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted by the
Board of Directors pursuant to section (b) of this Article FOURTH,
each holder of Common Stock shall have one vote in respect of each
share of Common Stock held on all matters voted upon by the
stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article FOURTH and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
9
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NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other corporation
(whether or not itself an Interested Stockholder), which, after such
merger or consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger
or consolidation of the Corporation with any of its Subsidiaries or
any similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any one or
more of clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any
Subsidiary has an aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board of
Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
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Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the Trust
Department and the investment of trust funds, in all matters, however, being
subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the Audit
Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the majority
of its members shall deem it to be proper for the transaction of its business,
and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any Committee
created under Article III of the By-Laws of this Company, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absence or
disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of
stock shall be issued only upon giving such security as may be satisfactory to
the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 7, 1997 By: /s/ Emmett R. Harmon
---------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any
state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- -----------------------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1996.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins.................. 213,895
Interest-bearing balances............................................ 0
Held-to-maturity securities................................................ 465,818
Available-for-sale securities.............................................. 752,297
Federal funds sold......................................................... 95,000
Securities purchased under agreements to resell............................ 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income..............3,634,003
LESS: Allowance for loan and lease losses......................... 51,847
LESS: Allocated transfer risk reserve............................. 0
Loans and leases, net of unearned income, allowance, and reserve... 3,582,156
Assets held in trading accounts.......................................... 0
Premises and fixed assets (including capitalized leases)................. 89,129
Other real estate owned.................................................. 3,520
Investments in unconsolidated subsidiaries and associated companies...... 52
Customers' liability to this bank on acceptances outstanding............. 0
Intangible assets........................................................ 4,593
Other assets............................................................. 114,300
Total assets............................................................. 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices..................................................... 3,749,697
Noninterest-bearing............................................... 852,790
Interest-bearing.................................................. 2,896,907
Federal funds purchased................................................. 77,825
Securities sold under agreements to repurchase.......................... 192,295
Demand notes issued to the U.S. Treasury................................ 53,526
Trading liabilities..................................................... 0
Other borrowed money:................................................... ///////
With original maturity of one year or less........................ 714,000
With original maturity of more than one year...................... 43,000
Mortgage indebtedness and obligations under capitalized leases.......... 0
Bank's liability on acceptances executed and outstanding................ 0
Subordinated notes and debentures....................................... 0
Other liabilities....................................................... 98,756
Total liabilities....................................................... 4,929,099
Limited-life preferred stock and related surplus........................ 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................... 0
Common Stock............................................................ 500
Surplus................................................................. 62,118
Undivided profits and capital reserves.................................. 367,371
Net unrealized holding gains (losses) on available-for-sale securities.. 862
Total equity capital.................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital..... 5,359,950
</TABLE>
<PAGE>
EXHIBIT 25.2
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
BANKERS TRUST NEW YORK CORPORATION
BT CAPITAL TRUST B
(Exact name of obligor as specified in its charter)
New York 13-6180473
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
130 Liberty Street
New York, New York 10006
(Address of principal executive offices) (Zip Code)
Capital Securities of BT Capital Trust B
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
- -------- --------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an affiliate
of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 7th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ Emmett R. Harmon
------------------------------ ----------------------
Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is WILMINGTON TRUST COMPANY whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive deposits
of money, or securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and generally to
use, exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or necessary
for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit,
order, or decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of Delaware
or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority, in the
State of Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or authority
such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as security for
the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any private,
public or municipal corporation within and without the State of
Delaware, or of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any foreign
government or country; to receive, collect, receipt for, and dispose
of interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held and owned by it, and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or mortgages of or
upon the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when the Board
of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by law,
to lease, purchase, hold, sell, assign, transfer, pledge, mortgage
and convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any
foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes and
powers.
FOURTH: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
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stock and whether such dividends shall be cumulative or non-
cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each holder
of Common Stock shall have one vote in respect of each share of
Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article FOURTH and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
9
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NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any one or
more of clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any
Subsidiary has an aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
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BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board of
Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
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Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the Trust
Department and the investment of trust funds, in all matters, however, being
subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the Audit
Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the majority
of its members shall deem it to be proper for the transaction of its business,
and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
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five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any Committee
created under Article III of the By-Laws of this Company, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absence or
disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of
stock shall be issued only upon giving such security as may be satisfactory to
the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 7, 1997 By: /s/ Emmett R. Harmon
---------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------- ----------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1996.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............... 213,895
Interest-bearing balances......................................... 0
Held-to-maturity securities............................................. 465,818
Available-for-sale securities........................................... 752,297
Federal funds sold...................................................... 95,000
Securities purchased under agreements to resell......................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income................ 3,634,003
LESS: Allowance for loan and lease losses.............. 51,847
LESS: Allocated transfer risk reserve.................. 0
Loans and leases, net of unearned income, allowance, and reserve.. 3,582,156
Assets held in trading accounts......................................... 0
Premises and fixed assets (including capitalized leases)................ 89,129
Other real estate owned................................................. 3,520
Investments in unconsolidated subsidiaries and associated companies..... . 52
Customers' liability to this bank on acceptances outstanding............ 0
Intangible assets....................................................... 4,593
Other assets............................................................ 114,300
Total assets............................................................ 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices..................................................... 3,749,697
Noninterest-bearing............................................... 852,790
Interest-bearing.................................................. 2,896,907
Federal funds purchased................................................. 77,825
Securities sold under agreements to repurchase.......................... 192,295
Demand notes issued to the U.S. Treasury................................ 53,526
Trading liabilities..................................................... 0
Other borrowed money:................................................... ///////
With original maturity of one year or less........................ 714,000
With original maturity of more than one year...................... 43,000
Mortgage indebtedness and obligations under capitalized leases.......... 0
Bank's liability on acceptances executed and outstanding................ 0
Subordinated notes and debentures....................................... 0
Other liabilities....................................................... 98,756
Total liabilities....................................................... 4,929,099
Limited-life preferred stock and related surplus........................ 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................... 0
Common Stock............................................................ 500
Surplus................................................................. 62,118
Undivided profits and capital reserves.................................. 367,371
Net unrealized holding gains (losses) on available-for-sale securities.. 862
Total equity capital.................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital..... 5,359,950
</TABLE>
2
<PAGE>
EXHIBIT 25.3
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
BANKERS TRUST NEW YORK CORPORATION
(Exact name of obligor as specified in its charter)
New York 13-6180473
(State of incorporation) (I.R.S. employer identification no.)
130 Liberty Street
New York, New York 10006
(Address of principal executive offices) (Zip Code)
Bankers Trust New York Corporation Guarantee
with respect to Capital Securities of BT Capital Trust B
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
- -------- --------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an affiliate
of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 7th day
of February, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ Emmett R. Harmon
----------------------------- ----------------------
Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is WILMINGTON TRUST COMPANY whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive deposits
of money, or securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and generally to
use, exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or necessary
for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit,
order, or decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of Delaware
or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority, in the
State of Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or authority
such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as security for
the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any private,
public or municipal corporation within and without the State of
Delaware, or of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any foreign
government or country; to receive, collect, receipt for, and dispose
of interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held and owned by it, and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or mortgages of or
upon the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when the Board
of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by law,
to lease, purchase, hold, sell, assign, transfer, pledge, mortgage
and convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any
foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes and
powers.
FOURTH: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
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<PAGE>
stock and whether such dividends shall be cumulative or non-
cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each holder
of Common Stock shall have one vote in respect of each share of
Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article FOURTH and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
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NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any one or
more of clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any
Subsidiary has an aggregate fair market value of $1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10 days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board of
Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
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Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the Trust
Department and the investment of trust funds, in all matters, however, being
subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the Audit
Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the majority
of its members shall deem it to be proper for the transaction of its business,
and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
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<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any Committee
created under Article III of the By-Laws of this Company, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absence or
disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of
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Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of
stock shall be issued only upon giving such security as may be satisfactory to
the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 7, 1997 By: /s/ Emmett R. Harmon
---------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ------------------------ ----------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1996.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
<S> <C>
Noninterest-bearing balances and currency and coins............... 213,895
Interest-bearing balances......................................... 0
Held-to-maturity securities............................................. 465,818
Available-for-sale securities........................................... 752,297
Federal funds sold...................................................... 95,000
Securities purchased under agreements to resell......................... 39,190
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 3,634,003
LESS: Allowance for loan and lease losses........... 51,847
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve.. 3,582,156
Assets held in trading accounts......................................... 0
Premises and fixed assets (including capitalized leases)................ 89,129
Other real estate owned................................................. 3,520
Investments in unconsolidated subsidiaries and associated companies..... . 52
Customers' liability to this bank on acceptances outstanding............ 0
Intangible assets....................................................... 4,593
Other assets............................................................ 114,300
Total assets............................................................ 5,359,950
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices..................................................... 3,749,697
Noninterest-bearing.......... 852,790
Interest-bearing............. 2,896,907
Federal funds purchased................................................. 77,825
Securities sold under agreements to repurchase.......................... 192,295
Demand notes issued to the U.S. Treasury................................ 53,526
Trading liabilities..................................................... 0
Other borrowed money:................................................... ///////
With original maturity of one year or less........................ 714,000
With original maturity of more than one year...................... 43,000
Mortgage indebtedness and obligations under capitalized leases.......... 0
Bank's liability on acceptances executed and outstanding................ 0
Subordinated notes and debentures....................................... 0
Other liabilities....................................................... 98,756
Total liabilities....................................................... 4,929,099
Limited-life preferred stock and related surplus........................ 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................... 0
Common Stock............................................................ 500
Surplus................................................................. 62,118
Undivided profits and capital reserves.................................. 367,371
Net unrealized holding gains (losses) on available-for-sale securities.. 862
Total equity capital.................................................... 430,851
Total liabilities, limited-life preferred stock, and equity capital..... 5,359,950
</TABLE>
2
<PAGE>
EXHIBIT 99.1
LETTER OF TRANSMITTAL
BANKERS TRUST NEW YORK CORPORATION
OFFER TO EXCHANGE THE
7.90% CAPITAL SECURITIES, SERIES B1
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF BT CAPITAL TRUST B
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR THE OUTSTANDING
7.90% CAPITAL SECURITIES, SERIES A1
OF BT CAPITAL TRUST A
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS
DATED MARCH __, 1997
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON , 1997, UNLESS THE OFFER IS EXTENDED.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WILMINGTON TRUST COMPANY
BY MAIL/OVERNIGHT DELIVERY: BY HAND:
Wilmington Trust Company Wilmington Trust Company
1100 North Market Street 1105 North Market Street, 1st Floor
Wilmington, Delaware 19890-0001 Wilmington, Delaware 19890
Attn: Jill Rylee Attn: Corporate Trust Operations
FACSIMILE TRANSMISSIONS:
(302) 651-1079
TO CONFIRM BY TELEPHONE OR FOR INFORMATION:
(302) 651-8869
Jill Rylee
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE
INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by holders of Old Capital
Securities (as defined below) if either (i) Old Capital Securities are to be
forwarded herewith or (ii) tenders of Old Capital Securities are to be made by
book-entry transfer to an account maintained by Wilmington Trust Company (the
"Exchange Agent") at The Depository Trust Company ("DTC") pursuant to the
procedures set forth under "The Exchange Offer--Procedures for Tendering Old
Capital Securities" in the Prospectus and an Agent's Message (as defined below)
is not delivered.
Holders of Old Capital Securities whose certificates (the "Certificates")
for such Old Capital Securities are not immediately available or who cannot
deliver their Certificates and all other required documents to the Exchange
Agent on or prior to the Expiration Date (as defined in the Prospectus) or who
cannot complete the procedures for book-entry transfer on or prior to the
Expiration Date, must tender their Old Capital Securities according to the
guaranteed delivery procedures set forth in "The Exchange Offer--Procedures for
Tendering Old Capital Securities--Guaranteed Delivery" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
<PAGE>
<TABLE>
<CAPTION>
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
LIQUIDATION
AMOUNT OF OLD NUMBER OF
CAPITAL SECURITIES LIQUIDATION BENEFICIAL HOLDERS
NAME AND ADDRESS OF TENDERED (IF ALL AMOUNT OF OLD FOR WHICH OLD
REGISTERED HOLDER CERTIFICATE ARE TENDERED) CAPITAL CAPITAL SECURITIES
(PLEASE FILL IN IF BLANK) NUMBERS* SECURITIES TENDERED ARE HELD
(IF LESS THAN ALL ARE
TENDERED)**
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
$ $
- ------------------------------------------------------------------------------------------------------------------------------------
$ $
- ------------------------------------------------------------------------------------------------------------------------------------
$ $
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL AMOUNT TENDERED: $ $
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by book-entry holders.
** Old Capital Securities may be tendered in whole or in part in denominations
of $100,000 and integral multiples of $1,000 in excess thereof, provided that
if any Old Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof must be $100,000 or any integral
multiple of $1,000 in excess thereof. All Old Capital Securities held shall
be deemed tendered unless a lesser number is specified in this column.
- --------------------------------------------------------------------------------
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS (defined in Instruction 1)
ONLY)
[ ] CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY BOOK-
ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH
DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
--------------------------------------------
DTC Account Number:
-------------------------------------------------------
Transaction Code Number:
--------------------------------------------------
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name of Registered Holder:
------------------------------------------------
Window Ticket Number (if any):
--------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
-----------------------
Name of Institution that Guaranteed Delivery:
-----------------------------
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution:
--------------------------------------------
DTC Account Number:
-------------------------------------------------------
Transaction Code Number:
--------------------------------------------------
[ ] CHECK HERE IF OLD CAPITAL SECURITIES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER AND UNEXCHANGED OR UNTENDERED OLD CAPITAL SECURITIES ARE TO BE
RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER
TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
---------------------------------------------------------------------
Address:
------------------------------------------------------------------
Contact Person:
-----------------------------------------------------------
Area Code and Telephone Number:
--------------------------------------
-2-
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Bankers Trust New York Corporation,
a New York corporation (the "Corporation"), the above-described aggregate
Liquidation Amount of the 7.90% Capital Securities, Series A1 (the "Old
Capital Securities") of BT Capital Trust A, a statutory business trust
created under Delaware law (the "Old Issuer Trust"), in exchange for a like
aggregate Liquidation Amount of the 7.90% Capital Securities, Series B1
(the "New Capital Securities") of BT Capital Trust B, a statutory business
trust created under Delaware law (the "Issuer Trust"), which have been
registered under the Securities Act of 1933 (the "Securities Act"), upon
the terms and subject to the conditions set forth in the Prospectus dated
March __, 1997 (as the same may be amended or supplemented from time to
time, the "Prospectus"), receipt of which is hereby acknowledged, and in
this Letter of Transmittal (which, together with the Prospectus,
constitutes the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or
any portion of the Old Capital Securities tendered herewith in accordance
with the terms and conditions of the Exchange Offer (including, if the
Exchange Offer is extended or amended, the terms and conditions of any such
extension or amendment), the undersigned hereby sells, assigns and
transfers to or upon the order of the Corporation all right, title and
interest in and to such Old Capital Securities as are being tendered
herewith. The undersigned hereby irrevocably constitutes and appoints the
Exchange Agent as its agent and attorney-in-fact (with full knowledge that
the Exchange Agent is also acting as agent of the Corporation, the Old
Issuer Trust and the Issuer Trust in connection with the Exchange Offer)
with respect to the tendered Old Capital Securities, with full power of
substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), subject only to the right of withdrawal
described in the Prospectus, to (i) deliver Certificates for Old Capital
Securities to the Corporation together with all accompanying evidences of
transfer and authenticity to, or upon the order of, the Corporation, upon
receipt by the Exchange Agent, as the undersigned's agent, of the New
Capital Securities to be issued in exchange for such Old Capital
Securities, (ii) present Certificates for such Old Capital Securities for
transfer, and to transfer the Old Capital Securities on the books of the
Old Issuer Trust, and (iii) receive for the account of the Corporation all
benefits and otherwise exercise all rights of beneficial ownership of such
Old Capital Securities, all in accordance with the terms and conditions of
the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED
HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER
THE OLD CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE
ACCEPTED FOR EXCHANGE, THE CORPORATION WILL ACQUIRE GOOD, MARKETABLE AND
UNENCUMBERED TITLE THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS,
CHARGES AND ENCUMBRANCES, AND THAT THE OLD CAPITAL SECURITIES TENDERED
HEREBY ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED
WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY
THE CORPORATION, THE ISSUER TRUST, THE OLD ISSUER TRUST OR THE EXCHANGE
AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND
TRANSFER OF THE OLD CAPITAL SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED
WILL COMPLY WITH ANY OBLIGATIONS IT MAY HAVE UNDER THE REGISTRATION RIGHTS
AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE
EXCHANGE OFFER.
-3-
<PAGE>
The name and address of the registered holder of the Old Capital
Securities tendered hereby should be printed above, if they are not already
set forth above, as they appear on the Certificates representing such Old
Capital Securities. The Certificate numbers and the Old Capital Securities
that the undersigned wishes to tender should be indicated in the
appropriate boxes above.
If any tendered Old Capital Securities are not exchanged pursuant to
the Exchange Offer for any reason, or if Certificates are submitted for
more Old Capital Securities than are tendered or accepted for exchange,
Certificates for such unexchanged or untendered Old Capital Securities will
be returned (or, in the case of Old Capital Securities tendered by book-
entry transfer, such Old Capital Securities will be credited to an account
maintained at DTC), without expense to the tendering holder, promptly
following the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Capital Securities
pursuant to any one of the procedures described under "The Exchange Offer--
Procedures for Tendering Old Capital Securities" in the Prospectus and in
the instructions herein will, upon the Corporation's acceptance for
exchange of such tendered Old Capital Securities, constitute a binding
agreement between the undersigned and the Corporation upon the terms and
subject to the conditions of the Exchange Offer. The undersigned recognizes
that, under certain circumstances set forth in the Prospectus, the
Corporation may not be required to accept for exchange any of the Old
Capital Securities tendered hereby.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the New
Capital Securities be issued in the name of the undersigned or, in the case
of a book-entry transfer of Old Capital Securities, that such New Capital
Securities be credited to the account indicated above maintained at DTC. If
applicable, substitute Certificates representing Old Capital Securities not
exchanged or not accepted for exchange will be issued to the undersigned
or, in the case of a book-entry transfer of Old Capital Securities, will be
credited to the account indicated above maintained at DTC. Similarly,
unless otherwise indicated under "Special Delivery Instructions" below,
please deliver New Capital Securities to the undersigned at the address
shown below the undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF THE CORPORATION, THE ISSUER TRUST OR
THE OLD ISSUER TRUST WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES
ACT, (II) ANY NEW CAPITAL SECURITIES TO BE RECEIVED BY THE UNDERSIGNED ARE
BEING ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS, (III) THE
UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO
PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF
NEW CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER, AND (IV) IF
THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN,
AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH NEW CAPITAL SECURITIES. BY TENDERING OLD CAPITAL
SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF
TRANSMITTAL, A HOLDER OF OLD CAPITAL SECURITIES THAT IS A BROKER-DEALER
REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED
BY THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND
EXCHANGE COMMISSION TO THIRD PARTIES, THAT (A) SUCH OLD CAPITAL SECURITIES
HELD BY
-4-
<PAGE>
THE BROKER-DEALER ARE HELD ONLY AS A NOMINEE, OR (B) SUCH OLD CAPITAL
SECURITIES WERE ACQUIRED BY SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS A
RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL
DELIVER A PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME) MEETING
THE REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF
SUCH NEW CAPITAL SECURITIES (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY
DELIVERING A PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE DEEMED TO ADMIT
THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
THE CORPORATION AND THE ISSUER TRUST HAVE AGREED THAT, SUBJECT TO THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY
BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A
PARTICIPATING BROKER-DEALER IN CONNECTION WITH RESALES OF NEW CAPITAL
SECURITIES RECEIVED IN EXCHANGE FOR OLD CAPITAL SECURITIES, WHERE SUCH OLD
CAPITAL SECURITIES WERE ACQUIRED BY SUCH PARTICIPATING BROKER-DEALER FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING
ACTIVITIES, FOR A PERIOD ENDING 90 DAYS AFTER THE EXPIRATION DATE (SUBJECT
TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE
PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH NEW CAPITAL SECURITIES HAVE BEEN
DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER. IN THAT REGARD, EACH
PARTICIPATING BROKER-DEALER WHO ACQUIRED OLD CAPITAL SECURITIES FOR ITS OWN
ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES, BY
TENDERING SUCH OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, AGREES THAT, UPON RECEIPT OF NOTICE FROM THE CORPORATION OR
THE ISSUER TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY
FACT THAT MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE
PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR THAT CAUSES THE PROSPECTUS TO
OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS
CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE
OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION RIGHTS
AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE OF NEW
CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL THE CORPORATION OR THE
ISSUER TRUST HAVE AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH
MISSTATEMENT OR OMISSION AND HAVE FURNISHED COPIES OF THE AMENDED OR
SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR THE
CORPORATION OR THE ISSUER TRUST HAS GIVEN NOTICE THAT THE SALE OF THE NEW
CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE. IF THE CORPORATION
OR THE ISSUER TRUST GIVES SUCH NOTICE TO SUSPEND THE SALE OF THE CAPITAL
SECURITIES, IT SHALL EXTEND THE 90-DAY PERIOD REFERRED TO ABOVE DURING
WHICH PARTICIPATING BROKER-DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN
CONNECTION WITH THE RESALE OF CAPITAL SECURITIES BY THE NUMBER OF DAYS
DURING THE PERIOD FROM AND INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE
TO AND INCLUDING THE DATE WHEN PARTICIPATING BROKER-DEALERS SHALL HAVE
RECEIVED COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO
PERMIT RESALES OF THE NEW CAPITAL SECURITIES OR TO AND INCLUDING THE DATE
ON WHICH THE CORPORATION OR THE ISSUER TRUST HAS
-5-
<PAGE>
GIVEN NOTICE THAT THE SALE OF NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE
CASE MAY BE.
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated Distributions on such
Old Capital Securities for any period from and after the last Distribution
date to which Distributions have been paid or duly provided for on such Old
Capital Securities prior to the original issue date of the New Capital
Securities or, if no such Distributions have been paid or duly provided
for, will not receive any accumulated Distributions on such Old Capital
Securities, and the undersigned waives the right to receive any
distributions on such Old Capital Securities accumulated from and after
such Distribution date or, if no such Distributions have been paid or duly
provided for, from and after ______________ __, 199_.
All authority herein conferred or agreed to be conferred in this
Letter of Transmittal shall survive the death or incapacity of the undersigned
and any obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
-6-
<PAGE>
HOLDERS SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE 14)
(NOTE: SIGNATURES MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered holder exactly as name appears on
Certificates for the Old Capital Securities hereby tendered or on a security
position listing, or by any person authorized to become the registered holder by
endorsements and documents transmitted herewith (including such opinions of
counsel, certifications and other information as may be required by the
Corporation, the Old Issuer Trust or the Exchange Agent to comply with the
restrictions on transfer applicable to the Old Capital Securities). If
signature is by an attorney-in-fact, executor, administrator, trustee, guardian,
officer of a corporation or another acting in a fiduciary capacity or
representative capacity, please set forth the signer's full title. See
Instruction 5.
.
---------------------------------------------------------------------------
.
---------------------------------------------------------------------------
(SIGNATURE OF HOLDER)
Date: , 1997
--------------------------
Name:
-------------------------------------------------------------------------
(PLEASE PRINT)
Capacity (full title):
-------------------------------------------------------
Address:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-----------------------------------------------
- ------------------------------------------------------------------------------
Tax Identification or Social Security Number:
---------------------------------
GUARANTEE OF SIGNATURE
(SEE INSTRUCTIONS 2 AND 5)
.
---------------------------------------------------------------------------
(AUTHORIZED SIGNATURE)
Date: , 1997
-----------------
Name of Firm:
-----------------------------------------------------------------
Capacity (full title):
--------------------------------------------------------
(PLEASE PRINT)
Address:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-----------------------------------------------
-7-
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the New Capital Securities and/or any Old Capital
Securities that are not tendered are to be issued in the name of someone other
than the registered holder of the Old Capital Securities whose name appears
above.
Issue
[ ] New Capital Securities
[ ] Old Capital Securities not tendered
to:
Name:
-----------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-------------------------------------------------
Tax Identification or Social Security Number:
-----------------------------------
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the New Capital Securities and/or any Old Capital
Securities that are not tendered are to be sent to someone other than the
registered holder of the Old Capital Securities whose name appears above, or to
such registered holder at an address other than that shown above.
Mail
[ ] New Capital Securities
[ ] Old Capital Securities not tendered
to:
Name:
-----------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-------------------------------------------------
Tax Identification or Social Security Number:
-----------------------------------
-8-
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be completed if
either (a) Certificates are to be forwarded herewith or (b) tenders are to
be made pursuant to the procedures for tender by book-entry transfer set
forth under "The Exchange Offer--Procedures for Tendering Old Capital
Securities" in the Prospectus and an Agent's Message is not delivered.
Certificates, or book-entry confirmation of a book-entry transfer of such
Old Capital Securities into the Exchange Agent's account at DTC, as well as
this Letter of Transmittal (or a facsimile thereof), properly completed and
duly executed, with any required signature guarantees, and any other
documents required by this Letter of Transmittal, must be received by the
Exchange Agent at its address set forth herein on or prior to the
Expiration Date. Tenders by book-entry transfer may also be made by
delivering an Agent's Message in lieu of this Letter of Transmittal. The
term "book-entry confirmation" means a timely confirmation of book-entry
transfer of Old Capital Securities into the Exchange Agent's account at
DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express acknowledgment
from the tendering participant, which acknowledgment states that such
participant has received and agrees to be bound by the Letter of
Transmittal (including the representations contained herein) and that the
Issuer Trust and the Corporation may enforce the Letter of Transmittal
against such participant. Old Capital Securities may be tendered in whole
or in part in any Liquidation Amount of $100,000 (100 Old Capital
Securities) or any integral multiple of $1,000 in excess thereof, provided
that if any Old Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof must also be $100,000 (100 Old
Capital Securities) or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) whose
Old Capital Securities are not immediately available, (ii) who cannot
deliver their Old Capital Securities, this Letter of Transmittal and all
other required documents to the Exchange Agent on or prior to the
Expiration Date or (iii) who cannot complete the procedures for delivery by
book-entry transfer on or prior to the Expiration Date, may tender their
Old Capital Securities by properly completing and duly executing a Notice
of Guaranteed Delivery pursuant to the guaranteed delivery procedures set
forth under "The Exchange Offer--Procedures for Tendering Old Capital
Securities" in the Prospectus. Pursuant to such procedures: (i) such tender
must be made by or through an Eligible Institution (as defined below); (ii)
a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form made available by the Corporation, must be
received by the Exchange Agent on or prior to the Expiration Date; and
(iii) the Certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with
a Letter of Transmittal (or a facsimile thereof), properly completed and
duly executed, with any required signature guarantees and any other
documents required by this Letter of Transmittal, must be received by the
Exchange Agent within three New York Stock Exchange Inc. trading days after
the date of execution of such Notice of Guaranteed Delivery, all as
provided in "The Exchange Offer--Procedures for Tendering Old Capital
Securities" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice
of Guaranteed Delivery. For Old Capital Securities to be properly tendered
pursuant to the guaranteed delivery procedure, the Exchange Agent must
receive a Notice of Guaranteed Delivery on or prior to the Expiration Date.
As used herein, "Eligible Institution" means a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act as "an eligible guarantor
institution," including (as such terms are defined therein) (i) a bank;
(ii) a broker, dealer, municipal securities broker or dealer or government
securities broker or dealer; (iii) a credit union; (iv) a national
securities exchange, registered securities association or clearing agency;
or (v) a savings association that is a participant in a securities transfer
association.
-9-
<PAGE>
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE
TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY
SERVICE IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY ON OR PRIOR TO THE EXPIRATION DATE.
Neither the Corporation nor the Issuer Trust will accept any
alternative, conditional or contingent tenders. Each tendering holder, by
execution of a Letter of Transmittal (or a facsimile thereof), waives any
right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered holder
(which term, for purposes of this document, shall include any
participant in DTC whose name appears on a security position listing
as the owner of the Old Capital Securities) of Old Capital Securities
tendered herewith, unless such holder has completed either the box
entitled "Special Issuance Instructions" or the box entitled "Special
Delivery Instructions" above, or
(ii) such Old Capital Securities are tendered for the account of
a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities" is inadequate, the Certificate
numbers and/or the Liquidation Amount of Old Capital Securities and any
other required information should be listed on a separate signed schedule
which is attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the Liquidation Amount of $100,000 (100
Old Capital Securities) and integral multiples of $1,000 in excess thereof,
provided that if any Old Capital Securities are tendered for exchange in
part, the untendered Liquidation Amount thereof must also be $100,000 (100
Old Capital Securities) or any integral multiple of $1,000 in excess
thereof. If less than all the Old Capital Securities evidenced by any
Certificate submitted are to be tendered, fill in the Liquidation Amount of
Old Capital Securities that are to be tendered in the box entitled
"Liquidation Amount of Old Capital Securities Tendered (If Less than All
are Tendered)." In such case, a new Certificate for the remainder of the
Old Capital Securities that were evidenced by the old Certificate will be
sent to the holder of the Old Capital Securities promptly after the
Expiration Date unless the appropriate boxes on this Letter of Transmittal
are completed. All Old Capital Securities represented by Certificates
delivered to the Exchange Agent will be deemed to have been tendered unless
otherwise indicated as provided herein.
Except as otherwise provided herein, tenders of Old Capital Securities
may be withdrawn at any time on or prior to the Expiration Date. In order
for a withdrawal to be effective, a written, telegraphic, telex or
facsimile transmission of such notice of withdrawal must be received by the
Exchange Agent at its address set forth above or in the Prospectus on or
prior to the Expiration Date. Any such notice of withdrawal must specify
the name of the person who tendered the Old Capital Securities to be
withdrawn, the aggregate Liquidation Amount of Old Capital Securities to be
withdrawn, and (if Certificates for Old Capital Securities have been
tendered) the name of the registered holder of the Old Capital Securities
as set forth on the Certificates for the Old Capital Securities, if
different from that of the person who tendered such Old Capital Securities.
If Certificates for the Old Capital
-10-
<PAGE>
Securities have been delivered or otherwise identified to the Exchange
Agent, then prior to the physical release of such Certificates for the Old
Capital Securities, the tendering holder must submit the serial numbers
shown on the particular Certificates for the Old Capital Securities to be
withdrawn and the signature on the notice of withdrawal must be guaranteed
by an Eligible Institution, except in the case of Old Capital Securities
tendered for the account of an Eligible Institution. If Old Capital
Securities have been tendered pursuant to the procedures for book-entry
transfer set forth under "The Exchange Offer--Procedures for Tendering Old
Capital Securities," the notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawal of Old
Capital Securities, in which case a notice of withdrawal will be effective
if delivered to the Exchange Agent by written, telegraphic, telex or
facsimile transmission on or prior to the Expiration Date. Withdrawals of
tenders of Old Capital Securities may not be rescinded and Old Capital
Securities properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be retendered at any subsequent
time on or prior to the Expiration Date by following any of the procedures
described in the Prospectus under "The Exchange Offer--Procedures for
Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the
Corporation, in its sole discretion, whose determination shall be final and
binding on all parties. The Corporation and the Issuer Trust, any
affiliates or assigns of the Corporation and the Issuer Trust, the Exchange
Agent or any other person shall not be under any duty to give any
notification of any irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification. Any Old Capital
Securities that have been tendered but which are withdrawn on or prior to
the Expiration Date will be returned to the holder thereof without cost to
such holder promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the registered
holder of the Old Capital Securities tendered hereby, the signature must
correspond exactly with the name as written on the face of the Certificates
without alteration, enlargement or any change whatsoever.
If any of the Old Capital Securities tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Letter
of Transmittal.
If any tendered Old Capital Securities are registered in different
names on several Certificates, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal (or facsimiles thereof) as
there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-
fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing and
must submit proper evidence satisfactory to the Corporation, in its sole
discretion, of such persons' authority to so act.
When this Letter of Transmittal is signed by the registered holder of
the Old Capital Securities listed and transmitted hereby, no endorsement of
Certificates or separate bond powers are required unless New Capital
Securities are to be issued in the name of a person other than the
registered holder. Signatures on such Certificates or bond powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder of the Old Capital Securities listed, the Certificates
must be endorsed or accompanied by appropriate bond powers, signed exactly
as the name of the registered holder appears on the Certificates, and also
must be accompanied by such opinions of counsel, certifications and other
information as the Corporation, the Old Issuer Trust or the Exchange Agent
may require in accordance with the restrictions on transfer applicable to
the Old Capital Securities. Signatures on such Certificates or bond powers
must be guaranteed by an Eligible Institution.
-11-
<PAGE>
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Capital
Securities are to be issued in the name of a person other than the
registered holder, or if New Capital Securities are to be sent to someone
other than the registered holder or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be
completed. Certificates for Old Capital Securities not exchanged will be
returned by mail or, if tendered by book-entry transfer, by crediting the
account indicated above maintained at DTC unless the appropriate boxes on
this Letter of Transmittal are completed. See Instruction 4.
7. IRREGULARITIES. The Corporation will determine, in its sole
discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Old Capital Securities, which determination shall be final and
binding on all parties. The Corporation reserves the absolute right to
reject any and all tenders determined by it not to be in proper form or the
acceptance of which, or exchange for, may, in the view of counsel to the
Corporation, be unlawful. The Corporation also reserves the absolute right,
subject to applicable law, to waive any of the conditions of the Exchange
Offer set forth in the Prospectus under "The Exchange Offer--Certain
Conditions to the Exchange Offer" or any conditions or irregularity in any
tender of Old Capital Securities of any particular holder whether or not
similar conditions or irregularities are waived in the case of other
holders. The Corporation's interpretation of the terms and conditions of
the Exchange Offer (including this Letter of Transmittal and the
instructions hereto) will be final and binding. No tender of Old Capital
Securities will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived.
Neither the Corporation, the Issuer Trust or the Exchange Agent, any
affiliates or assigns of the Corporation, the Issuer Trust or the Exchange
Agent, nor any other person shall be under any duty to give notification of
any irregularities in tenders or incur any liability for failure to give
such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Exchange Agent
at its address and telephone number set forth on the front of this Letter
of Transmittal. Additional copies of the Prospectus, the Notice of
Guaranteed Delivery and the Letter of Transmittal may be obtained from the
Exchange Agent or from your broker, dealer, commercial bank, trust company
or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal
income tax law, a holder whose tendered Old Capital Securities are accepted
for exchange is required to provide the Exchange Agent with such holder's
correct taxpayer identification number ("TIN") on the Substitute Form W-9
below. If the Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service (the "IRS") may subject the holder or other payee
to a $50 penalty. In addition, payments to such holders or other payees
with respect to Old Capital Securities exchanged pursuant to the Exchange
Offer may be subject to 31% backup withholding.
The box in Part 3 of the Substitute Form W-9 may be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is
checked, the holder or other payee must also complete the Certificate of
Awaiting Taxpayer Identification Number below in order to avoid backup
withholding. Notwithstanding that the box in Part 3 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the
Exchange Agent will withhold 31% of all payments made prior to the time a
properly certified TIN is provided to the Exchange Agent. The Exchange
Agent will retain such amounts withheld during the 60 day period following
the date of the Substitute Form W-9. If the holder furnishes the Exchange
Agent with its TIN within 60 days after the date of the Substitute Form W-
9, the amounts retained during the 60-day period will be remitted to the
holder and no further amounts shall be retained or withheld from payments
made to the holder thereafter. If, however, the holder has not provided the
Exchange Agent with its TIN within such 60-day period, amounts withheld
will be remitted to the IRS as backup withholding. In addition, 31% of all
payments made thereafter will be withheld and remitted to the IRS until a
correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the registered
owner of the Old Capital Securities or of the last transferee appearing on
the transfers attached to, or endorsed on, the Old Capital Securities. If
the Old Capital Securities are registered in
-12-
<PAGE>
more than one name or are not in the name of the actual owner, consult the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which number to report.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these
backup withholding and reporting requirements. Such holders should
nevertheless complete the attached Substitute Form W-9 below, and write
"exempt" on the face thereof, to avoid possible erroneous backup
withholding. A foreign person may qualify as an exempt recipient by
submitting a properly completed IRS Form W-8, signed under penalties of
perjury, attesting to that holder's exempt status. Please consult the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which holders are exempt
from backup withholding.
Backup withholding is not an additional U.S. Federal income tax.
Rather, the U.S. Federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificates
representing Old Capital Securities have been lost, destroyed or stolen,
the holder should promptly notify the Exchange Agent. The holder will then
be instructed as to the steps that must be taken in order to replace the
Certificates. This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificates have been followed.
11. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Capital Securities are to be
delivered to, or are to be issued in the name of, any person other than the
registered holder of the Old Capital Securities tendered, or if a transfer
tax is imposed for any reason other than the exchange of Old Capital
Securities in connection with the Exchange Offer, then the amount of any
such transfer tax (whether imposed on the registered holder or any other
persons) will be payable by the tendering holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with the
Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE THEREOF) AND
ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR
PRIOR TO THE EXPIRATION DATE.
-13-
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
PAYER'S NAME: WILMINGTON TRUST COMPANY
- --------------------------------------------------------------------------------
<S> <C> <C>
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE BOX AT SOCIAL SECURITY NUMBER OR
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. EMPLOYER IDENTIFICATION NUMBER
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
PART 2--CERTIFICATION--UNDER PENALTIES OF PERJURY, I CERTIFY THAT:
PAYER'S REQUEST FOR
TAXPAYER (1) THE NUMBER SHOWN ON THIS FORM IS MY CORRECT TAXPAYER IDENTIFICATION NUMBER (OR I AM WAITING FOR A
IDENTIFICATION NUMBER TO BE ISSUED TO ME) AND
NUMBER (TIN)
(2) I AM NOT SUBJECT TO BACKUP WITHHOLDING EITHER BECAUSE: (A) I AM EXEMPT FROM BACKUP WITHHOLDING, OR
(B) I HAVE NOT BEEN NOTIFIED BY THE INTERNAL REVENUE SERVICE (THE "IRS") THAT I AM SUBJECT TO
BACKUP WITHHOLDING AS A RESULT OF A FAILURE TO REPORT ALL INTEREST OR DIVIDENDS, OR (C) THE IRS
HAS NOTIFIED ME THAT I AM NO LONGER SUBJECT TO BACKUP WITHHOLDING.
CERTIFICATION INSTRUCTIONS--YOU MUST CROSS OUT ITEM (2) ABOVE IF YOU PART 3--
HAVE BEEN NOTIFIED BY THE IRS THAT YOU ARE CURRENTLY SUBJECT TO BACKUP
WITHHOLDING BECAUSE OF UNDERREPORTING INTEREST OR DIVIDENDS ON YOUR TAX AWAITING TIN [ ]
RETURN. HOWEVER, IF AFTER BEING NOTIFIED BY THE IRS THAT YOU ARE
SUBJECT TO BACKUP WITHHOLDING, YOU RECEIVED ANOTHER NOTIFICATION FROM
THE IRS THAT YOU ARE NO LONGER SUBJECT TO BACKUP WITHHOLDING, DO NOT
CROSS OUT SUCH ITEM (2).
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY
PROVISION OF THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO
AVOID BACKUP WITHHOLDING.
SIGNATURE DATE
-------------------------------------- --------------
NAME (PLEASE PRINT)
---------------------------------------------------
ADDRESS (PLEASE PRINT)
------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE
REVIEW THE ENCLOSED "GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9" FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification
Number has not been issued to me, and either (1) I have mailed or delivered an
application to receive a Taxpayer Identification Number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a Taxpayer Identification Number by the time of payment, 31%
of all reportable payments made to me will be withheld, but that such amounts
will be refunded to me if I then provide a Taxpayer Identification Number within
sixty (60) days.
Signature Date
------------------------------------- -----------------------
Name (Please Print)
--------------------------------------------------------
Address (Please Print)
-----------------------------------------------------
-14-
<PAGE>
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
7.90% CAPITAL SECURITIES, SERIES A1
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
BT CAPITAL TRUST A
This Notice of Guaranteed Delivery, or one substantially equivalent to
this form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for BT Capital Trust A's 7.90% Capital Securities, Series A1 (the
"Old Capital Securities") are not immediately available, (ii) Old Capital
Securities, the Letter of Transmittal and all other required documents cannot be
delivered to Wilmington Trust Company (the "Exchange Agent") on or prior to the
Expiration Date (as defined in the Prospectus referred to below) or (iii) the
procedures for delivery by book-entry transfer cannot be completed on or prior
to the Expiration Date. This Notice of Guaranteed Delivery may be delivered by
hand, overnight courier or mail, or transmitted by facsimile transmission, to
the Exchange Agent on or prior to the Expiration Date. See "The Exchange Offer--
Procedures for Tendering Old Capital Securities" in the Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WILMINGTON TRUST COMPANY
BY MAIL/OVERNIGHT DELIVERY: BY HAND:
Wilmington Trust Company Wilmington Trust Company
1100 North Market Street 1105 North Market Street, 1st Floor
Wilmington, Delaware 19890-0001 Wilmington, Delaware 19890
Attn: Jill Rylee Attn: Corporate Trust Operations
FACSIMILE TRANSMISSIONS:
(302) 651-1079
TO CONFIRM BY TELEPHONE OR FOR INFORMATION:
(302) 651-8869
Jill Rylee
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA FACSIMILE
TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Bankers Trust New York Corporation,
a New York corporation, upon the terms and subject to the conditions set forth
in the Prospectus dated March __, 1997 (as the same may be amended or
supplemented from time to time, the "Prospectus"), and the related Letter of
Transmittal (which together constitute the "Exchange Offer"), receipt of which
is hereby acknowledged, the aggregate liquidation amount of Old Capital
Securities set forth below pursuant to the guaranteed delivery procedures set
forth in the Prospectus under the caption "The Exchange Offer--Procedures for
Tendering Old Capital Securities."
Aggregate Liquidation Name of Registered Holder:
Amount Tendered:
----------- -----------------------------------------
Certificate Nos. Address:
(if available): ---------------------------------
------------ -----------------------------------------
Area Code and Telephone Number:
-----------------------------------------
If Old Capital Securities will be tendered by book-entry transfer, provide the
following information:
Signature:
-------------------------------------------------------------------
DTC Account Number:
----------------------------------------------------------
Date:
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THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
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<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker or dealer or government securities
broker or dealer; (iii) a credit union; (iv) a national securities exchange,
registered securities association or clearing agency; or (v) a savings
association that is a participant in a securities transfer association
recognized program (each of the foregoing being referred to as an "Eligible
Institution"), hereby guarantees to deliver to the Exchange Agent, at one of its
addresses set forth above, either the Old Capital Securities tendered hereby in
proper form for transfer, or confirmation of the book-entry transfer of such Old
Capital Securities to the Exchange Agent's account at The Depository Trust
Company, pursuant to the procedures for book-entry transfer set forth in the
Prospectus, in either case together with one or more properly completed and duly
executed Letters of Transmittal (or facsimiles thereof) and any other required
documents within three business days after the date of execution of this Notice
of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letters of
Transmittal and the Old Capital Securities tendered hereby to the Exchange Agent
within the time period set forth above and that failure to do so could result in
a financial loss to the undersigned.
Name of Firm:
---------------------------------------------------------------
Authorized Signature:
-------------------------------------------------------
(Title)
Address:
--------------------------------------------------------------------
- ----------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
---------------------------------------------
Date:
----------------------------------------------------------------------
NOTE: DO NOT SEND OLD CAPITAL SECURITIES WITH THIS NOTICE OF GUARANTEED
DELIVERY. ACTUAL SURRENDER OF OLD CAPITAL SECURITIES MUST BE MADE
PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY
EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
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