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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
October 1, 1997
BANKERS TRUST NEW YORK CORPORATION
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(Exact Name of Registrant as Specified in Charter)
NEW YORK NO. 1-5920 NO. 13-6180473
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
130 LIBERTY STREET
NEW YORK, NEW YORK 10006
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 250-2500
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
On October 1, 1997, Bankers Trust New York Corporation, a New York
corporation (the "Corporation"), entered into a Distribution Agreement, dated
October 1, 1997 (the "Distribution Agreement"), between the Corporation and
Lehman Brothers Inc., BT Alex. Brown Incorporated, Goldman, Sachs & Co., Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley
& Co. Incorporated, Salomon Brothers Inc and Smith Barney Inc., pursuant to
which the Corporation may offer from time to time its Senior Medium-Term Notes,
Series A, and Subordinated Medium-Term Notes, Series A (collectively, the
"Notes"), at an aggregate initial offering price not to exceed
U.S.$2,000,000,000, or the equivalent thereof in foreign currencies or currency
units.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
1.1 Distribution Agreement.
4.1 Form of Senior Fixed Rate Note.
4.2 Form of Senior Floating Rate Note.
4.3 Form of Subordinated Fixed Rate Note.
4.4 Form of Subordinated Floating Rate Note.
4.5 Second Supplemental Indenture, dated as of October 1, 1997, between
the Corporation and the Chase Manhattan Bank.
4.6 Second Supplemental Indenture, dated as of October 1, 1997, between
the Corporation and Marine Midland Bank.
8.1 Opinion of Jules S. Goodman, Esq.
23.1 Consent of Jules S. Goodman, Esq. (included in exhibit 8.1).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BANKERS TRUST NEW YORK CORPORATION
Date: October 1, 1997 By: /s/ James T. Byrne, Jr.
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Name: James T. Byrne, Jr.
Title: Secretary
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EXHIBIT 1.1
U.S. $2,000,000,000
BANKERS TRUST NEW YORK CORPORATION
SENIOR MEDIUM-TERM NOTES, SERIES A
SUBORDINATED MEDIUM-TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
October 1, 1997
Lehman Brothers Inc. Morgan Stanley & Co. Incorporated
3 World Financial Center 1585 Broadway
New York, New York 10285 New York, New York 10036
BT Alex. Brown Incorporated Salomon Brothers Inc
130 Liberty Street Seven World Trade Center
New York, New York 10006 New York, New York 10048
Goldman, Sachs & Co. Smith Barney Inc.
85 Broad Street 390 Greenwich Street
New York, New York 10004 New York, New York 10013
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
Bankers Trust New York Corporation, a New York corporation (the
"Corporation"), confirms its agreement with each of you (individually, an
"Agent" and collectively, the "Agents") with respect to the issuance and sale by
the Corporation of up to an aggregate of U.S.$2,000,000,000 (or its equivalent
in any other currency or currency unit) in initial offering price of its Senior
Medium-Term Notes, Series A (the "Senior Notes"), and Subordinated Medium-Term
Notes, Series A (the "Subordinated Notes" and, collectively with the Senior
Notes, the "Notes). The Senior Notes are to be issued from time to time pursuant
to an Indenture, dated as of November 1, 1991, between the Corporation and The
Chase Manhattan Bank (formerly The Chase Manhattan Bank (National Association)),
as trustee (the "Senior Trustee"), as supplemented by the First Supplemental
Indenture, dated as of September 1, 1993, and the Second Supplemental Indenture,
dated as of October 1,
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1997, thereto (as so supplemented and as further supplemented or amended from
time to time, the "Senior Indenture"). The Subordinated Notes are to be issued
from time to time pursuant to an Indenture, dated as of April 1, 1992, between
the Corporation and Marine Midland Bank (formerly Marine Midland Bank, N.A.), as
trustee (the "Subordinated Trustee", and together with the Senior Trustee, the
"Trustees"), as supplemented by the First Supplemental Indenture, dated as of
January 15, 1993, and the Second Supplemental Indenture, dated as of October 1,
1997, thereto (as so supplemented and as further supplemented or amended from
time to time, the "Subordinated Indenture," and together with the Senior
Indenture, the "Indentures"). The Indenture pursuant to which any particular
Notes are issued is hereinafter referred to as the "Relevant Indenture," and the
Trustee under the Relevant Indenture is hereinafter referred to as the "Relevant
Trustee."
The Notes shall have the maturity ranges, interest rates or interest rate
formulas, specified currencies, issue prices, redemption and repayment
provisions, subordination provisions (if any) and other terms set forth in the
Prospectus referred to below, as it may be amended or supplemented from time to
time, including the supplement thereto setting forth the interest rate, maturity
and other specific terms of any particular Note (each, a "Pricing Supplement").
The Notes will be issued, and the terms thereof established, from time to time,
by the Corporation in accordance with the Relevant Indenture and the Procedures
referred to below. This Agreement shall apply only to sales of the Notes and not
to sales of any other securities or evidences of indebtedness of the Corporation
and only to sales made on the specific terms set forth herein.
Subject to the terms and conditions stated herein and to the reservation by
the Corporation of the right to sell its Notes directly on its own behalf and to
appoint one or more agents in addition to the Agents appointed hereunder, the
Corporation hereby (i) appoints each of the Agents as the agent of the
Corporation for the purpose of soliciting and receiving offers to purchase Notes
from the Corporation, and (ii) agrees that whenever the Corporation determines
to sell Notes directly to an Agent as principal it will enter into a separate
agreement (each a "Purchase Agreement"). Each such Purchase Agreement, whether
oral (and confirmed in writing, which may be by facsimile transmission) or in
writing, shall address such information with respect to such sale as is
specified in Exhibit C hereto (as applicable), in accordance with Section 2(e)
hereof.
The Corporation has filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations of the Commission (the "Rules and
Regulations") thereunder a registration statement on Form S-3 (No. 333-32909)
relating to the Notes and certain other securities, and such registration
statement has become effective under the Securities Act. The Indentures have
been qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). As used in this Agreement, (i) "Registration Statement" means
such registration statement on Form S-3 when it became effective under the
Securities Act, and
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as from time to time amended or supplemented; (ii) "Basic Prospectus" means the
prospectus relating to the Notes (including all documents incorporated therein
by reference) included in the Registration Statement; and (iii) "Prospectus"
means the Basic Prospectus together with any amendments or supplements thereto
relating to the Notes (including, with respect to any Notes, the Pricing
Supplement specifically relating to such Notes) as filed with the Commission
pursuant to Rule 424(b) under the Securities Act. Any reference in this
Agreement to any amendment or supplement to the Prospectus shall be deemed to
include any materials filed with the Commission after the date of the Prospectus
and incorporated by reference in the Prospectus. Any reference in this Agreement
to any amendment or supplement to the Registration Statement shall be deemed to
include the filing of any Annual Report on Form 10-K of the Corporation filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the effective date of the Registration
Statement which is incorporated by reference in the Registration Statement.
As used in this Agreement, "Marketing Period" means each period during
which, in the opinion of counsel for the Agents, a prospectus relating to the
Notes is required to be delivered under the Securities Act.
SECTION 1. REPRESENTATIONS AND WARRANTIES
The Corporation represents and warrants to each Agent as of the date
hereof, as of the Closing Date (as defined below) and as of the times referred
to in Sections 6(a), 6(b) and 6(c) hereof (the Closing Date and each such time
being referred to in this Agreement as a "Representation Date") that (i) each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable Rules
and Regulations thereunder; (ii) each part of the Registration Statement
relating to the Notes filed with the Commission pursuant to the Securities Act,
when such part became effective, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (iii) each preliminary
prospectus, if any, relating to the Notes filed pursuant to Rule 424 under the
Securities Act complied when so filed in all material respects with the
Securities Act and the applicable Rules and Regulations thereunder; (iv) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply as of the applicable Representation
Date and, in the case of a representation made with respect to any particular
Notes, at all times during the Marketing Period relating to such Notes in all
material respects with the Securities Act and the applicable Rules and
Regulations thereunder; (v) the Registration Statement and the Prospectus do not
contain and, as amended or supplemented, if applicable, will not contain as of
the applicable Representation Date and, in the case of a representation made
with respect to any particular Notes, at all times during the Marketing Period
relating to such Notes any untrue statement of a material fact or omit
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to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; (vi)
the Corporation has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the State of New York, and is duly registered
as a bank holding company under the Bank Holding Company Act of 1956, as amended
(the "BHC Act"); (vii) the Corporation has all requisite corporate power and
authority to own its properties and conduct its business as described in the
Prospectus; and (viii) the issuance and sale of the Notes and the execution,
delivery and performance by the Corporation of this Agreement will not
contravene any provisions of applicable Federal or New York law or regulation,
the certificate of incorporation or by-laws of the Corporation, or any agreement
or other instrument binding upon the Corporation, which contravention, in any
such case, would have a material adverse effect on the Corporation; provided,
however, that the foregoing representations and warranties do not apply to
statements in or omissions from the Registration Statement, any preliminary
prospectus or the Prospectus based upon information furnished to the Corporation
in writing by any Agent expressly for use therein or to any statements in or
omissions from the statement of eligibility and qualification on Form T-1 (the
"Form T-1") of either Trustee under the Trust Indenture Act.
SECTION 2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL
(a) Appointment. Subject to the terms and conditions stated herein, the
Corporation hereby appoints each Agent as the agent of the Corporation for the
purpose of soliciting or receiving offers to purchase the Notes from the
Corporation by others. On the basis of the representations and warranties
contained herein, but subject to the terms and conditions herein set forth, each
Agent agrees, as the agent of the Corporation, to use its reasonable efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus. The Corporation expressly reserves the right to
sell Notes directly to investors and to enter into other agreements with respect
to sales of Notes, provided that any such agreement shall be on terms that are
substantially identical to the terms of this Agreement. Each Agent may also
purchase Notes from the Corporation as principal for purposes of resale, as more
fully described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Corporation reserves the right, in its
sole discretion, to suspend or terminate solicitation of offers to purchase the
Notes commencing at any time for any period of time or indefinitely. Upon
receipt of notice from the Corporation of any such suspension or termination,
each Agent shall suspend its solicitation of offers to purchase Notes until such
time as the Corporation shall have advised such Agent that such solicitation may
be resumed and, in the case of any such notice of suspension or termination
delivered pursuant to Section 3(b) hereof, furnished it with the amendment or
supplement to the Registration Statement or the Prospectus, as the case may be,
contemplated by Section 3(b).
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(c) Agent's Commission. Promptly upon the closing of the sale of any Notes
sold by the Corporation as a result of a solicitation made by or offer to
purchase received by an Agent, the Corporation agrees to pay such Agent a
commission in accordance with the schedule set forth in Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to solicit offers to
purchase the Notes only in such denominations as are specified in the Prospectus
at such purchase price as shall be specified by the Corporation. Each Agent
shall communicate to the Corporation, orally or in writing, each reasonable
offer to purchase Notes received by it as an Agent. The Corporation shall have
the sole right to accept offers to purchase the Notes and may reject any such
offer in whole or in part. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Corporation, to reject any offer to
purchase the Notes received by it, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein.
No Note which the Corporation has agreed to sell pursuant to this Agreement
shall be deemed to have been purchased and paid for, or sold by the Corporation,
until such Note shall have been delivered to the purchaser thereof against
payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as principal,
for resale to one or more investors or to another broker (acting as principal
for purposes of resale), shall be made in accordance with the terms of this
Agreement and a Purchase Agreement, which may be oral (and confirmed in writing
by such Agent to the Corporation, which may be by facsimile transmission) or in
writing, which will provide for the sale of such Notes to, and the purchase
thereof by, such Agent. A Purchase Agreement may also specify certain provisions
relating to the reoffering of such Notes by such Agent. The commitment of any
Agent to purchase Notes from the Corporation as principal shall be deemed to
have been made on the basis of the representations and warranties of the
Corporation herein contained and shall be subject to the terms and conditions
herein set forth. Each Purchase Agreement shall specify the principal amount and
terms of the Notes to be purchased by an Agent, the time and date (each such
time and date being referred to herein as a "Time of Delivery") and place of
delivery of, and payment for, such Notes and such other information (as
applicable) as is set forth in Exhibit C hereto. The Corporation agrees that if
any Agent purchases Notes as principal for resale such Agent shall receive such
compensation, in the form of a discount or otherwise, as shall be indicated in
the applicable Purchase Agreement or, if no compensation is indicated therein, a
commission in accordance with Exhibit A hereto. Any Agent may utilize a selling
or dealer group in connection with the resale of such Notes. In addition, any
Agent may offer the Notes it has purchased as principal to other dealers. Such
Purchase Agreement shall also specify any requirements for delivery of opinions
of counsel, accountant's letters and officers' certificates pursuant to Section
5 hereof.
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(f) Administrative Procedures. Administrative procedures respecting the
sale of Notes (the "Procedures") are set forth in Exhibit B hereto and may be
amended in writing from time to time by the Agents and the Corporation. Each
Agent and the Corporation agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Procedures shall apply to all transactions contemplated
hereunder including sales of Notes to any Agent as principal pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of the Corporation, 130
Liberty Street, New York, New York 10006, not later than 10:00 A.M., New York
City time, on the date of this Agreement or at such later time as may be
mutually agreed upon by the Corporation and the Agents, which in no event shall
be later than the time at which the Agents, with the prior consent of the
Corporation, commence solicitation of offers to purchase Notes hereunder (the
"Closing Date").
SECTION 3. COVENANTS OF THE CORPORATION
The Corporation covenants and agrees to furnish promptly to the Agents a
copy of the Registration Statement as originally filed and each amendment or
supplement thereto; and in connection with each offering of Notes, the
Corporation further agrees, except during any period during which solicitation
is suspended under Section 2(b) hereof:
(a) Delivery of Other Documents. To deliver promptly to the Agents, and in
such number as they may reasonably request, each of the following documents: (i)
conformed copies of the Registration Statement (excluding exhibits other than
the computation of the ratio of earnings to fixed charges, each Indenture, this
Agreement and such other exhibits as the Agents may reasonably request), (ii)
the Basic Prospectus, (iii) the Prospectus and (iv) any documents incorporated
by reference in the Prospectus.
(b) Revisions to Prospectus--Material Changes. If, during any Marketing
Period, any event occurs as a result of which the Prospectus would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading, or if it is necessary at any time
to amend the Prospectus to comply with the Securities Act, to notify the Agents
promptly, in writing, to suspend solicitation of purchases of the Notes; and if
the Corporation shall decide to amend or supplement the Registration Statement
or the Prospectus, promptly to advise the Agents by telephone (with confirmation
in writing) and promptly to prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance; provided, however, that if, in response to any such
notice from the Corporation during the period referred to above, any Agent shall
inform the Corporation that it holds any Notes which it has purchased directly
from the Corporation as principal with the
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intention of reselling them, the Corporation shall promptly prepare and timely
file with the Commission any amendment or supplement to the Registration
Statement or the Prospectus that may, in the judgment of the Corporation or the
reasonable judgment of the Agents, be required by the Securities Act or
requested by the Commission, provided that the applicable Agent shall reimburse
the Corporation for all direct or indirect costs incurred by the Corporation in
preparing and filing any such amendment or supplement, other than any document
(or any amendment to any previously filed document) otherwise required to be
filed by the Corporation pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, if such notification is received by the Corporation more than 40
days following the date on which such Agent agreed to purchase such Note from
the Corporation.
(c) Commission Filings. To timely file with the Commission during any
Marketing Period, all documents (and any amendments to previously filed
documents) required to be filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(d) Copies of Filings with Commission. Promptly after filing with the
Commission, during any Marketing Period, (i) any amendment or supplement to the
Registration Statement, (ii) any amendment or supplement to the Prospectus or
(iii) any document incorporated by reference in any of the foregoing or any
amendment of or supplement to any such incorporated document, to furnish a copy
thereof to the Agents, provided that if any such amendment, supplement or
incorporated document relates specifically to the terms and conditions of the
Notes or the offering thereof, the Corporation shall provide a copy of such
amendment, supplement or document to the Agents prior to filing it with the
Commission.
(e) Notice to Agent of Certain Events. To advise the Agents promptly (i)
when any post-effective amendment to the Registration Statement becomes
effective (provided that the term "amendment" shall include, for purposes of
this clause (i), only post-effective amendments to the Registration Statement
filed under the Securities Act, and shall not include any Annual Report on Form
10-K or any other document incorporated by reference therein or any other
supplement thereto) becomes effective, (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or any
part thereof or any order directed to the Prospectus or any document
incorporated therein by reference, the initiation or threat of any stop order
proceeding by the Commission or the initiation of any other proceeding in a
court of law by the Commission, any other governmental or regulatory authority
or any third party challenging the accuracy or adequacy of any document
incorporated by reference in the Prospectus, which challenge, in the reasonable
judgment of the Corporation, is reasonably likely to materially and adversely
affect the ability of the Agents to offer or sell the Notes in accordance with
this Agreement, (iii) of receipt by the Corporation of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threat of any
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proceeding for that purpose, (iv) of any downgrading in the rating of the Notes
or any other debt securities of the Corporation by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act), or any public announcement of any such organization that it
has under surveillance or review its rating of any debt securities of the
Corporation (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading of such rating) as soon
as the Corporation learns of any such downgrading or public announcement, and
(v) of the happening of any event which makes untrue any statement of a material
fact made in the Registration Statement or the Prospectus or which requires the
making of a change in the Registration Statement or the Prospectus in order to
make any material statement therein not misleading.
(f) Stop Orders. If, during any Marketing Period, the Commission shall
issue a stop order suspending the effectiveness of the Registration Statement,
to make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
(g) Earnings Statements. As soon as practicable, but not later than 18
months, after the date of each acceptance by the Corporation of an offer to
purchase Notes hereunder, to make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning after the
later of (i) the effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of such acceptance and (iii) the
date of the Corporation's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such acceptance, which will satisfy the
provisions of Section 11(a) of the Securities Act (including, at the option of
the Corporation, Rule 158 under the Securities Act);
(h) Copies of Reports, Releases and Financial Statements. So long as any of
the Notes are outstanding, to furnish to the Agents upon request, not later than
the time the Corporation makes the same available to others, copies of all
public reports or releases and all reports and financial statements furnished by
the Corporation to any securities exchange on which the Notes are listed
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any Rules and Regulations thereunder.
(i) Blue Sky Qualifications. To endeavor, in cooperation with the Agents,
to qualify the Notes for offering and sale under the securities laws of such
jurisdictions as the Agents may reasonably request, and to maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; and to file such statements and reports as may be required by the
laws of each jurisdiction in which the Notes have been qualified as above
provided; provided, however, that in connection therewith the Corporation shall
not
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be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
(j) Holdback. Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, the Corporation will not offer or
sell, or enter into any agreement to sell, any of its debt securities that are
substantially similar to the Notes that are subject to such Purchase Agreement
with respect to interest rate, interest rate basis and maturity, other than upon
exercise of warrants therefor or upon conversion of convertible securities, in
each case outstanding at the date of such Purchase Agreement, or pursuant to the
Euro Medium-Term Note Program of the Corporation and certain of its subsidiaries
or in any other offering made exclusively outside the United States.
(k) Pricing Supplement. To prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a Pricing Supplement to
such Notes in a form previously approved by the Agents and to file such Pricing
Supplement with the Commission pursuant to Rule 424 under the Securities Act.
SECTION 4. PAYMENT OF EXPENSES
The Corporation will pay:
(i) the costs incident to the authorization, issuance, sale and
delivery of the Notes by the Corporation and any taxes payable in
connection therewith;
(ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement and any amendments and
exhibits thereto;
(iii) the costs incident to the preparation, printing and filing of
any document and any amendments and exhibits thereto required to be filed
by the Corporation under the Exchange Act;
(iv) the costs of distributing the Registration Statement, as
originally filed, and each amendment and post-effective amendment thereof
(including exhibits), and any documents incorporated by reference therein
to the Agents, and of distributing the Basic Prospectus, the Prospectus,
any supplement or amendment to the Prospectus and any documents
incorporated by reference into any of the foregoing documents, in
connection with the offering of the Notes;
(v) the fees and disbursements of each Trustee, any paying agent, any
calculation agent, any exchange rate agent and any other agents appointed
by the Corporation (other than the Agents), and their respective counsel,
in each case to the
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extent the Corporation has agreed to pay such fees and disbursements to any
such Trustee or agent;
(vi) the costs and fees in connection with the listing of the Notes on
any securities exchange;
(vii) the cost and fees in connection with any filings relating to the
Notes with the National Association of Securities Dealers, Inc.;
(viii) the reasonable fees and disbursements of one counsel to the
Agents, subject to any limitation agreed by the Corporation and Lehman
Brothers Inc. prior to the date of this Agreement;
(ix) the fees paid to rating agencies in connection with the rating of
the Notes;
(x) the fees and expenses of qualifying the Notes under the securities
laws of the several jurisdictions as provided in Section 3(i) hereof and of
preparing a Blue Sky Memorandum and a memorandum concerning the legality of
the Notes as an investment (including reasonable fees and disbursements of
one counsel for the Agents in connection therewith);
(xi) all advertising expenses in connection with the offering of the
Notes incurred with the prior consent of the Corporation; and
(xii) all other costs and expenses incident to the performance of the
Corporation's obligations under this Agreement.
SECTION 5. CONDITIONS OF OBLIGATIONS OF AGENTS
The obligation of the Agents, as the agents of the Corporation, under this
Agreement to solicit offers to purchase the Notes, the obligation of any person
who has agreed to purchase Notes to make payment for and take delivery of Notes,
and the obligation of any Agent to purchase Notes pursuant to any Purchase
Agreement, are subject to the accuracy, on each Representation Date, of the
representations and warranties of the Corporation contained herein, to the
accuracy of the statements of the Corporation's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the
Corporation of its obligations hereunder, and to each of the following
additional terms and conditions:
(a) Registration Statement; No Material Adverse Change. The Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to the
Notes shall have been filed with the Commission pursuant to Rule 424(b) under
the Act within the applicable time period prescribed for such filing by the
Rules and Regulations and in
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accordance with Section 3(k) hereof; no stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and there shall
have been no material adverse change (not in the ordinary course of business) in
the financial condition or results of operations of the Corporation and its
subsidiaries, taken as a whole, from that set forth in the Prospectus since the
effective dates as of which information is given therein.
(b) No Suspension of Sale of the Notes. No order suspending the sale of the
Notes in any jurisdiction designated by the Agents pursuant to Section 3(i)
hereof shall have been issued, and no proceeding for that purpose shall have
been initiated or threatened, which order or proceeding would, in the reasonable
judgement of the Agents, materially and adversely affect the ability of the
Agents to offer or sell the Notes in accordance with this Agreement.
(c) Opinion of Corporation's Counsel. At the Closing Date, the Agents shall
have received the opinion, addressed to the Agents and dated the Closing Date,
of Gordon S. Calder, Jr., Esq., Managing Director and Counsel of Bankers Trust
Company and counsel to the Corporation, to the effect that:
(i) the Corporation has been duly incorporated, is an existing
corporation in good standing under the laws of the State of New York, is
duly registered as a bank holding company under the BHC Act, and has all
requisite corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) Bankers Trust Company has been duly incorporated, is validly
existing as a trust company in good standing under the laws of the State of
New York, and has all requisite corporate power and authority to own its
properties and to conduct its business as described in the Prospectus;
(iii) each Indenture has been duly authorized, executed and delivered
by the Corporation, is a valid and binding agreement of the Corporation
enforceable in accordance with its terms, and has been duly qualified under
the Trust Indenture Act;
(iv) the Notes have been duly authorized and, when the terms of the
particular Note and of its issuance and sale have been duly authorized and
established by all necessary corporate action in conformity with the
Relevant Indenture, and such Note has been duly completed, executed,
authenticated and issued in accordance with the Relevant Indenture and
delivered against payment in accordance with this Agreement and any
applicable Purchase Agreement, such Note will constitute a valid and
binding obligation of the Corporation enforceable in accordance with its
terms;
-11-
<PAGE>
(v) this Agreement has been duly authorized, executed and delivered by
the Corporation;
(vi) no consent, approval, authorization or other order of any
governmental or regulatory body is required under Federal or New York law
or regulation for the issuance and the sale of the Notes and the execution,
delivery and performance of this Agreement, except for the order of the
Commission making the Registration Statement effective and except as may be
required under State securities and Blue Sky laws;
(vii) the statements in the Prospectus under the captions "Description
of Notes" and "Description of Offered Securities--Description of Debt
Securities," insofar as such statements constitute a summary of the
documents or proceedings referred to therein, fairly present the matters
referred to therein;
(viii) each part of the Registration Statement, when such part became
effective, and the Prospectus, as of the Closing Date (in each case except
as to financial statements and schedules and other financial data contained
therein, and except as to any Form T-1, as to which such counsel need not
express any opinion), complied as to form in all material respects with the
Securities Act and the applicable Rules and Regulations thereunder; and
each document filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (except as to financial statements and
schedules and other financial data contained therein, as to which such
counsel need not express any opinion) complied when so filed as to form in
all material respects with the Exchange Act and the applicable Rules and
Regulations thereunder; and
(ix) nothing has come to such counsel's attention that has caused him
to believe that, insofar as relevant to the offering of the Notes, any part
of the Registration Statement, when such part became effective (except for
the financial statements and schedules and other financial data and any
statements concerning the tax laws contained therein, and except as to any
Form T-1, as to which such counsel need not express any belief), contained
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (except for the financial
statements and schedules and other financial data and any statements
concerning the tax laws contained therein, as to which such counsel need
not express any belief), as of the Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
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<PAGE>
In rendering such opinion, such counsel may rely as to certain matters
on certificates of responsible officers of the Corporation and other persons
believed by such counsel to be responsible. Referring to clauses (iii), (iv) and
(vi) above, such counsel may make the expression of opinion referred to therein
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. Such counsel may also assume
that (i) at the time of the issuance, sale and delivery of each particular Note
the authorization of the Notes will not have been modified or rescinded since
the date of such opinion and, with respect to each Note, that such Note will
conform to the forms of the Notes examined by such counsel; (ii) at the time of
the issuance, sale and delivery of each particular Note there will not have
occurred any change in law since the date of such opinion affecting the
validity, legally binding character or enforceability of such Note and that the
issuance, sale and delivery of such Note, all of the terms of such Note and the
performance by the Corporation of its obligations thereunder will comply with
applicable law and with each requirement or restriction imposed by any court or
governmental body having jurisdiction over the Corporation and will not result
in a default under or a breach of any agreement or instrument then binding upon
the Corporation; and (iii) with respect to each particular Note that the
inclusion of any alternative or additional terms in such Note that are not
currently specified in the forms of Notes examined by such counsel would not
require the Corporation to obtain any regulatory consent, authorization or
approval or make any regulatory filing in order for the Corporation to issue,
sell and deliver such Note. Such counsel may also note that a judgment for money
in an action based on Notes denominated in foreign currencies or currency units
in a Federal or state court in the United States ordinarily would be enforced in
the United States only in United States dollars, and qualify his opinion with
respect to the resulting limitations on enforcement of such judgments. Further,
such counsel may state that he does not express an opinion as to any law other
than the law of the State of New York and the Federal law of the United States
of America and that he does not express any opinion as to any tax laws. Such
counsel may also take such other exceptions as may be mutually agreed upon by
such counsel and the Agents.
(d) Opinion of Tax Counsel. At the Closing Date, the Agents shall have
received the opinion, addressed to the Agents and dated the Closing Date, of
Jules S. Goodman, Esq., tax counsel for the Corporation, to the effect that the
description contained in the Prospectus Supplement forming a part of the
Prospectus under the heading "United States Taxation," while not purporting to
discuss all possible income tax ramifications of the proposed issuance, is
correct in all material respects.
(e) Officers' Certificate. The Corporation shall have furnished to the
Agents on the Closing Date a certificate, dated the Closing Date and signed by
an officer of the Corporation, to the effect set forth in Section 5(a) and also
to the effect that the representations and warranties of the Corporation in
Section 1 hereof are true and correct in
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<PAGE>
all material respects as of the Closing Date. The officer making such
certificate may rely upon the best of his knowledge as to proceedings pending or
threatened.
(f) Accountants' Letter. The Corporation shall have furnished to the Agents
on the Closing Date a letter of KPMG Peat Marwick LLP, addressed jointly to the
Corporation and the Agents and dated the Closing Date, of the type described in
the American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72, and covering such specified financial statement items and
procedures as the Agents may reasonably request prior to the execution of this
Agreement, and in form and substance satisfactory to the Agents.
(g) Opinion of Counsel to the Agents. At the Closing Date, the Agents shall
have received from White & Case, counsel to the Agents, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale of the
Notes, the Indentures, the Registration Statement, the Prospectus and such other
related matters as the Agents may reasonably require, and the Corporation shall
have furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(h) Additional Conditions. There shall not have occurred (i) any suspension
or material limitation of trading in securities generally on the New York Stock
Exchange, Inc., or on any other stock exchange or automated quotation system on
which the Notes are or are to be listed or to which the Notes have been or are
to be admitted for quotation; (ii) the declaration of a general moratorium on
commercial banking activities in New York by either Federal or New York State
authorities; (iii) any material outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Agents,
impracticable to market the Notes.
SECTION 6. ADDITIONAL COVENANTS OF THE CORPORATION
The Corporation covenants and agrees that:
(a) Acceptance of Offer Affirms Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes shall be deemed to be an
affirmation that the representations and warranties of the Corporation contained
in this Agreement and in any certificate theretofore given to the Agents by the
Corporation pursuant hereto are true and correct at the time of such acceptance,
and an undertaking that such representations and warranties will be true and
correct at the time of delivery to the purchaser or its agent of the Notes
relating to such acceptance as though made at and as of each such time (and such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended or supplemented to each such time).
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<PAGE>
(b) Subsequent Delivery of Officers' Certificates. During each Marketing
Period, each time that the Registration Statement or the Prospectus shall be
amended or supplemented (other than (x) by a Pricing Supplement or an amendment
or supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities of the Notes offered, the
amount of Notes remaining to be sold or similar changes or a change the Agents
deem to be immaterial, (y) any amendment or supplement to the Registration
Statement or Prospectus caused by the filing of a Current Report on Form 8-K
containing only information concerning quarterly earnings which has been
announced to the general public and/or exhibits relating to an offering of
securities other than the Notes, or (z) any amendment or supplement to the
Registration Statement or Prospectus caused by the filing of any other Current
Report on Form 8-K unless the Agents shall reasonably request based on
disclosure included in or omitted from such Report), and each time the
Corporation sells Notes to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of an officers' certificate under this Section
6(b) as a condition to the purchase of Notes pursuant to such Purchase
Agreement, the Corporation shall submit to the Agents (or, in the case of a
purchase by fewer than all the Agents, such Agents) a certificate, as of the
date of such amendment or supplement or the Time of Delivery relating to such
sale, representing that the statements contained in the certificate referred to
in Section 5(e) hereof which was last furnished to the Agents are true and
correct at the time of such amendment or supplement or Time of Delivery, as the
case may be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time).
(c) Subsequent Delivery of Legal Opinions. During each Marketing Period,
each time that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by (x) a Pricing Supplement or an amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities of the Notes offered, the
amount of Notes remaining to be sold or similar changes or a change the Agents
deem to be immaterial, (y) any amendment or supplement to the Registration
Statement or Prospectus caused by the filing of a Current Report on Form 8-K
containing only information concerning quarterly earnings which has been
announced to the general public and/or exhibits relating to an offering of
securities other than the Notes, or (z) any amendment or supplement to the
Registration Statement or Prospectus caused by the filing of any other Current
Report on Form 8-K unless the Agents shall reasonably request based on
disclosure included in or omitted from such Report), and each time the
Corporation sells Notes to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of a legal opinion under this Section 6(c) as a
condition to the purchase of Notes pursuant to such Purchase Agreement, the
Corporation shall, concurrently with such amendment, supplement or the Time of
Delivery relating to such sale, furnish the Agents (or, in the case of a
purchase by fewer than all the Agents, such Agents) with a written opinion of
the counsel of the Corporation and of tax counsel of the Corporation, each
addressed to
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<PAGE>
the Agents and dated the date of delivery of such opinion to the same effect as
the opinions referred to in Sections 5(c) and 5(d) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
or supplemented to the time of delivery of such opinion; provided, however, that
in lieu of such opinion, either counsel may furnish the Agents (or, in the case
of a purchase by fewer than all the Agents, such Agents) with a letter to the
effect that such Agents may rely on such prior opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such prior opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. During each Marketing
Period, each time that the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information (other than
any amendment or supplement to the Registration Statement or Prospectus caused
by the filing of a Current Report on Form 8-K containing only information
concerning quarterly earnings which has been announced to the general public)
and each time the Corporation sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of a letter under this
Section 6(d) as a condition to the Purchase of Notes pursuant to such Purchase
Agreement, the Corporation shall cause the independent accountants of the
Corporation to furnish the Agents (or, in the case of a purchase by fewer than
all the Agents, such Agents), reasonably promptly following such amendment or
supplement or concurrently with the Time of Delivery relating to such sale, with
a letter, addressed jointly to the Corporation and the Agents (or, in the case
of a purchase by fewer than all the Agents, such Agents) and dated the date of
delivery of such letter, in form and substance reasonably satisfactory to such
Agents, of the same tenor as the letter referred to in Section 5(f) hereof with
respect to the amended or supplemented financial information included or
incorporated by reference by such amendment or supplement or the financial
information specified in such Purchase Agreement, with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Corporation; provided, however, that
if the Registration Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal quarter, such
accountants may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless there is contained
therein any other accounting, financial or statistical information that, in the
reasonable judgment of the Agents (or, in the case of a purchase by fewer than
all the Agents, such Agents), should be covered by such letter, in which event
such letter shall also cover such other information.
(e) Opinion on Settlement Date. On any settlement date for the sale of
Notes, the Corporation shall, if requested by the Agent that solicited or
received the offer to purchase any Notes being delivered on such settlement date
and agreed to by the Corporation when it accepts such offer, furnish such Agent
with written opinions of counsel and tax counsel of the Corporation, dated such
settlement date to the effect set forth in Sections 5(d) and 5(e)
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<PAGE>
hereof, but modified, as necessary, to relate to the Prospectus relating to the
Notes to be delivered on such settlement date; provided, however, that in lieu
of such opinion, either such counsel may furnish such Agent with a letter to the
effect that such the Agent may rely on such prior opinion to the same extent as
though it was dated such settlement date (except that statements in such prior
opinion will be deemed to relate to the Registration Statement and such
Prospectus as amended or supplemented to the time of delivery of such letter
authorizing reliance).
SECTION 7. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification of Agent. The Corporation agrees to indemnify and hold
harmless each Agent and each person, if any, who controls such Agent 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 and liabilities caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any preliminary prospectus or the Prospectus as
amended or supplemented, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in the Form T-1 relating to either
Indenture or based upon and in conformity with information furnished in writing
to the Corporation by an Agent expressly for use therein; provided that the
foregoing indemnity agreement shall not inure to the benefit of any Agent from
whom the person asserting any such losses, claims, damages or liabilities
purchased Notes, or any person controlling such Agent, if (i) the loss, claim,
damage or liability asserted by such purchaser was caused by a defect in the
Prospectus delivered to such purchaser after the Marketing Period relating to
the Notes in relation to which such indemnity is claimed and such defect would
not have existed before the expiry of such period, or (ii) a copy of the
Prospectus (as then amended or supplemented if the Corporation shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Agent to such person at or prior to the written confirmation of
the sale of the Notes to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) Indemnification of the Corporation. Each Agent agrees, severally and
not jointly, to indemnify and hold harmless the Corporation, its directors and
its officers who sign the Registration Statement, any authorized representative
of the Corporation and any person controlling the Corporation to the same extent
as the foregoing indemnity from the Corporation to each Agent, but only with
reference to information furnished in writing by such Agent expressly for use in
the Registration Statement, any preliminary prospectus or the Prospectus or any
amendments or supplements thereto.
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<PAGE>
(c) Notice. 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 Section 7(a) or 7(b) hereof, 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 the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. In the
case of parties indemnified pursuant to the second preceding paragraph, such
separate firm shall be designated in writing by the Manager. In the case of
parties indemnified pursuant to the immediately preceding paragraph, such
separate firm shall be designated in writing by the Corporation. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
(d) Contribution. If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) or 7(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
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Corporation on the one hand and the Agents on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Corporation on the one hand and of the Agents on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Corporation on the one
hand and the Agents on the other in connection with the offering of the Notes
shall be deemed to be in the same proportion as the total net proceeds (before
deducting expenses) from the offering of such Notes received by the Corporation
bear to the total commissions and other compensation
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<PAGE>
received by the Agents in respect thereof. The relative fault of the Corporation
on the one hand and of the Agents on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Corporation or by the Agents and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Corporation and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if all of the Agents are treated as a single entity for
such purpose) or by any other method of allocation that does not take account of
the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding any other provision of this Section 7, no Agent shall
be required to contribute any amount in excess of the amount by which the total
public offering price of the Notes sold through such Agent exceeds the amount of
any damages that such 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.
SECTION 8. STATUS OF EACH AGENT
In soliciting offers to purchase the Notes from the Corporation pursuant to
this Agreement (other than in respect of any Purchase Agreement), each Agent is
acting individually and not jointly and is acting solely as agent for the
Corporation and not as principal. Each Agent will make all reasonable efforts to
assist the Corporation in obtaining performance by each purchaser whose offer to
purchase Notes from the Corporation has been solicited by such Agent and
accepted by the Corporation, but such Agent shall have no liability to the
Corporation in the event any such purchase is not consummated for any reason.
SECTION 9. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS TO SURVIVE DELIVERY
The respective indemnities, agreements, representations, warranties and
other statements of the Corporation and the Agents contained in this Agreement,
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Agent or any
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<PAGE>
person controlling such Agent or by or on behalf of the Corporation, and survive
each delivery of and payment for any of the Notes.
SECTION 10. TERMINATION
This Agreement may be suspended or terminated at any time by the
Corporation as to any Agent upon the receipt by such Agent of written notice of
such suspension or termination by the Corporation. This Agreement may be
terminated by any Agent with respect to itself for any reason at any time upon
the receipt by the Corporation of one business day's written notice of such
termination. If, at the time of any termination with respect to any Agent, an
offer to purchase any of the Notes solicited by such Agent has been accepted by
the Corporation but the time of delivery to the purchaser has not occurred, the
provisions of this Agreement shall remain in effect with respect to such Agent
until such Notes are delivered. The provisions of Sections 2(c), 3(c), 3(g),
3(h), 4, 7, 8 and 9 hereof shall survive any termination of this Agreement.
SECTION 11. SALES OF NOTES DENOMINATED IN A FOREIGN CURRENCY AND INDEXED NOTES
If at any time the Corporation shall determine to issue and sell Notes
denominated in a currency or currency unit other than U.S. Dollars, which other
currency may include a composite currency, or with respect to which an index is
used to determine the amounts of payments of principal and any premium or
interest, the Corporation and any Agent that receives or solicits the offer to
purchase such Notes shall execute and deliver an amendment to this Agreement (a
"Foreign Currency Amendment" or "Indexed Note Amendment," as the case may be) in
the form attached hereto as Exhibit D. Such amendment shall establish, as
appropriate, additions and modifications that shall apply to the sales, whether
offered on an agency or principal basis, of the Notes covered thereby. The
Agents are authorized to solicit offers to purchase Notes with respect to which
an index is used to determine the amounts of payments of principal and any
premium and interest, and the Corporation shall agree to any sales of such Notes
(whether offered on an agency or principal basis), only in a minimum aggregate
amount of $2,500,000.
SECTION 12. NOTICES
Except as otherwise provided herein, all notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication (including via
electronic mail, Bloomberg or any other similar system, provided, in each case,
that such system returns a receipt or notice evidencing receipt of any such
message), provided that any notice given by facsimile shall be effective upon
confirmation by telephone as provided below. Notices to any Agent shall be
directed to it as follows: if to Lehman Brothers Inc., at 3 World Financial
Center,
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New York, New York 10285, Attention: Medium-Term Note Product Management, 12th
Floor, Telephone No.: (212) 526-2040; Telecopy No.: (212) 528-1718; if to BT
Alex. Brown Incorporated, at 130 Liberty Street, New York, New York 10006,
Attention: David Choi, Telephone: (212) 775-3054, Telecopy No.: (212) 669-5492;
if to Goldman, Sachs & Co., at 85 Broad Street, New York, New York 10004,
Attention: Money Market Origination, 27th Floor, Telephone:(212) 902-2251,
Telecopy No.: (212) 902-0683; if to Morgan Stanley & Co. Incorporated, at 1585
Broadway, New York, New York 10036, Attention: Manager -Continuously Offered
Products, Telephone: (212) 761-2000, Telecopy No.: (212) 761-0780; if to
Merrill Lynch & Co., at Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Merrill Lynch World Headquarters, World Financial Center, North Tower, 10th
Floor, New York, New York 10281, Attention: MTN Product Management, Telephone:
(212) 449-7476, Telecopy No.: (212) 449-2234; if to Salomon Brothers Inc, at
Salomon Brothers Inc, Seven World Trade Center, New York, New York 10048,
Attention: Medium-Term Note Department, Telephone: (212) 783-5897, Telecopy
No.: (212) 783-2274; if to Smith Barney Inc., at 390 Greenwich Street-4th Floor,
New York, New York 10013, Attention: MTN Product Management/Origination,
Telephone: (212) 723-5123, Telecopy No.: (212) 723-8854; notices to the
Corporation shall be directed to it as follows: Bankers Trust New York
Corporation, 130 Liberty Street, Mail Stop 2361, New York 10006, Attention:
Treasury and Funding, Telephone No.: (212) 775-5789, Telecopy No.: (212) 669-
6098, with a copy to Bankers Trust New York Corporation, 130 Liberty Street, New
York, New York 10006, Attention: Office of the Secretary, Telephone No.: (212)
250-2500, Telecopy No.: (212) 250-2675.
SECTION 13. BINDING EFFECT; BENEFITS
This Agreement shall be binding upon each Agent, the Corporation, and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (i) the representations,
warranties, indemnities and agreements of the Corporation contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Agent within the meaning of Section 15 of the Securities
Act, and (ii) the indemnity agreement of the Agents contained in Section 7
hereof shall also be deemed to be for the benefit of directors of the
Corporation, officers of the Corporation who have signed the Registration
Statement and the person or persons, if any, who control the Corporation within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
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SECTION 14. GOVERNING LAW; COUNTERPARTS
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in counterparts
and the executed counterparts shall together constitute a single instrument.
SECTION 15. PARAGRAPH HEADINGS
The paragraph headings used in this Agreement are for convenience of
reference only, and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
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<PAGE>
If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
BANKERS TRUST NEW YORK CORPORATION
By: /s/ Kenneth J. Weiller
--------------------------------
Name: Kenneth J. Weiller
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
LEHMAN BROTHERS INC.
By: /s/ Herbert H. McDade
----------------------------
Name: Herbert H. McDade
Title: MD
BT ALEX. BROWN INCORPORATED
By: /s/ Warren H. Spar
----------------------------
Name: Warren H. Spar
Title: Managing Director
GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
- --------------------------------
(Goldman, Sachs & Co.)
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:____________________________
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:____________________________
Name:
Title:
SALOMON BROTHERS INC
By:____________________________
Name:
Title:
SMITH BARNEY INC.
By:____________________________
Name:
Title:
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EXHIBIT A
---------
The Corporation agrees to pay each Agent a commission equal to the
following percentage of the aggregate U.S. Dollar equivalent of the
principal amount of Notes:
TERM COMMISSION
RATE
- -----------------------------------------------------------
9 months to less than 12 months 0.125%
- -----------------------------------------------------------
12 months to less than 18 months 0.150%
- -----------------------------------------------------------
18 months to less than 2 years 0.200%
- -----------------------------------------------------------
2 years to less than 3 years 0.250%
- -----------------------------------------------------------
3 years to less than 4 years 0.350%
- -----------------------------------------------------------
4 years to less than 5 years 0.450%
- -----------------------------------------------------------
5 years to less than 6 years 0.500%
- -----------------------------------------------------------
6 years to less than 7 years 0.550%
- -----------------------------------------------------------
7 years to less than 10 years 0.600%
- -----------------------------------------------------------
10 years to less than 15 years 0.625%
- -----------------------------------------------------------
15 years to less than 20 years 0.650%
- -----------------------------------------------------------
20 years to less than 30 years 0.750%
- -----------------------------------------------------------
30 years or more Subject to negotiation
- -----------------------------------------------------------
<PAGE>
EXHIBIT B
---------
Bankers Trust New York Corporation
Senior Medium-Term Notes, Series A
Subordinated Medium-Term Notes, Series A
Administrative Procedures
-------------------------
Senior Medium-Term Notes, Series A (the "Senior Notes") and Subordinated
Medium-Term Notes, Series A (the "Subordinated Notes" and, collectively with the
Senior Notes, the "Notes) may be offered on a continuing basis by Bankers Trust
New York Corporation (the "Corporation"). Lehman Brothers Inc. (along with such
other entities who may be appointed in accordance with the Distribution
Agreement (as defined herein), each an "Agent" and collectively, the "Agents"),
has agreed to use its reasonable efforts to solicit offers to purchase the
Notes. The Notes are being sold pursuant to a Distribution Agreement between the
Corporation and the Agents dated October 1, 1997 (as it may be supplemented or
amended from time to time, the "Distribution Agreement") to which these
administrative procedures are attached as an exhibit. The Senior Notes are to be
issued from time to time pursuant to an Indenture, dated as of November 1, 1991,
between the Corporation and The Chase Manhattan Bank (formerly The Chase
Manhattan Bank (National Association)), as trustee (the "Senior Trustee"), as
supplemented by the First Supplemental Indenture, dated as of September 1, 1993,
and the Second Supplemental Indenture, dated as of October 1, 1997, thereto (as
so supplemented and as further supplemented or amended from time to time, the
"Senior Indenture"). The Subordinated Notes are to be issued from time to time
pursuant to an Indenture, dated as of April 1, 1992, between the Corporation and
Marine Midland Bank (formerly Marine Midland Bank, N.A.), as trustee (the
"Subordinated Trustee", and together with the Senior Trustee, the "Trustees"),
as supplemented by the First Supplemental Indenture, dated as of January 15,
1993, and the Second Supplemental Indenture, dated as of October 1, 1997,
thereto (as so supplemented and as further supplemented or amended from time to
time, the "Subordinated Indenture," and together with the Senior Indenture, the
"Indentures"). The Indenture pursuant to which the Notes are issued is
hereinafter referred to as the "Relevant Indenture," and the trustee under the
Relevant Indenture is hereinafter referred to as the "Relevant Trustee." The
Corporation has appointed Bankers Trust Company as paying agent with respect to
each Indenture, and may appoint any other agent, including the Corporation or
the Relevant Trustee, to such capacity from time to time (the agent then serving
in such capacity being referred to as the "Paying Agent"). Each Trustee has
appointed Bankers Trust Company as authenticating agent under the Relevant
Indenture, and may appoint any other agent to such capacity from time to time
(the agent then serving in such capacity being referred to as the
"Authenticating Agent"). The Senior Notes will rank equally with all other
unsecured and unsubordinated indebtedness of the Corporation unless otherwise
specified in the Prospectus (as defined below), the Subordinated Notes will be
Subordinated as specified in the Prospectus and all the Notes will have been
registered with the Securities and Exchange Commission (the "Commission").
Unless otherwise noted, terms
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not defined herein shall have the same meanings as in the Prospectus Supplement
relating to the Notes (the "Prospectus Supplement") or in the Distribution
Agreement, as applicable. Special administrative procedures for Multi-Currency
Notes and for Certificated Notes follow these administrative procedures.
Administrative procedures for the offering are explained below.
Price to Public
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Each Note will be issued at 100% of its principal amount, unless otherwise
determined by the Corporation.
Date of Issuance
- ----------------
Each Note will be dated and issued as of the date of its authentication by
the Authenticating Agent.
Maturities
- ----------
Each Note will mature on a Business Day selected by the purchaser and
agreed upon by the Corporation, such date being at least nine months from the
date of issuance. Each Floating Rate Note will mature on an Interest Payment
Date.
Registration
- ------------
Notes will be issued only in fully registered form. Each Note will be
represented by either a Global Note delivered to the Paying Agent, as agent for
The Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Global Note") or a certificate delivered to the holder
thereof or a Person designated by such holder (a "Certificated Note").
Certificated Notes may be presented for registration of transfer or exchange at
the New York office of the Relevant Trustee's designated agent.
Denominations
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Unless otherwise indicated in the applicable Pricing Supplement, Notes will
be issued and payable in U.S. Dollars in denominations of $1,000 and any
integral multiple thereof.
Interest Payments
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Interest on Fixed Rate Notes and Floating Rate Notes shall accrue and be
payable on terms specified in the Prospectus Supplement and the applicable
Pricing Supplement.
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Acceptance and Rejection of Offers
- ----------------------------------
The Corporation shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Corporation, orally or in writing, each reasonable
offer to purchase Notes from the Corporation received by it other than those
rejected by such Agent. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Corporation, to reject any offers in
whole or in part.
Settlement
- ----------
The receipt of immediately available funds in U.S. Dollars by the
Corporation in The City of New York in payment for a Note (less the applicable
commission) and the authentication and issuance of such Note shall, with respect
to such Note, constitute "Settlement." All offers accepted by the Corporation
will be settled from one to three Business Days from the date of acceptance by
the Corporation pursuant to the timetable for Settlement set forth below unless
the Corporation and the purchaser agree to Settlement on a later date; provided,
however, that the Corporation will so notify the Paying Agent of any such later
date on or before the Business Day immediately prior to the Settlement date.
Settlement Procedures
- ---------------------
In the event of a purchase of Notes by an Agent, as principal, appropriate
Settlement details will be set forth in the applicable Purchase Agreement to be
entered into between such Agent and the Corporation pursuant to the Distribution
Agreement. In the event of the sale of a Multi-Currency Note or an Indexed Note,
additional or different Settlement details may be set forth in the applicable
Foreign Currency Amendment or Indexed Note Amendment to be entered into between
such Agent and the Corporation pursuant to the Distribution Agreement.
The following Settlement procedures apply to Notes issued as Global Notes.
Special Settlement procedures relating to Certificated Notes are set forth
below.
An owner of a Global Note will not be entitled to receive a certificate
representing such Note. In connection with the qualification of the Global Notes
for eligibility in the book-entry system maintained by DTC, the Paying Agent and
the Authenticating Agent will perform the custodial, document control and
administrative functions described below, in accordance with their respective
obligations under a Letter of Representations from the Corporation and the
Paying Agent and the Authenticating Agent to DTC dated as of October 1, 1997,
and a Medium-Term Note Certificate Agreement between the Paying Agent and DTC,
dated October 21, 1988 (the "Certificate Agreement"), and their obligations as
participants in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Except
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EXHIBIT B
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as otherwise set forth in this Exhibit B, Global Notes will be issued in
accordance with the administrative procedures set forth below.
Issuance. On any date of Settlement for one or more Fixed Rate Global
--------
Notes, the Corporation will issue one or more Global Notes in fully registered
form without coupons, with a single CUSIP number, representing all of such Notes
that have the same Original Issue Date, interest rate, redemption procedures (if
any), and Stated Maturity. Similarly, on any date of Settlement for one or more
Floating Rate Global Notes, the Corporation will issue one or more Global Notes,
with a single CUSIP number, representing all of such Notes that have the same
Original Issue Date, Interest Rate Basis, Initial Interest Rate, Interest
Payment Dates, Index Maturity, Spread or Spread Multiplier (if any), minimum
interest rate (if any), maximum interest rate (if any), redemption provisions
(if any), and Stated Maturity. No Global Note will represent (i) both Fixed Rate
and Floating Rate Global Notes or (ii) any Certificated Note. If the Global
Notes having a single CUSIP number exceed the maximum principal amount specified
by DTC, one Global Note will be authenticated and issued to represent each such
maximum principal amount and an additional Global Note will be authenticated and
issued to represent any remaining principal amount of such Global Notes.
Identification Numbers. The Corporation will arrange, on or prior to
----------------------
commencement of a program for the offering of Global Notes, with the CUSIP
Service Bureau of Standard & Poor's Ratings Group (the "CUSIP Service Bureau")
for the reservation of a series of CUSIP numbers (including tranche numbers),
consisting of approximately 900 CUSIP numbers and relating to Global Notes. The
Authenticating Agent has obtained or will obtain from the CUSIP Service Bureau a
written list of such series of reserved CUSIP numbers and will deliver to the
Corporation and DTC such written list of 900 CUSIP numbers of such series. The
Authenticating Agent will assign CUSIP numbers to Global Notes as described
below under Settlement Procedure "C" below. DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the Authenticating Agent has
assigned to Global Notes. The Authenticating Agent will notify the Corporation
at any time when fewer than 100 of the reserved CUSIP numbers remain unassigned
to Global Notes, and if it deems necessary, the Corporation will reserve
additional CUSIP numbers for assignment to Global Notes representing Global
Notes. Upon obtaining such additional CUSIP numbers the Authenticating Agent
shall deliver such additional CUSIP numbers to the Corporation and DTC.
Registration. Each Global Note will be registered in the name of Cede &
------------
Co., as nominee for DTC, on the Security Register maintained under the Relevant
Indenture. The beneficial owner of a Global Note (or one or more indirect
participants in DTC designated by such owner) will designate one or more
participants in DTC (with respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry form, in accordance with
instructions provided by such Participants, a credit balance with respect to
such Note in the
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EXHIBIT B
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account of such Participants. The ownership interest of such beneficial owner in
such Note will be recorded through the records of such Participants or through
the separate records of such Participants and one or more indirect participants
in DTC.
Transfers. Transfers of beneficial interests in a Global Note will be
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accomplished by book entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Global Note.
Consolidation and Exchange. The Authenticating Agent may deliver to DTC and
--------------------------
the CUSIP Service Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more Outstanding Global Notes that
represent (a) Fixed Rate Global Notes having the same Original Issue Date,
interest rate, redemption provisions (if any), and Stated Maturity and with
respect to which interest has been paid to the same date or (b) Floating Rate
Global Notes having the same Original Issue Date, Interest Rate Basis, Initial
Interest Rate, Interest Payment Dates, Index Maturity, Spread or Spread
Multiplier (if any), minimum interest rate (if any), maximum interest rate (if
any), redemption provisions (if any), and Stated Maturity and with respect to
which interest has been paid to the same date, (ii) a date, occurring at least
thirty days after such written notice is delivered and at least thirty days
before the next Interest Payment Date for such Global Notes, on which such
Global Notes shall be exchanged for one or more replacement Global Notes, and
(iii) a single new CUSIP number to be assigned to such replacement Global Notes.
Upon receipt of such a notice, DTC will send to its participants (including the
Authenticating Agent) a written reorganization notice to the effect that such
exchange will occur on such date. Prior to the specified exchange date, the
Authenticating Agent will deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and the new CUSIP number and stating that as of
such exchange date, the CUSIP numbers of the Global Notes to be exchanged will
no longer be valid. On the specified exchange date, the Authenticating Agent
will exchange such Global Notes for one or more Global Notes bearing the single
new CUSIP number, and the CUSIP numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be canceled and not immediately
reassigned. If the Global Notes to be exchanged exceed the maximum principal
amount specified by DTC, one Global Note will be authenticated and issued to
represent each such maximum principal amount of the exchanged Global Notes and
an additional Global Note will be authenticated and issued to represent any
remaining principal amount of such Global Notes.
Interest. Interest on each Global Note will accrue and be payable on terms
--------
specified in the Prospectus Supplement and the applicable Pricing Supplement.
Standard & Poor's Ratings Group will use the information received in the pending
deposit message described under Settlement Procedure "C" below in order to
include the amount of any interest payable and certain other information
regarding the related Global Note in the appropriate weekly bond report
published by Standard & Poor's Ratings Group.
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EXHIBIT B
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Promptly after each Interest Determination Date for Floating Rate Notes,
the Corporation will notify the Paying Agent, and the Paying Agent in turn will
notify Standard & Poor's Ratings Group, of the interest rates determined on such
Interest Determination Date.
Payments of Principal and Interest
----------------------------------
Payments of Interest Only. Promptly after each Regular Record Date, the
-------------------------
Paying Agent will deliver to the Corporation and DTC a written notice
specifying by CUSIP number the amount of interest to be paid on each Global
Note on the following Interest Payment Date (other than an Interest Payment
Date coinciding with Maturity) and the total of such amounts. DTC will
confirm the amount payable on each Global Note on such Interest Payment
Date by reference to the daily bond reports published by Standard & Poor's
Ratings Group. The Corporation will pay to the Paying Agent the total
amount of interest due on such Interest Payment Date (other than at
Maturity), and the Paying Agent will pay such amount to DTC at the times
and in the manner set forth below under "Manner of Payment."
Payments at Maturity. On or about the first Business Day of each month,
--------------------
the Paying Agent will deliver to the Corporation and DTC a written list of
principal and interest to be paid on each Global Note maturing in the
following month. The Corporation, the Paying Agent and DTC will confirm the
amounts of such principal and interest payments with respect to each such
Global Note on or about the fifth Business Day preceding the Maturity of
such Global Note. The Corporation will pay to the Paying Agent the
principal amount of such Global Note, together with interest due at such
Maturity. The Paying Agent will pay such amount to DTC at the times and in
the manner set forth below under "Manner of Payment."
Manner of Payment. The total amount of any principal and interest due
-----------------
on Global Notes on any Interest Payment Date or at Maturity shall be paid
by the Corporation to the Paying Agent in funds available for use by the
Paying Agent as of 9:30 A.M. (New York City time) on such date. The
Corporation will make such payment on such Global Notes by wire transfer to
the Paying Agent, or, if the Corporation so directs, by instructing the
Paying Agent to withdraw funds from an account maintained by the
Corporation at the Paying Agent. The Corporation will confirm such
instructions in writing to the Paying Agent. For maturity, redemption or
any other principal payments, prior to 10:00 A.M. (New York City time) on
such date or as soon as possible thereafter, the Paying Agent will make
such payments to DTC in same day funds in accordance with DTC's Same Day
Funds Settlement Paying Agent Operating Procedures. For interest payments,
the Paying Agent will make such payments to DTC in accordance with existing
arrangements between DTC and the Paying Agent. DTC will allocate such
payments to its participants in accordance with
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EXHIBIT B
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its existing operating procedures. Neither the Corporation (either as
issuer or as Paying Agent) nor the Paying Agent shall have any direct
responsibility or liability for the payment by DTC to such Participants of
the principal of and interest on the Global Notes.
Withholding Taxes. The amount of any taxes required under applicable
-----------------
law to be withheld from any interest payment on a Global Note will be
determined and withheld by the Participant, indirect participant in DTC or
other Person responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
Settlement Procedures. Settlement Procedures with regard to each Global
---------------------
Note sold by the Corporation through an Agent, as agent, shall be as follows:
A. Such Agent (the "Presenting Agent") will advise the Corporation by
telex or facsimile of the following settlement information:
1. Principal amount of the Global Note (and, if multiple Notes are to be
issued, denominations thereof).
2. Settlement date (Original Issue Date).
3. Stated Maturity.
4. Issue Price.
5. Trade Date.
6. Specified Currency, whether the option to elect payments in a
Specified Currency applies and, if the Specified Currency is not U.S.
Dollars, the authorized denominations.
7. DTC Participant account number of such Presenting Agent.
8. Interest rate:
(a) Fixed Rate Notes:
i) interest rate; and
ii) overdue rate, if any.
(b) Floating Rate Notes:
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EXHIBIT B
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i) Interest Rate Basis (e.g., Commercial Paper Rate);
- -
ii) Initial Interest Rate;
iii) Spread or Spread Multiplier, if any;
iv) Interest Reset Dates, Interest Reset Period and Interest
Determination Dates;
v) Index Maturity;
vi) maximum and minimum interest rates, if any; and
vii) overdue rate, if any.
(c) Indexed Notes:
The applicable terms thereof.
9. Interest Payment Date(s) and Regular Record Dates.
10. Optional Interest Reset Dates, if any, and Subsequent Interest
Periods, if any.
11. Extension Periods, if any, and Final Maturity Dates, if any.
12. The date on or after which the Notes are redeemable at the option of
the Corporation or subject to repurchase by the Corporation at the
option of the holder, and additional redemption or repurchase
provisions, if any.
13. Amortization schedule, if any.
14. Wire transfer information, if applicable.
15. Such Presenting Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the Corporation upon
Settlement).
16. Whether such Global Note is issued at an original issue discount
("OID"), and, if so, the total amount of OID, the yield to maturity
and the initial accrual period of OID.
B. The Corporation will advise the Authenticating Agent and the Paying
Agent by electronic transmission of the information set forth in Settlement
Procedure "A" above and the name of such Presenting Agent. Each such
communication by the Corporation shall constitute a representation and warranty
by the Corporation to the Relevant Trustee and such Presenting Agent that (i)
such Global Note is then, and at the time of issuance and sale thereof will be,
duly authorized for issuance and sale by the Corporation, (ii) such Global Note
will conform with the terms of the applicable Indenture, and (iii) upon
authentication and delivery of such Global Note, the aggregate initial offering
price of all Notes issued
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EXHIBIT B
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under the Relevant Indenture will not exceed the maximum aggregate amount then
authorized (except for Notes represented by Global Notes authenticated and
delivered in exchange for or in lieu of Global Notes pursuant to the Relevant
Indenture).
The Corporation shall prepare a Pricing Supplement with respect to such
Notes and file such Pricing Supplement with the Commission pursuant to Rule
424(b). The Corporation shall use its reasonable efforts to deliver a copy of
such Pricing Supplement to the Presenting Agent, in accordance with the
procedures set forth below, in sufficient time as shall reasonably permit the
Presenting Agent to carry out the procedures referred to in Settlement Procedure
"D" below and in any event, if reasonably practicable, by 12:00 noon (New York
City time) on the Business Day following the applicable trade date.
C. The Authenticating Agent will assign a CUSIP number to such Global Note
representing such Note and enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement information to
DTC, such Presenting Agent, Moody's Investors Service, Inc., IBCA and Standard &
Poor's Ratings Group:
1. The applicable information set forth in Settlement Procedure "A."
2. Identification as a Fixed Rate Global Note or a Floating Rate Global
Note.
3. The initial Interest Payment Date for such Note, number of days by
which such date succeeds the related "DTC Regular Record Date" (which
term means the Regular Record Date except in the case of Floating Rate
Notes that reset daily or weekly, in which case it means the date 5
calendar days immediately preceding the Interest Payment Date) and
amount of interest payable on such Interest Payment Date per $1,000 of
principal amount of such Note.
4. Frequency of interest payments (monthly, semiannually, quarterly,
etc.).
5. CUSIP number of such Global Note.
6. Whether such Global Note will represent any other Note (to the extent
known at such time).
D. The Presenting Agent will deliver to the purchaser or purchasers a copy
of the most recent Prospectus applicable to the Note with or prior to any
written offer of Notes and the confirmation and payment by the purchaser or
purchasers of the Notes represented by such Global Note.
Such Presenting Agent will confirm the purchase of such Note or Notes to
the purchaser or purchasers either by transmitting to the Participants with
respect to such Note or
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EXHIBIT B
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Notes a confirmation order or orders through DTC's institutional delivery system
or by mailing a written confirmation to such purchaser. The Agent shall deliver
a copy of the Pricing Supplement to the purchaser or purchasers in accordance
with the procedures set forth above.
E. The Corporation will complete the note certificate evidencing such Note
or Notes, and forward such certificate to the Authenticating Agent for
authentication together with an Instruction in the form established by the
Corporation from time to time. The Authenticating Agent will authenticate such
certificate, deliver such certificate to DTC's custodian, and issue any orders
necessary to cause DTC to credit the Note to the Paying Agent's participant
account at DTC.
F. DTC will credit such Note or Notes to the Paying Agent's participant
account at DTC.
G. The Paying Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Note or Notes to
the Paying Agent's participant account and credit such Note or Notes to such
Agent's participant account and (ii) debit such Presenting Agent's settlement
account and credit the Paying Agent's settlement account for an amount equal to
the price of such Note or Notes less such Presenting Agent's commission. The
entry of such a deliver order shall constitute a representation and warranty by
the Paying Agent to DTC that (i) the Global Note has been issued and
authenticated and (ii) the Paying Agent is holding such Global Note, as
custodian for DTC, pursuant to the Certificate Agreement.
H. The Presenting Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Note to such
Presenting Agent's participant account and credit such Note or Notes to the
participant accounts of the Participants with respect to such Note or Notes and
(ii) to debit the settlement accounts of such Participants and credit the
settlement account of such Agent for an amount equal to the price of such Note.
I. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "G" and "H" above will be settled in accordance with SDFS
operating procedures in effect on the Settlement date.
J. The Paying Agent will transfer by wire to an account designated by the
Corporation, or, if the Corporation so directs, credit to an account of the
Corporation maintained at the Paying Agent, funds available for immediate use in
the amount transferred to the Paying Agent in accordance with Settlement
Procedure "G" above.
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Timetable. For orders of Global Notes solicited by an Agent, as agent, and
---------
accepted by the Corporation for settlement, Settlement Procedures "A" through
"J" set forth above shall be completed as soon as possible but not later than
the respective times (New York City time) set forth below:
Settlement.
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 noon on the sale date
C 2:00 P.M. on the sale date
D Day after sale date
E 3:00 P.M. on day before Settlement date
F 10:00 A.M. on Settlement date
G-H 2:00 P.M. on Settlement date
I 4:45 P.M. on Settlement date
J 5:00 P.M.. on Settlement date
If a sale is to be settled more than one Business Day after the sale date,
Settlement Procedures "A," "B" and "C" shall be completed as soon as practicable
but no later than 11:00 A.M., 12:00 noon and 2:00 P.M., as the case may be, on
the first Business Day after the sale date. If the initial interest rate for a
Floating Rate Global Note has not been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedures "B" and "C" shall be completed
as soon as such rate has been determined but no later than 12:00 noon and 2:00
P.M., respectively, on the second Business Day before the Settlement date.
Settlement Procedure "J" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events specified in the
SDFS operating procedures in effect on the Settlement date.
If Settlement of a Global Note is rescheduled or canceled, the Paying Agent
will deliver to DTC, through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled Settlement date.
Failure to Settle. If the Paying Agent has not entered an SDFS deliver
-----------------
order with respect to a Global Note pursuant to Settlement Procedure "G" above,
then, upon written request (which may be effected by facsimile transmission) of
the Corporation, the Paying Agent shall deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable but no later than 2:00 P.M.
on any Business Day, a withdrawal message instructing DTC to debit such Note to
the Paying Agent's participant account. DTC will process the withdrawal message,
provided that the Paying Agent's participant account contains a principal amount
of the Global Note representing such Note that is at least equal to
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EXHIBIT B
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the principal amount to be debited. If a withdrawal message is processed with
respect to all the Global Notes represented by a Global Note, the Paying Agent
will mark such Global Note "canceled," make appropriate entries in the Paying
Agent's records and send such canceled Global Note to the Corporation. The CUSIP
number assigned to such Global Note shall, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately reassigned. If a withdrawal
message is processed with respect to one or more, but not all, of the Notes
represented by a Global Note, the Paying Agent will exchange such Global Note
for two Global Notes, one of which shall represent such Note or Notes and shall
be canceled immediately after issuance and the other of which shall represent
the other Notes previously represented by the surrendered Global Note and shall
bear the CUSIP number of the surrendered Global Note.
If the purchase price for any Global Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, such Agent may enter SDFS deliver
orders through DTC's Participant Terminal System debiting such Global Note free
to such Agent's participant account and crediting such Global Note free to the
participant account of the Paying Agent and shall notify the Paying Agent and
the Corporation thereof. Thereafter, the Paying Agent (i) will immediately
notify the Corporation, once the Paying Agent has confirmed that such Global
Note has been credited to its participant account, and the Corporation shall
immediately transfer by Fedwire (immediately available funds) to such Agent an
amount equal to the amount with respect to such Global Note which was previously
sent by wire transfer to the account of the Corporation in accordance with
Settlement Procedure "J" above, and (ii) the Paying Agent will deliver the
withdrawal message and take the related actions described in the preceding
paragraph. Such debits and credits will be made on the Settlement date, if
possible, and in any event not later than 5:00 P.M. on the following Business
Day. If such failure shall have occurred for any reason other than a default by
such Agent in the performance of its obligations hereunder and under the
Distribution Agreement, then the Corporation will reimburse such Agent on an
equitable basis for the loss of the use of the funds during the period when they
were credited to the account of the Corporation.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Global Note, DTC may take any actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure to settle with respect to
one or more, but not all, of the Notes to have been represented by a Global
Note, the Paying Agent will provide, in accordance with Settlement Procedure "E"
above, for the authentication and issuance of a Global Note representing the
other Global Notes to have been represented by such Global Note and will make
appropriate entries in its records.
Relevant Trustee and Agents Not to Risk Funds. Nothing herein shall be
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deemed to require the Relevant Trustee, any Paying Agent or any Authenticating
Agent to risk or
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EXHIBIT B
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expend its own funds in connection with any payment to the Corporation, DTC, the
Agents or the purchaser, it being understood by all parties that payments made
by the Relevant Trustee, any Paying Agent or any Authenticating Agent to the
Corporation, DTC, the Agents, or the purchaser shall be made only to such extent
that funds are provided to the Relevant Trustee, any Paying Agent or any
Authenticating Agent for such purpose. Similarly, nothing herein shall alter any
duty, or limit or diminish any right or immunity, of the Relevant Trustee, any
Paying Agent or any Authenticating Agent under the Relevant Indenture.
Redemption
- ----------
The Notes will be redeemable (if at all) prior to their Stated Maturity on
terms specified in the Prospectus Supplement and the applicable Pricing
Supplement.
Maturity
- --------
Notes will be paid at Maturity on terms specified in the Prospectus
Supplement and the applicable Pricing Supplement.
Procedures for Establishing the Terms of the Notes
- --------------------------------------------------
The Corporation and the Agents will discuss from time to time the rates to
be borne by the Notes that may be sold as a result of the solicitation of offers
by the Agents. Once any Agent has recorded any indication of interest in Notes
upon certain terms and communicated such terms to the Corporation, if the
Corporation accepts an offer to purchase Notes upon such terms, the Corporation
will prepare a Pricing Supplement, in the form previously approved by the
Agents, reflecting the terms of such Notes and, after approval from such Agent,
will arrange to electronically transmit for filing with the Commission under the
EDGAR system a copy of such Pricing Supplement (together with the Prospectus, if
amended or supplemented) and will supply an appropriate number of copies of the
Prospectus, as then amended or supplemented, together with such Pricing
Supplement, to such Agent. See "Delivery of Prospectus."
If the Corporation decides to post rates and a decision has been reached to
change interest rates, the Corporation will promptly notify each Agent. Each
Agent will forthwith suspend solicitation of purchases. At that time, the Agents
will recommend, and the Corporation will establish, rates to be so "posted."
Following establishment of posted rates and prior to the filing described in the
following sentence, the Agents may only record indications of interest in
purchasing Notes at the posted rates. Once any Agent has recorded any indication
of interest in Notes at the posted rates and communicated the same to the
Corporation, if the Corporation plans to accept an offer at the posted rate, the
Corporation will prepare a Pricing Supplement reflecting such posted rates and,
after approval from the Agents, will arrange to electronically transmit for
filing with the Commission under the
<PAGE>
EXHIBIT B
---------
Page 14
EDGAR system a copy of such Pricing Supplement (together with the Prospectus, if
amended or supplemented) and will supply an appropriate number of copies of the
Prospectus, as then amended or supplemented, to the Agent who presented such
offer. See "Delivery of Prospectus."
Suspension of Solicitation; Amendment or Supplement
- ---------------------------------------------------
In the event that at the time the Agents, at the direction of the
Corporation, suspend solicitation of offers to purchase from the Corporation,
there shall be any orders outstanding which have not been settled, the
Corporation will promptly advise the Agents and the Relevant Trustee, the
Authenticating Agent and the Paying Agent whether such orders may be settled and
whether copies of the Prospectus as theretofore amended and/or supplemented as
in effect at the time of the suspension may be delivered in connection with the
settlement of such orders. The Corporation will have the sole responsibility for
such decision and for any arrangements which may be made in the event that the
Corporation determines that such orders may not be settled or that copies of
such Prospectus may not be so delivered.
Delivery of Prospectus
- ----------------------
A copy of the Prospectus as most recently amended or supplemented on the
date of delivery thereof, together with the applicable Pricing Supplement, must
be delivered to a purchaser prior to or simultaneously with the earlier of the
delivery of (i) the written confirmation of a sale sent to a purchaser or his
agent and (ii) any Note purchased by such purchaser. The Corporation shall
ensure that the applicable Agent receives copies of the Prospectus and each
amendment or supplement thereto (including the applicable Pricing Supplement) in
such quantities and within such time limits as will enable such Agent to deliver
such confirmation or Note to a purchaser as contemplated by these procedures and
in compliance with the preceding sentence. Copies of Pricing Supplements should
be delivered:
If to Lehman Brothers Inc.:
By facsimile delivery to:
Lehman Brothers Inc.
c/o ADP
Prospectus Services
536 Broad Hollow Road
Melville, New York 11747
Attention: Mike Ward
Telephone: (516) 254-7106
Telecopy: (516) 249-7492
<PAGE>
EXHIBIT B
---------
Page 15
with a copy by hand to:
Lehman Brothers Inc.
3 World Financial Center, 9th Floor
New York, New York 10285-0900
Attention: Brunnie Vazquez
Telephone: (212) 526-8400
Telecopy: (212) 528-6139
If to BT Alex. Brown Incorporated:
BT Alex. Brown Incorporated
130 Liberty Street
New York, New York 10006
Attention: David Choi
Telephone: (212) 775-3054
Telecopy: (212) 669-5492
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Medium Term Note Trading
Telephone: (212) 902-8401
Telecopy: (212) 902-0658
If to Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1585 Broadway
2nd Floor
New York, New York 10036
Attention: Medium-Term Note Trading Desk, Carlos Cabrera
Telephone: (212) 761-2000
Telecopy: (212) 761-8846
<PAGE>
EXHIBIT B
---------
Page 16
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Tritech Services
40 Colonial Drive
Piscataway, New Jersey 08854
Attention: Prospectus Operations/Nachman Kimerling
Telephone: (732) 885-2768
Telecopy: (732) 885-2774/5/6
with a copy to:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone: (212) 449-7476
Telecopy: (212) 449-2234
If to Salomon Brothers Inc:
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Attention: Medium-Term Note Department
Telephone: (212) 783-5897
Telecopy: (212) 783-2274
If to Smith Barney Inc.:
By facsimile delivery to:
Smith Barney Inc.
390 Greenwich Street - 4th Floor
New York, New York 10013
Attention: MTN Product Management/Origination
Telephone: (212) 723-5123
Telecopy: (212) 723-8854
<PAGE>
EXHIBIT B
---------
Page 17
and by facsimile delivery to:
Smith Barney Inc.
Brooklyn Army Terminal
140 58th Street - 8th Floor
Brooklyn, New York 11220
Attention: Prospectus Fulfillment - Andrea Springer
Telephone: (718) 921-8460
Telecopy: (718) 921-8472
If, since the date of acceptance of a purchaser's offer, the Prospectus shall
have been supplemented solely to reflect any sale of Notes on terms different
from those agreed to between the Corporation and such purchaser or a change in
posted rates not applicable to such purchaser, such purchaser shall not receive
the Prospectus as supplemented by such new supplement, but shall receive the
Prospectus as supplemented to reflect the terms of the Notes being purchased by
such purchaser and otherwise as most recently amended or supplemented on the
date of delivery of the Prospectus. The Corporation will make all such
deliveries with respect to all Notes sold directly by the Corporation.
Authenticity of Signatures
- --------------------------
The Corporation will cause the Authenticating Agent to furnish the Agents
from time to time with the specimen signatures of each of the Authenticating
Agent's officers, employees and agents who have been authorized by the
Authenticating Agent to authenticate Notes, but the Agents will have no
obligation or liability to the Corporation or the Authenticating Agent in
respect of the authenticity of the signature of any officer, employee or agent
of the Corporation or the Authenticating Agent on any Note.
Advertising Costs
- -----------------
The Corporation will determine with the Agents the amount and nature
of advertising that may be appropriate in offering the Notes. Advertising
expenses incurred with the prior consent of the Corporation will be paid by the
Corporation.
<PAGE>
EXHIBIT B
---------
Page 18
SPECIAL ADMINISTRATIVE PROCEDURES
FOR MULTI-CURRENCY NOTES
Settlements, payments and other matters relating to any Multi-Currency Note
shall be effected in a manner consistent with the terms of such Multi-Currency
Note, as set forth therein and in the Prospectus Supplement and the applicable
Pricing Supplement and the applicable Indenture.
<PAGE>
EXHIBIT B
---------
Page 19
SETTLEMENT PROCEDURES FOR CERTIFICATED NOTES
Settlement procedures with regard to each Certificated Note sold through
each Agent shall be as follows:
A. The Presenting Agent will advise the Corporation by telex or facsimile
of the following information:
1. Exact name in which the Note is to be registered ("Registered Owner").
2. Exact address of the Registered Owner and address for payment of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner (if available).
4. Principal amount of the Note (and, if multiple Notes are to be issued,
denominations thereof).
5. Settlement date (Original Issue Date).
6. Stated Maturity.
7. Issue Price.
8. Trade Date.
9. Specified Currency, whether the option to elect payments in a Specified
Currency applies and, if the Specified Currency is not U.S. Dollars,
the authorized denominations.
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate; and
ii) overdue rate, if any.
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g., Commercial Paper Rate);
- -
ii) Initial Interest Rate;
iii) Spread or Spread Multiplier, if any;
<PAGE>
EXHIBIT B
---------
Page 20
iv) Interest Reset Dates, Interest Reset Period and Interest
Determination Dates;
v) Index Maturity;
vi) maximum and minimum interest rates, if any; and
vii) overdue rate, if any.
(c) Indexed Notes:
The applicable terms thereof.
11. Interest Payment Date(s) and Regular Record Dates.
12. Optional Interest Reset Dates, if any, and Subsequent Interest Periods,
if any.
13. Extension Periods, if any, and Final Maturity Dates, if any.
14. The date on or after which the Notes are redeemable at the option of
the Corporation or subject to repurchase by the Corporation at the
option of the holder, and additional redemption or repurchase
provisions, if any.
15. Amortization schedule, if any.
16. Wire transfer information, if applicable.
17. Such Presenting Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the Corporation upon
Settlement).
18. Whether such Certificated Note is issued at an original issue discount
("OID"), and, if so, the total amount of OID, the yield to maturity
and the initial accrual period of OID.
19. Other provisions, if appropriate.
B. The Corporation will confirm the above Settlement information to the
Authenticating Agent by telex or facsimile. If the Corporation rejects an offer,
the Corporation will promptly notify such Presenting Agent by telephone.
C. The Authenticating Agent will assign a Note number to the transaction
and will complete the first page of the preprinted 4-ply Note packet the form of
which was previously approved by the Corporation, the Agents and the
Authenticating Agent.
<PAGE>
EXHIBIT B
---------
Page 21
D. The Authenticating Agent will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to such Presenting Agent. Such
Presenting Agent will acknowledge receipt of the Note by completing the yellow
stub and returning it to the Authenticating Agent.
E. Such Presenting Agent will cause to be wire transferred to a bank
account designated by the Corporation immediately available funds in U.S.
Dollars in the amount of the principal amount of the Note, less the applicable
commission or discount, if any.
F. Such Presenting Agent will deliver the Note (with the attached white
confirmation) to the purchaser against payment in immediately available funds in
the amount of the principal amount of the Note. Such Presenting Agent will
deliver to the purchaser a copy of the most recent Prospectus applicable to the
Note with or prior to any written offer of Notes, delivery of the Note and the
confirmation and payment by the purchaser for the Note.
G. Such Presenting Agent will obtain the acknowledgment of receipt for the
Note and Prospectus by the purchaser through the purchaser's completion of the
blue stub.
H. The Authenticating Agent will mail the pink stub to the Corporation's
Treasurer.
Settlement Procedures Timetable for Certificated Notes
- ------------------------------------------------------
For offers accepted by the Corporation, Settlement Procedures "A" through
"H" set forth above shall be completed on or before the respective times set
forth below:
Settlement
Procedure Time (New York)
--------- ---------------
A 5:00 P.M. on date of order
B 3:00 P.M. on the Business Day prior to Settlement
date
C-D 12:00 noon on the Settlement date
E 2:15 P.M. on the Settlement date
F-G 3:00 P.M. on the Settlement date
H 5:00 P.M. on Business Day after the Settlement
date
<PAGE>
EXHIBIT B
---------
Page 22
Failure
- -------
In the event that a purchaser of a Note shall either fail to accept
delivery of or make payment for such Note on the date fixed by the Corporation
for Settlement, such Presenting Agent will immediately notify the Authenticating
Agent and the Corporation's Treasurer by telephone, confirmed in writing, of
such failure and return the Note to the Authenticating Agent. Upon the
Authenticating Agent's receipt of the Note from such Presenting Agent, the
Corporation will promptly return to such Presenting Agent an amount of
immediately available funds in U.S. Dollars equal to any amount previously
transferred to the Corporation in respect of the Note pursuant to advances made
by such Presenting Agent. Such returns will be made on the Settlement date, if
possible, and in any event not later than 12:00 noon (New York City time) on the
Business Day following the Settlement date. The Corporation will reimburse such
Presenting Agent on an equitable basis for its loss of the use of the funds
during the period when the funds were credited to the account of the
Corporation. Upon receipt of the Note in respect of which the default occurred,
the Authenticating Agent will mark the Note "canceled," make appropriate entries
in its records and deliver the Note to the Corporation with an appropriate debit
advice. Such Presenting Agent will not be entitled to any commission with
respect to any Note which the purchaser does not accept or make payment for.
<PAGE>
EXHIBIT C
---------
PURCHASE AGREEMENT
------------------
___________, 19__
Bankers Trust New York Corporation
130 Liberty Street
New York, NY 10006
Attention: _____________________
The undersigned agrees to purchase the following principal amount of the
Notes described in the Distribution Agreement dated October 1,1997 (as it may be
supplemented or amended from time to time, the "Distribution Agreement"):
Principal Amount [$]_________________________
[Stated Maturity: ___________________________]
Specified Currency: ___________________________
Interest Rate: _______%
Discount: _______% of Principal Amount
Aggregate Price to be
paid to the Corporation (in
immediately available
funds): [$]_________________________
Settlement Date: ____________________________
Other Terms: ____________________________
[In the case of Notes issued in a foreign currency or currency unit, unless
otherwise specified below, settlement and payments of principal and interest
will be in U.S. Dollars based on the highest bid quotation in The City of New
York received by the Exchange Rate Agent at approximately 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date from
three recognized foreign exchange dealers (one of which may be the Exchange Rate
Agent) for the purchase by the quoting dealer of the Specified Currency for U.S.
Dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all holders of Notes denominated in such Specified
Currency electing to receive U.S. Dollar payments and at which the applicable
dealer commits to execute a contract. If such bid quotations are not available,
payments will be made in the Specified Currency.]
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Distribution Agreement and not otherwise defined herein shall
have the
<PAGE>
EXHIBIT C
Page 2
meanings set forth in the Distribution Agreement. The terms "Agent" or
"Agents," as used in the Distribution Agreement, shall be deemed to refer to the
undersigned Purchaser[s].
Our obligation to purchase Notes hereunder is subject to the accuracy, as
of the date hereof and as of the Settlement Date, of your representations and
warranties contained in Section 1 of the Distribution Agreement and to your
performance and observance of all applicable covenants and agreements contained
therein, including, without limitation, your obligations pursuant to Section 7
thereof. Our obligation hereunder is subject to the further condition that we
shall receive (a) the opinions required to be delivered pursuant to Sections
5(e), 5(f) and 5(h) of the Distribution Agreement, (b) the certificate required
to be delivered pursuant to Section 5(g) of the Distribution Agreement, and (c)
the letter referred to in Section 5(g) of the Distribution Agreement in each
case dated as of the above Settlement Date and (d) [insert other conditions as
appropriate].
We may terminate this Agreement, upon notice to you, if prior to the
Settlement Date (i) trading in securities generally on the New York Stock
Exchange, Inc. shall have been suspended or materially limited; (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by Federal or New York State authorities; or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in our reasonable judgment, impracticable to market the Notes. In the event
of such termination, no party shall have any liability to the other party
hereto, except as provided in Sections 4, 7 and 13 of the Distribution
Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of New York.
[PURCHASER]
By:____________________________
Name:
Title:
ACCEPTED: , 19__
BANKERS TRUST NEW YORK CORPORATION
By:_______________________________________
Name:
Title:
<PAGE>
EXHIBIT D
---------
[INDEXED NOTE]
AMENDMENT NO. ___
TO DISTRIBUTION AGREEMENT DATED ________ __, 1997, AS AMENDED
[Insert Title of the Denominated
and Indexed Currencies]
The undersigned hereby agree[s] that for the purposes of the issue and sale
of Notes denominated in [title of currency or currency unit] (the "Denominated
Currency") and indexed to [title of currency or currency unit] (the "Indexed
Currency") pursuant to the Distribution Agreement, dated ________ __, 19__ as it
may be amended (the "Distribution Agreement"), the following additions and
modifications shall be made to the Distribution Agreement. The additions and
modifications adopted hereby shall be of the same effect for the sale under the
Distribution Agreement of all Notes denominated in the Denominated Currency and
indexed to the Indexed Currency, whether offered on an agency or principal
basis, but shall be of no effect with respect to Notes denominated in any
currency or currency unit other than the Applicable Foreign Currency.
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Distribution Agreement shall have the same meanings as in the
Distribution Agreement. The term Agents, as used in the Distribution Agreement,
shall be deemed to refer to the undersigned Agents for purposes of this
Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
BANKERS TRUST NEW YORK
CORPORATION
By:______________________
Name:
Title:
[PURCHASERS]
By:______________________
Name:
Title:
<PAGE>
EXHIBIT 4.1
REGISTERED NO.: CUSIP NO.:
[Face of Note]
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co., or 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 ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
This Note is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Note is exchangeable for Notes registered in the
name of a Person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in such limited
circumstances.
THIS NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
BANKERS TRUST NEW YORK CORPORATION
SENIOR MEDIUM-TERM NOTE, SERIES A
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
(Fixed Rate Note)
GLOBAL NOTE
The following summary of terms is subject to
the information set forth on the reverse hereof:
<TABLE>
<CAPTION>
<S> <C>
Principal Amount: $_____________ Optional Extensions of Stated Maturity by the
Corporation: [_] Yes [_] No
Issue Price: ___% Extension Period: ___________________
Number of Extension Periods: ________
Agent's Commission, if applicable: ____% Final Maturity Date: ________________
Original Issue Date: _______________
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Repurchase Price: ____%
Stated Maturity: (For Discount Securities)
Interest Rate: ____% per annum Optional Redemption at the Option of the
Corporation: [_] Yes [_] No
Interest Payment Dates : Initial Redemption Date:_______________________
[_] Each June 15 and December 15 Initial Redemption Percentage:_________________
[_] Other: Annual Redemption Percentage Reduction:________
Each ____________________________________
_________________________________________ _______________________________________________
Commencing: _____________________________
Optional Repayment at the Option of the
Regular Record Dates (if other than as Holder: [_] Yes [_] No
specified below): Each __________________ Optional Repayment Dates:______________________
_________________________________________ _______________________________________________
Optional Interest Reset by Corporation: Optional Repayment Prices:_____________________
[_] Yes [_] No _______________________________________________
Optional Interest Reset Dates:___________
_________________________________________
(see attached annex for details) Amortizing Note: [_] Yes [_] No
Original Issue Discount Note: [_] Yes [_] No Basis or formula for amortization of principal
Yield to Maturity:_______________________ and/or interest of Note:______________________
OID for U.S. Federal Income Tax Purposes: Payment dates for amortization:
_________________________________________ [_] Each March 15, June 15, September 15 and
December 5
Specified Currency (check one; if other than [_] Each June 15 and December 15
U.S. Dollars, see attached for exchange rate [_] Other: Each_______________________________
and other information):
[_] U.S. Dollars (USD or U.S.$) Currency Indexed Note: [_] Yes [_] No
[_] European Currency Units (ECU) Currency I:______________________________
[_] Australian Dollars (AUD or AUS$) Currency II:_____________________________
[_] British Pound (GBP or UK (Pounds)) Base Exchange Rate:______________________
[_] Canadian Dollars (CAD or CAN$) Leverage Factor "_":_____________________
[_] German Marks (DEM or DM) Principal Indexed: [_] Yes [_] No
[_] Italian Lire (ITL or Lire) [_] Principal to increase when Spot Rate exceeds
[_] Japanese Yen (JPY or (Yen)) Base Rate and decrease when Spot Rate is
[_] Swiss Francs (CHF or SWFr) less than Base Exchange Rate.
[_] Other [_] Principal to decrease when Spot Rate
exceeds Base Exchange Rate and increase
Holder has Option to Elect Payments in when Spot Rate is less than Base Exchange
Specified Currency (if Specified Currency is Rate.
Interest Indexed: [_] Yes [_] No
[_] Interest to increase when Spot Rate exceeds
Base Exchange Rate and increase when Spot
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
Rate is less than Base Exchange Rate.
not U.S. Dollars):
[_] Yes [_] No [_] Interest to decrease when Spot Rate exceeds
Base Exchange Rate and increase when Spot
Authorized Denominations (if other than Rate is less than Base Exchange Rate.
$1,000 and any integral multiple thereof or if Commodity Indexed Note (if yes, see attached
Specified Currency is not U.S. Dollars): annex for additional information): [_] Yes [_] No
$_______
Calculation Agent (if other than Bankers Trust
Company): ___________________________________
Other Provisions:
Annex Attached: [_] Yes [_] No
(and incorporated herein by reference)
</TABLE>
BANKERS TRUST NEW YORK CORPORATION, a corporation duly organized and
existing under the laws of the State of New York (herein called the
"Corporation", which term includes any successor under the Indenture referred to
on the reverse hereof), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the Principal Amount specified above, on the Stated
Maturity specified above, and to pay interest thereon at the Interest Rate or
Rates specified above from and including the Original Issue Date specified above
or from and including the most recent Interest Payment Date specified above to
which interest has been paid or duly provided for, as the case may be, until the
Principal Amount is paid or made available for payment.
Interest will be paid on the Interest Payment Date or Dates specified
above, commencing with the first such Interest Payment Date next succeeding the
Original Issue Date (except as provided below), until the principal hereof is
paid or made available for payment, and at Maturity. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will be paid
to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the Regular Record Date specified above
next preceding such Interest Payment Date; provided, however, that the first
payment of interest on any Note originally issued between a Regular Record Date
and the related Interest Payment Date shall be made on the second Interest
Payment Date following the Original Issue Date to the Person in whose name this
Note is registered on the Regular Record Date relating to such second Interest
Payment Date. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder of such Note on such Regular Record Date and may either be paid to
the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed (after receipt of notice from the
Corporation of a proposed payment of defaulted interest) by the Trustee (as
hereinafter defined), notice of which shall be given to the Holders of Notes not
less than 10 calendar days preceding such Special Record Date, or may be paid in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Notwithstanding the foregoing, interest payable at maturity shall be payable to
the person to whom the Principal Amount hereof is payable.
3
<PAGE>
Except as provided on the face hereof and in Section 9 on the reverse
of this Note, payments of principal of, and premium, if any, and interest on,
this Note shall be made against surrender of this Note at the Corporate Trust
Office of the Trustee, or at such other office or agency of the Corporation as
may be designated by it for such purpose in the Borough of Manhattan, The City
of New York, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts; provided, however, that, at the option of the Corporation, payments of
interest may be made by check or wire transfer mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
THIS NOTE SHALL NOT BE VALID OR OBLIGATORY FOR ANY PURPOSE UNTIL THE
CERTIFICATE OF AUTHENTICATION HEREON SHALL HAVE BEEN SIGNED BY THE MANUAL
SIGNATURE OF AN AUTHORIZED OFFICER OF THE TRUSTEE UNDER THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF OR BY THE MANUAL SIGNATURE OF AN AUTHORIZED OFFICER OF
THE AUTHENTICATION AGENT ON BEHALF OF THE TRUSTEE.
4
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed.
Dated: BANKERS TRUST NEW YORK CORPORATION
By: ____________________________________
Name:
Title:
ATTEST:
_______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated herein issued under
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By: BANKERS TRUST COMPANY, as Authenticating Agent
By: ____________________________________
Authorized Signatory
5
<PAGE>
[Reverse of Note]
SECTION 1. General. This Note is one of a duly authorized issue of
-------
notes of the Corporation (the "Notes") constituting part of the series of
Securities (as defined in the Indenture referred to below) designated on the
face hereof, issued or to be issued under the Indenture, dated as of November 1,
1991, as supplemented by the First Supplemental Indenture, dated as of September
1, 1993, and as further supplemented by the Second Supplemental Indenture, dated
as of October 1, 1997, thereto (collectively, the "Indenture"), duly executed
and delivered by the Corporation to The Chase Manhattan Bank (formerly The Chase
Manhattan Bank (National Association)), as Trustee, to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Corporation and the Holders of the Securities. The
Securities of this series may be issued in various aggregate principal amounts,
may mature at different times, may bear interest at different rates, may be
subject to different redemption provisions, may be subject to different sinking,
purchase or analogous funds and may otherwise vary as provided in the Indenture.
SECTION 2. Paying Agent, Calculation Agent and Security Registrar.
------------------------------------------------------
Initially, Bankers Trust Company will act as Paying Agent, Calculation Agent and
Security Registrar (each as defined below). The Corporation may change any
Paying Agent, Calculation Agent, Security Registrar or co-registrar without
notice. The Corporation may act in any such capacity. If there shall cease to be
a Paying Agent, references herein to the Paying Agent shall be deemed to be
references to the Trustee.
SECTION 3. Denominations, Transfer, Exchange. The Notes are issuable
---------------------------------
in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000 in excess thereof or, if another authorized denomination is
specified on the face hereof, in such other authorized denomination. The
transfer of Notes will be registered and Notes may be exchanged as provided in
the Indenture. The Security Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
SECTION 4. Persons Deemed Owners. The Corporation, the Trustee and
---------------------
any agent of the Corporation or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for the purpose of receiving payment
as herein provided and for all other purposes, whether or not this Note be
overdue, and neither the Corporation, the Trustee nor any agent of the
Corporation or the Trustee shall be affected by notice to the contrary.
SECTION 5. Amendments and Waivers. The Indenture permits, with
----------------------
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Corporation and the rights of
the Holders of the Securities of each series to be affected under the Indenture
at any time by the Corporation and the Trustee with the consent of the Holders
of at least 66-2/3% in principal amount of the Securities at the time
outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time outstanding, on behalf of 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
6
<PAGE>
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such waiver is made upon this Security.
SECTION 6. Defaults and Remedies. If an Event of Default with
---------------------
respect to the Notes occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Notes may declare all the Notes to be due
and payable immediately. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
waive an Event of Default and rescind any related declaration and also may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Notes notice of any continuing Event of Default if it
determines that withholding notice is in their interests.
SECTION 7. Interest Rate Calculations; Payments. Unless otherwise
------------------------------------
specified on the face hereof, interest on this Note will accrue from and
including the date of issue or from and including the immediately preceding
Interest Payment Date in respect of which interest has been paid or duly
provided for, as the case may be, to but excluding the Interest Payment Date or
the Maturity, as the case may be. Unless otherwise specified on the face
hereof, interest on this Note shall be computed on the basis of a 360-day year
of twelve 30-day months.
If any Interest Payment Date or the Maturity for this Note is a day
that is not a Business Day, all payments to be made on such day will be made on
the next succeeding Business Day with the same force and effect as if made on
the due date, and no additional interest shall be payable as a result of such
delay in payment.
SECTION 8. Amortizing Notes. Unless otherwise specified on the face
----------------
hereof, if this Note is an Amortizing Note, as specified on the face hereof,
payments with respect to this Note will be applied first to interest due and
payable hereon and then to the reduction of the unpaid principal amount hereof.
If this Note is an Amortizing Note, a table setting forth repayment information
in respect of this Note will be provided to the original purchaser hereof and
will be available, upon request, to subsequent Holders.
SECTION 9. Currency of Payment. Unless otherwise specified on the
-------------------
face hereof, the principal of, and any premium and interest on, this Note shall
be payable by the Corporation in the Specified Currency for this Note. Unless
otherwise specified on the face hereof, if the Specified Currency for this Note
is other than U.S. Dollars, (i) the Corporation shall (unless otherwise
specified on the face hereof) arrange to convert all payments in respect of this
Note into U.S. Dollars in the manner described in the following paragraph; and
(ii) the Holder of this Note may (unless otherwise specified on the face hereof)
elect to receive all payments in respect of this Note in the Specified Currency
by delivering a written notice to the Paying Agent for such Note not later than
fifteen calendar days prior to the applicable payment date, except under the
circumstances described below. Such election shall remain in effect until
revoked by written notice to such Paying Agent received not later than fifteen
calendar days prior to the applicable payment date.
If the Specified Currency of this Note is other than U.S. Dollars, the
amount of any U.S. Dollar payment in respect of this Note will be determined by
the calculation agent selected by the Corporation (the "Calculation Agent")
based on the highest firm bid quotation expressed in U.S. Dollars received by
the Calculation Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date (or, if no such rate
is quoted on such date, the last date on which such rate was quoted), from
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<PAGE>
three (or, if three are not available, then two) recognized foreign exchange
dealers in The City of New York (one of which may be an Agent (as such term is
used in the Distribution Agreement dated October 1, 1997 relating to the Notes)
and another of which may be the Calculation Agent) agreed upon by the
Corporation and the Calculation Agent, for the purchase by the quoting dealer,
for settlement on such payment date, of the aggregate amount of such Specified
Currency payable on such payment date in respect of all Notes denominated in
such Specified Currency (such rate, the "Market Exchange Rate"). All currency
exchange costs will be borne by the Holders of such Notes by deductions from
such payments. If fewer than two such bid quotations are available, such
payments will be made in such Specified Currency, unless such Specified Currency
is unavailable due to the imposition of exchange controls or to other
circumstances beyond the Corporation's control or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, in which case such payments shall be made as described below.
Except as specified in the following paragraphs, if payment in respect
of this Note is required to be made in a Specified Currency other than U.S.
Dollars and such currency is unavailable due to the imposition of exchange
controls or other circumstances beyond the Corporation's control or is no longer
used by the government of the country issuing such currency or for the
settlement of transactions by public institutions of or within the international
banking community, then all payments in respect of this Note shall be made in
U.S. Dollars; provided that the Corporation, at its option, may resume making
payments in such currency once such currency is again available or so used. The
amounts so payable on any date in such currency shall be converted into U.S.
Dollars on the basis of the most recently available Market Exchange Rate for
such currency or as otherwise indicated on the face hereof. Any payment in
respect of this Note made under such circumstances in U.S. Dollars will not
constitute an Event of Default under the Indenture.
If payment in respect of this Note is required to be made in ECUs and
ECUs are no longer used in the European Monetary System, then all payments in
respect of this Note shall be made in U.S. Dollars, provided that the
Corporation, at its option, may resume making payments in ECUs once ECUs are
again so used. The amount of each payment in U.S. Dollars shall be computed on
the basis of the equivalent of ECUs in U.S. Dollars, determined as described
below, as of the second Business Day prior to the date on which such payment is
due.
The equivalent of ECU in U.S. Dollars as of any date shall be
determined by the Calculation Agent on the following basis. The component
currencies of ECU for this purpose (the "Components") shall be the currency
amounts that were components of ECU as of the last date on which ECU were used
in the European Monetary System. The equivalent of ECU in U.S. Dollars shall be
calculated by aggregating the U.S. Dollar equivalents of the Components. The
U.S. Dollar equivalent of each Component shall be determined by the Calculation
Agent on the basis of the most recently available Market Exchange Rates for such
Components or as otherwise specified on the face hereof.
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more component
currencies are consolidated into a single currency, the amounts of those
currencies as Components shall be replaced by an amount in such single currency
equal to the sum of the amounts of the consolidated component currencies
expressed in such single currency. If any component currency is divided into two
or more currencies, the amount of that currency as a Component shall be replaced
by amounts of
8
<PAGE>
such two or more currencies, each of which shall be equal to the amount of the
former component currency divided by the number of currencies into which that
currency was divided.
All determinations referred to above made by the Calculation Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holders of this Note.
SECTION 10. Currency Indexed Notes. If it is specified on the face
----------------------
hereof that this Note is a Currency Indexed Note, then unless otherwise
specified on the face hereof, the principal of, and any premium and interest on,
this Note will be calculated in the manner described below.
If it is specified on the face hereof that the principal of this Note
is indexed, then unless otherwise specified on the face hereof, principal at
Maturity of this Note will be payable in an amount equal to the Principal Amount
of this Note, plus or minus an amount determined by reference to the difference
between the Base Exchange Rate specified on the face hereof, and the rate (the
"Spot Rate") at which Currency I specified on the face hereof can be exchanged
for Currency II specified on the face hereof on the second Business Day prior to
the Maturity of this Note (the "Indexed Principal Determination Date"), as
determined by the Calculation Agent. If it is specified on the face hereof that
the interest on this Note is indexed, then unless otherwise specified on the
face hereof, the interest payable on any Interest Payment Date or at Maturity
will be payable in an amount equal to the stated interest rate of this Note,
plus or minus a rate adjustment determined by reference to the difference
between the Base Exchange Rate specified on the face hereof, and the Spot Rate
on the second Business Day prior to the applicable Interest Payment Date or the
Maturity of this Note (the "Indexed Interest Determination Date") as determined
by the Calculation Agent, applied to the average Principal Amount outstanding of
such Note for the period being measured. For the purpose of this section, the
Spot Rate on the Indexed Principal Determination Date or the Indexed Interest
Determination Date, as the case may be, will be the average of quotations for
settlement on the date of Maturity or the relevant Interest Payment Date, as the
case may be, obtained by the Calculation Agent from three (or if three are not
available, then two) Currency Dealers in The City of New York (which may include
the Calculation Agent and/or one or more of the Agents) at approximately 11:00
A.M., New York City time, on the Indexed Principal Determination Date or the
relevant Indexed Interest Determination Date, as the case may be. If so
specified on the face hereof, the rate adjustment may also be determined by
reference to a leverage factor ("L") specified on the face hereof.
Unless otherwise specified on the face hereof, the formulas to be used
by the Calculation Agent to determine the principal and/or the interest payable
at Maturity or on any Interest Payment Date will be as follows:
Principal
A. If it is specified on the face hereof that principal is to increase
when the Spot Rate exceeds the Base Exchange Rate, and to decrease when the Spot
Rate is less than the Base Exchange Rate, the formula to determine the principal
of a Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x L x [Spot Rate-Base Exchange Rate])
-------------------------------
Spot Rate
9
<PAGE>
However, in no event will the principal payable at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will sell
Currency I in exchange for a single unit of Currency II on the Indexed Principal
Determination Date.
B. If it is specified on the face hereof that principal is to increase
when the Base Exchange Rate exceeds the Spot Rate, and to decrease when the Base
Exchange Rate is less than the Spot Rate, the formula to determine the principal
amount of a Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x L x [Base Exchange Rate-Spot Rate])
-------------------------------
Spot Rate
However, in no event will the principal payable at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will purchase
Currency I in exchange for a single unit of Currency II on the Indexed Principal
Determination Date.
Interest
A. If it is specified on the face hereof that interest is to increase
when the Spot Rate exceeds the Base Exchange Rate, and to decrease when the Spot
Rate is less than the Base Exchange Rate, the formula to determine the rate at
which interest is payable on any Interest Payment Date or at Maturity on a
Currency Indexed Note shall equal:
Stated Interest Rate + (L x [Spot Rate-Base Exchange Rate])
-------------------------------
Spot Rate
However, in no event will the interest payable on any Interest Payment Date or
at Maturity to be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will sell
Currency I in exchange for a single unit of Currency II on the Indexed Interest
Determination Date.
B. If it is indicated on the face hereof that interest is to increase
when the Base Exchange Rate exceeds the Spot Rate, and to decrease when the Base
Exchange Rate is less than the Spot Rate, the formula to determine the Rate at
which interest is payable on any Interest Payment Date or at Maturity on a
Currency Indexed Note shall equal:
Stated Interest Rate + (L x [Base Exchange Rate-Spot Rate])
-------------------------------
Spot Rate
However, in no event will the interest payable on any Interest Payment Date or
at Maturity be less than zero.
10
<PAGE>
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will purchase
Currency I in exchange for a single unit of Currency II on the Indexed Interest
Determination Date.
SECTION 11. Redemption. If so specified on the face hereof, this
----------
Note may be redeemed at the option of the Corporation as a whole or from time to
time in part, on or after the date designated as the Initial Redemption Date on
the face hereof, in whole or from time to time in part in increments of $1,000
or the minimum denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be an authorized denomination), at the
Redemption Price (as defined below). The "Redemption Price" shall be equal to
the sum of (i) the Initial Redemption Percentage specified on the face hereof,
(as adjusted by the Annual Redemption Percentage Reduction, if any, specified on
the face hereof) multiplied by the principal amount hereof to be redeemed, plus
(ii) the unpaid interest accrued on the Principal Amount hereof to be redeemed
to the date of redemption, provided that interest installments that are due on
or prior to the date of redemption will be payable to the Holder of this Note at
the close of business on the relevant Regular Record Date referred to on the
face hereof, as provided in the Indenture. The Initial Redemption Percentage, if
any, applicable to this Note shall decline on each anniversary of the Initial
Redemption Date by an amount equal to the Annual Redemption Percentage
Reduction, if any, specified on the face hereof, until the Redemption Price is
equal to 100% of the unpaid Principal Amount hereof or the portion thereof to be
redeemed.
The Corporation may exercise such option by causing the security
registrar for this Note (the "Security Registrar") to mail a notice of such
redemption not more than 60 nor less than 30 calender days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
SECTION 12. Repayment. If so specified on the face hereof, this Note
---------
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note to be repaid prior to
Stated Maturity at the Option of the Holder, the Security Registrar must receive
at least 30 but not more than 45 calendar days prior to an Optional Repayment
Date (i) this Note with the form below entitled "Option to Elect Repayment" duly
completed or (ii) a telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States of America setting forth the name of
the Holder of this Note, the Principal Amount of this Note, the Principal Amount
of the Note to be repaid, the certificate number or a description of the tenor
and terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee by a commercial bank, a trust company or by a
member of the New York Stock Exchange which is a member of an approved signature
guarantee medallion program pursuant to Securities and Exchange Commission Rule
17Ad-15 that this Note with the form below entitled "Option to Elect Repayment"
duly completed will be received by the Security Registrar not later than three
Business Days after the date of such telegram, telex, facsimile transmission,
hand delivery or letter (first class, postage prepaid). If the procedure
described in clause (ii) of the preceding sentence is followed, this Note with
such form duly completed must be received by the Security Registrar by such
third Business Day. Exercise of the repayment option by the Holder of this Note
shall be irrevocable, except that a Holder who has tendered this Note for
repayment may revoke any such tender for repayment by written notice to
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<PAGE>
the Security Registrar received prior to the close of business on the tenth
calendar day prior to the repayment date. The repayment option may be exercised
by the Holder of this Note for less than the entire Principal Amount of this
Note provided that the Principal Amount of this Note remaining outstanding after
such repayment is an authorized denomination. Upon such partial repayment, this
Note shall be canceled and a new Note or Notes for the remaining Principal
Amount hereof shall be issued in the name of the Holder of this Note.
SECTION 13. Optional Interest Reset. If so specified on the face
-----------------------
hereof, the Interest Rate on this Note may be reset by the Corporation on the
date or dates or on the basis specified on the face hereof (each an "Optional
Interest Reset Date"). The Corporation may exercise such option by notifying the
Security Registrar of such exercise at least 45 but not more than 60 calendar
days prior to any Optional Interest Reset Date. If the Corporation so notifies
the Security Registrar of such exercise, the Security Registrar will send, not
later than 40 calendar days prior to each Optional Interest Reset Date, by
telegram, telex, facsimile transmission, hand delivery or letter (first class,
postage prepaid) to the Holder of this Note a notice (the "Reset Notice")
indicating (i) that the Corporation has elected to reset the Interest Rate, (ii)
such new Interest Rate and (iii) the provisions, if any, for redemption during
the period from such Optional Interest Reset Date to the next Optional Interest
Reset Date or, if there is no such next Optional Interest Reset Date, to the
Stated Maturity of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior
to an Optional Interest Reset Date, the Corporation may, at its option, revoke
the change in the Interest Rate provided for in the Reset Notice and establish a
higher Interest Rate for the Subsequent Interest Period commencing on such
Optional Interest Reset Date by causing the Security Registrar to send by
telegram, telex, facsimile transmission, hand delivery or letter (first class,
postage prepaid) notice of such Interest Rate resulting in a higher interest
rate to the Holder of this Note. Such notice shall be irrevocable. All Notes
with respect to which the Interest Rate is reset on an Optional Interest Reset
Date will bear such Interest Rate, whether or not tendered for repayment as
provided in the next paragraph.
If the Corporation elects prior to an Optional Interest Reset Date to
reset the Interest Rate on this Note, the Holder of this Note will have the
option to elect repayment of this Note by the Corporation on such Optional
Interest Reset Date at a price equal to the Principal Amount hereof plus
interest accrued and unpaid thereon to such Optional Interest Reset Date. In
order to obtain repayment on an Optional Interest Reset Date, the Holder must
follow the procedures specified under Section 12 for optional repayment except
that the period for delivery or notification to the Security Registrar shall be
at least 25 but not more than 35 calendar days prior to such Optional Interest
Reset Date. If the Holder has tendered this Note for repayment following receipt
of a Reset Notice, the Holder may revoke such tender for repayment by written
notice to the Security Registrar received prior to 5:00 P.M., New York City
time, on the tenth calendar day prior to such Optional Interest Reset Date.
SECTION 14. Optional Extension of Maturity. If so specified on the
------------------------------
face hereof, the Stated Maturity of this Note may be extended at the option of
the Corporation for a period or periods of from one to five whole years each, as
specified on the face hereof (each, an "Extension Period") up to but not beyond
the date (the "Final Maturity Date") specified on the face hereof. The
Corporation may exercise such option with respect to this Note by notifying the
Security Registrar of such exercise at least 45 but not more than 60
12
<PAGE>
calendar days prior to the Stated Maturity of this Note in effect prior to the
exercise of such option (the "Original Stated Maturity Date"). If the
Corporation so notifies the Security Registrar of such exercise, the Security
Registrar will send, not later than 40 calendar days prior to the Original
Stated Maturity Date, by telegram, telex, facsimile transmission, hand delivery
or letter (first class, postage prepaid) to the Holder of this Note, a notice
(the "Extension Notice") indicating (i) that the Corporation has elected to
extend the Stated Maturity of this Note, (ii) the new Stated Maturity, (iii) the
Interest Rate applicable to the Extension Period and (iv) the provisions, if
any, for redemption during such Extension Period, including the date or dates on
which or the period or periods during which and the price or prices at which
such redemption may occur during such Extension Period. Upon the Security
Registrar's sending of the Extension Notice, the Stated Maturity of this Note
shall be extended automatically and, except as modified by the Extension Notice
and as described in the next two paragraphs, this Note will have the same terms
as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior
to the Original Stated Maturity Date of this Note, the Corporation may, at its
option, revoke the change in the Interest Rate provided for in the Extension
Notice and establish a Interest Rate for the Extension Period by causing the
Security Registrar to send by telegram, telex, facsimile transmission, hand
delivery or letter (first class, postage prepaid) notice of such Interest Rate
to the Holder of this Note. Such notice shall be irrevocable. All Notes with
respect to which the Stated Maturity is extended will bear such Interest Rate
for the Extension Period, whether or not tendered for repayment as provided in
the next paragraph.
If the Corporation elects to extend the Stated Maturity of this Note,
the Holder will have the option to elect repayment of this Note by the
Corporation on the Original Stated Maturity Date at a price equal to the
Principal Amount hereof, plus interest accrued and unpaid thereon to such date.
In order to obtain repayment on the Original Stated Maturity Date, the Holder
must follow the procedures specified under Section 12 for optional repayment,
except that the period for delivery or notification to the Security Registrar
shall be at least 25 but not more than 35 calendar days prior to the Original
Stated Maturity Date. A Holder who has tendered this Note for repayment
following receipt of an Extension Notice may revoke such tender for repayment by
written notice to the Security Registrar received prior to 5:00 P.M., New York
City time, on the tenth calendar day prior to the Original Stated Maturity Date.
SECTION 15. Sinking Fund. This Note will not be subject to any
------------
sinking fund.
SECTION 16. Original Issue Discount Notes. Notwithstanding anything
-----------------------------
herein to the contrary, unless otherwise specified on the face hereof, if it is
specified on the face hereof that this Note is an Original Issue Discount Note,
the amount payable if the Principal Amount hereof is declared to be due and
payable prior to the Stated Maturity hereof by reason of an Event of Default, or
if this Note is redeemed or repaid prior to the Stated Maturity hereof, shall be
the Amortized Face Amount (as defined below) of this Note as of the date of
declaration, redemption or repayment, as the case may be. The "Amortized Face
Amount" of this Note shall be the amount equal to (i) the Principal Amount of
this Note multiplied by the Issue Price specified on the face hereof plus (ii)
that portion of the difference between the dollar amount determined pursuant to
the preceding clause (i) and the Principal Amount hereof that has accreted at
the Yield to Maturity specified on the face hereof (computed in accordance with
generally accepted United States bond yield computation principles) to such date
of declaration, redemption or payment, but in no event shall the Amortized Face
Amount of this Note exceed its Principal Amount.
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SECTION 17. Defined Terms. Unless otherwise defined herein, all
-------------
capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture; and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Notes.
As used herein, "Business Day" means, unless otherwise specified on the face
hereof, any Monday, Tuesday, Wednesday, Thursday or Friday (i) that is not a day
on which banking institutions are authorized or required by law, regulation or
executive order to close in any of The City of New York, the Principal Financial
Center of the Specified Currency of this Note or, if interest on this Note is
payable in a currency or currency unit other than such Specified Currency (the
"Interest Currency"), the Principal Financial Center of such Interest Currency
or that, if the Specified Currency or Interest Currency is the European Currency
Unit (the "ECU"), is an ECU Business Day (as defined below). "ECU Business Day"
means any day other than a day designated as an ECU Non-Settlement Day by the
ECU Banking Association in Paris or otherwise generally regarded in the ECU
interbank market as a day on which payments on ECUs shall not be made.
SECTION 18. Calculations. All percentages resulting from any
------------
calculations under this Note will be rounded, if necessary, to the nearest one
hundred thousandth of a percentage point (with five one-millionths of a
percentage point being rounded upward) and all currency or currency units or
dollar amounts used in or resulting from any such calculation in respect of the
Notes will be rounded to the nearest one-hundredth of a unit (with five one-
thousandths being rounded upward) or nearest cent (with one-half cent being
rounded upward), as the case may be.
SECTION 19. Trustee Dealings with Corporation. Subject to Sections
---------------------------------
608 and 613 of the Indenture, the Trustee, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Corporation or its affiliates, and may otherwise deal with the Corporation or
its affiliates, as if it were not the Trustee.
SECTION 20. No Recourse Against Others. A director, officer,
--------------------------
employee or stockholder, as such, of the Corporation shall not have any
liability for any obligations of the Corporation under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of Notes by accepting this Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 21. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
14
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights.]
The undersigned owner of this Note hereby irrevocably elects to have
the Corporation repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 12 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be repaid pursuant to Section 13 hereof, or to the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 14 hereof. Specified
below is the denomination or denominations (which shall be $1,000 or an integral
multiple thereof in excess thereof or, if the Note is denominated in a currency
other than U.S. Dollars, an Authorized Denomination) of the Note or Notes to be
issued to the Holder for the portion of the within Note not being repaid (in the
absence of any specification, one such Note will be issued for the portion not
being repaid):
__________________________________ ______________________________________
Dated: ___________________________ Signature
Sign exactly as name appears on the
front of this Note.
Principal Amount to be repaid if Indicate address where check is to be
amount to be repaid is less than the sent:
entire Principal Amount of this Note _______________________________________
(the Principal Amount remaining must be _______________________________________
an authorized denomination) _______________________________________
$_____________________________
(which shall be an integral multiple of
$1,000 or, if another authorized
denomination is specified on the SOCIAL SECURITY OR OTHER
face hereof under "Authorized TAXPAYER ID NUMBER
Denominations", an amount equal to
the minimum authorized denomination)). _______________________________________
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT Custodian
________________________________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
________________________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
16
<PAGE>
_____________________________________________________________________ the within
Note and all rights thereunder, hereby irrevocably constituting and appointing
_______________ attorney to transfer said Note on the books of the Corporation,
with full power of substitution in the premises.
Dated:_______________________ ____________________________________
Signature
Sign exactly as name appears on the front of
this Note (SIGNATURE MUST BE GUARANTEED by a
commercial bank, a trust company or by a
member of the New York Stock Exchange which
is a member of an approved signature
guarantee medallion program pursuant to
Securities and Exchange Commission Rule
17Ad-15).
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
17
<PAGE>
EXHIBIT 4.2
REGISTERED NO.: CUSIP NO.:
[Face of Note]
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co., or 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 ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
This Note is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Note is exchangeable for Notes registered in the
name of a Person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in such limited
circumstances.
THIS NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
BANKERS TRUST NEW YORK CORPORATION
SENIOR MEDIUM-TERM NOTE, SERIES A
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
(Floating Rate Note)
-----------
GLOBAL NOTE
-----------
The following summary of terms is subject to
the information set forth on the reverse hereof:
<TABLE>
<S> <C>
Principal Amount: $_____________ Specified Currency (check one; if other than U.S.
Dollars, see attached for exchange rate and other
Issue Price: ___% information):
[_] U.S. Dollars (USD or U.S.$)
Agent's Commission, if applicable: ____% [_] European Currency Units (ECU)
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Original Issue Date: _______________ [_] Australian Dollars (AUD or AUS$)
[_] British Pound (GBP or UK (Pounds))
Stated Maturity: _______________ (Specify [_] Canadian Dollars (CAD or CAN$)
Interest Payment Date that is to be Stated [_] German Marks (DEM or DM)
Maturity) [_] Italian Lire (ITL or Lire)
[_] Japanese Yen (JPY or (Yen))
Interest Rate Basis: (check one) [_] Swiss Francs (CHF or SWFr)
[_] CD Rate [_] Other ________________________
[_] CMT Rate (Designated CMT Telerate
page, if not 7052:__________) Holder has Option to Elect Payments in
[_] Commercial Paper Rate Specified Currency (if Specified Currency is not
[_] 11th District Cost of Funds Rate U.S. Dollars):
[_] Federal Funds Rate [_] Yes [_] No
[_] Kenny Rate
[_] LIBOR Authorized Denominations (if other than $1,000
[_] LIBOR Reuters and any integral multiple thereof or if Specified
[_] LIBOR Telerate Currency is not U.S. Dollars): $_______
Designated LIBOR Currency (if other
than U.S. Dollars):________________ Optional Extensions of Stated Maturity by the
[_] Prime Rate Corporation: [_] Yes [_] No
[_] Treasury Rate Extension Period: ____________________
[_] Other ________________________ Number of Extension Periods: _________
(see attached) Final Maturity Date: _________________
Initial Interest Rate: ___% Repurchase Price: ____%
(For Discount Securities)
Maximum Interest Rate: ___%
Optional Redemption at the Option of the
Maximum Interest Rate: ___% Corporation: [_] Yes [_] No
Initial Redemption Date: _______________
Spread: (+/-): ___bp Initial Redemption Percentage:__________
Annual Redemption Percentage
Spread Multiplier: ___% Reduction: _________________
Reset Periods: (Circle one) Optional Repayment at the Option of the
(Daily, Weekly, Monthly, Quarterly, Holder: [_] Yes [_] No
Semiannually or Annually) Optional Repayment Dates: _____________
_______________________________________
Interest Reset Dates (if other than as Optional Repayment Prices: ____________
specified below): Each __________________ _______________________________________
_________________________________________
Amortizing Note: [_] Yes [_] No
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
Interest Payment Dates: Each ______________ Basis or formula for amortization of principal
___________________________________________ and/or interest of Note: _________________
Commencing:________________________________ Payment rates for amortizations:
Regular Record Dates (if other than as [_] Each March 15, June 15, September 15 and
specified below): Each ___________________ December 15
___________________________________________ [_] Each June 15 and December 15
[_] Other: Each_____________________
Calculation Dates (if other than as
specified below): Each ___________________ Currency Indexed Note: [_] Yes [_] No
___________________________________________ Currency I: _________________
Currency II: _________________
Interest Determination Dates (if other than as Base Exchange Rate:___________
specified below): Each ___________________ Leverage Factor "L": __________
___________________________________________ Principal Indexed: [_] Yes [_] No
[_] Principal to increase when Spot Rate exceeds
Index Maturity: ___________________________ Base Exchange Rate and decrease when Spot
Rate is less than Base Exchange Rate.
Optional Interest Reset by Corporation: [_] Principal to decrease when Spot Rate
[_] Yes [_] No exceeds Base Exchange Rate and decrease
Optional Interest Reset Dates:____________ when Spot Rate is less than Base Exchange
___________________________________________ Rate.
(see attached annex for details) Interest Indexed: [_] Yes [_] No
[_] Interest to increase when Spot Rate exceeds
Original Issue Discount Note: [_] Yes [_] No Base Exchange Rate and decrease when Spot
Yield to Maturity:_________________________ Rate is less than Base Exchange Rate.
OID for U.S. Federal Income Tax Purposes: [_] Interest to decrease when Spot Rate exceeds
___________________________________________ Base Exchange Rate and increase when Spot
Rate is less than Base Exchange Rate.
Commodity Indexed Note (if yes, see attached
annex for additional information): [_] Yes [_] No
Calculation Agent (if other than Bankers Trust
Company): ________________________
Other Provisions:
Annex Attached: [_] Yes [_] No
(and incorporated herein by reference)
</TABLE>
BANKERS TRUST NEW YORK CORPORATION, a corporation duly organized and
existing under the laws of the State of New York (herein called the
"Corporation", which term includes any successor under the Indenture referred to
on the reverse hereof), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the Principal Amount specified above, on the Stated
Maturity specified above, and to
3
<PAGE>
pay interest thereon as provided herein from and including the Original Issue
Date specified above or from and including the most recent Interest Payment Date
specified above to which interest has been paid or duly provided for, as the
case may be, until the Principal Amount is paid or made available for payment.
Interest will be paid on the Interest Payment Date or Dates specified
above, at the rate per annum determined in accordance with the provisions on the
reverse hereof, commencing with the first such Interest Payment Date next
succeeding the Original Issue Date (except as provided below), until the
principal hereof is paid or made available for payment, and at Maturity. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the Regular Record
Date specified above next preceding such Interest Payment Date; provided,
however, that the first payment of interest on any Note originally issued
between a Regular Record Date and the related Interest Payment Date shall be
made on the second Interest Payment Date following the Original Issue Date to
the Person in whose name this Note is registered on the Regular Record Date
relating to such second Interest Payment Date. Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder of such Note on such Regular
Record Date and may either be paid to the Person in whose name this Note (or one
or more predecessor Notes) is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed (after
receipt of notice from the Corporation of a proposed payment of defaulted
interest) by the Trustee (as hereinafter defined), notice of which shall be
given to the Holders of Notes not less than 10 calendar days preceding such
Special Record Date, or may be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Notwithstanding the foregoing, interest
payable at maturity shall be payable to the person to whom the Principal Amount
hereof is payable.
Except as provided on the face hereof and in Section 9 on the reverse
of this Note, payments of principal of, and premium, if any, and interest on,
this Note shall be made against surrender of this Note at the Corporate Trust
Office of the Trustee, or at such other office or agency of the Corporation as
may be designated by it for such purpose in the Borough of Manhattan, The City
of New York, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts; provided, however, that, at the option of the Corporation, payments of
interest may be made by check or wire transfer mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
THIS NOTE SHALL NOT BE VALID OR OBLIGATORY FOR ANY PURPOSE UNTIL THE
CERTIFICATE OF AUTHENTICATION HEREON SHALL HAVE BEEN SIGNED BY THE MANUAL
SIGNATURE OF AN AUTHORIZED OFFICER OF THE TRUSTEE UNDER THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF OR BY THE MANUAL SIGNATURE OF AN AUTHORIZED OFFICER OF
THE AUTHENTICATION AGENT ON BEHALF OF THE TRUSTEE.
4
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed.
Dated: BANKERS TRUST NEW YORK CORPORATION
By: ____________________________________
Name:
Title:
ATTEST:
_______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated herein issued under
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By: BANKERS TRUST COMPANY, as Authenticating Agent
By: ____________________________________
Authorized Signatory
5
<PAGE>
[Reverse of Note]
SECTION 1. General. This Note is one of a duly authorized issue of
-------
notes of the Corporation (the "Notes") constituting part of the series of
Securities (as defined in the Indenture referred to below) designated on the
face hereof, issued or to be issued under the Indenture, dated as of November 1,
1991, as supplemented by the First Supplemental Indenture, dated as of September
1, 1993, and as further supplemented by the Second Supplemental Indenture, dated
as of October 1, 1997, thereto (collectively, the "Indenture"), duly executed
and delivered by the Corporation to The Chase Manhattan Bank (formerly The Chase
Manhattan Bank (National Association)), as Trustee, to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Corporation and the Holders of the Securities. The
Securities of this series may be issued in various aggregate principal amounts,
may mature at different times, may bear interest at different rates, may be
subject to different redemption provisions, may be subject to different sinking,
purchase or analogous funds and may otherwise vary as provided in the Indenture.
SECTION 2. Paying Agent, Calculation Agent and Security Registrar.
------------------------------------------------------
Initially, Bankers Trust Company will act as Paying Agent, Calculation Agent and
Security Registrar (each as defined below). The Corporation may change any
Paying Agent, Calculation Agent, Security Registrar or co-registrar without
notice. The Corporation may act in any such capacity. If there shall cease to be
a Paying Agent, references herein to the Paying Agent shall be deemed to be
references to the Trustee.
SECTION 3. Denominations, Transfer, Exchange. The Notes are issuable
---------------------------------
in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000 in excess thereof or, if another authorized denomination is
specified on the face hereof, in such other authorized denomination. The
transfer of Notes will be registered and Notes may be exchanged as provided in
the Indenture. The Security Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
SECTION 4. Persons Deemed Owners. The Corporation, the Trustee and
---------------------
any agent of the Corporation or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for the purpose of receiving payment
as herein provided and for all other purposes, whether or not this Note be
overdue, and neither the Corporation, the Trustee nor any agent of the
Corporation or the Trustee shall be affected by notice to the contrary.
SECTION 5. Amendments and Waivers. The Indenture permits, with
----------------------
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Corporation and the rights of
the Holders of the Securities of each series to be affected under the Indenture
at any time by the Corporation and the Trustee with the consent of the Holders
of at least 66-2/3% in principal amount of the Securities at the time
outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time outstanding, on behalf of 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
6
<PAGE>
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such waiver is made upon this Security.
SECTION 6. Defaults and Remedies. If an Event of Default with
---------------------
respect to the Notes occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Notes may declare all the Notes to be due
and payable immediately. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
waive an Event of Default and rescind any related declaration and also may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Notes notice of any continuing Event of Default if it
determines that withholding notice is in their interests.
SECTION 7. Interest Rate Calculations; Payments. The interest rate
------------------------------------
on this Note will be equal to either (i) the interest rate calculated by
reference to the Interest Rate Basis specified on the face hereof plus or minus
the Spread, if any, specified on the face hereof or (ii) the interest rate
calculated by reference to the specified Interest Rate Basis specified on the
face hereof multiplied by the Spread Multiplier, if any, specified on the face
hereof. The "Spread" is the number of basis points (one basis point being equal
to one-hundredth of a percentage point), if any, specified on the face hereof as
being applicable to this Note, and the "Spread Multiplier" is the percentage, if
any, specified on the face hereof as being applicable to this Note. Specified on
the face hereof are the Interest Rate Basis and the Spread or Spread Multiplier,
if any, and the maximum or minimum interest rate limitation, if any, applicable
to this Note. In addition, specified on the face hereof are particulars as to
the Calculation Agent (if other than Bankers Trust Company (in such capacity,
the "Calculation Agent")), and the Index Maturity, Original Issue Date, interest
rate in effect for the period from the Original Issue Date to the first Interest
Reset Date specified on the face hereof (the "Initial Interest Rate"),
Calculation Dates, Interest Determination Dates, Interest Reset Dates, Reset
Periods, Regular Record Dates and Interest Payment Dates with respect to this
Note.
Unless otherwise specified on the face hereof, except as provided
below, the Interest Payment Dates applicable to this Note will be (i) if this
Note resets daily, weekly or monthly, the third Wednesday of each month or the
third Wednesday of March, June, September and December of each year, as
specified the face hereof; (ii) if this Note resets quarterly, the third
Wednesday of March, June, September and December of each year; (iii) if this
Note resets semiannually, the third Wednesday of each of the two months of each
year specified on the face hereof; and (iv) if this Note resets annually, the
third Wednesday of the one month of each year specified on the face hereof.
Notwithstanding Section 113 of the Indenture, if any Interest Payment Date for
this Note would otherwise be a day that is not a Business Day (as defined
below), such Interest Payment Date shall be postponed to the next day that is a
Business Day, except that if the Interest Rate Basis applicable to this Note is
LIBOR, if such Business Day is in the next succeeding calendar month, such
Interest Payment Date shall instead be the immediately preceding Business Day.
If the Maturity for this Note falls on a day that is not a Business Day, all
payments to be made with respect to this Note on such day will be made on the
next succeeding Business Day with the same force and effect as if made on the
due date, and no additional interest shall be payable as a result of such delay
in payment.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually (such period being the "Reset
Period" for such Note, and the first day of each Reset Period being an "Interest
Reset Date"), as specified on the face hereof. Unless otherwise specified on the
face hereof, the Interest Reset Dates will be, if this Note resets daily, each
Business Day; if this Note resets weekly (unless
7
<PAGE>
the Interest Rate Basis applicable to this Note is the Treasury Rate), the
Wednesday of each week; if this Note resets weekly and the Interest Rate Basis
is the Treasury Rate, the Tuesday of each week, except as provided in the next
succeeding paragraph; if this Note resets monthly (unless the Interest Rate
Basis applicable to this Note is the 11th District Cost of Funds Rate), the
third Wednesday of each month; if this Note resets monthly and the Interest Rate
Basis applicable to this Note is the 11th District Cost of Funds Rate, the first
calendar day of the month; if this Note resets quarterly, the third Wednesday of
each March, June, September and December; if this Note resets semiannually, the
third Wednesday of the two months of each year specified on the face hereof; and
if this Note resets annually, the third Wednesday of the one month of each year
specified on the face hereof. If any Interest Reset Date would otherwise be a
day that is not a Business Day, the Interest Reset Date shall be postponed to
the next day that is a Business Day, except that if the Interest Rate Basis
applicable to this Note is LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall instead be the immediately
preceding Business Day. The interest rate in effect on each day will be (a) if
such day is an Interest Reset Date, the interest rate with respect to the
Interest Determination Date pertaining to such Interest Reset Date, or (b) if
such day is not an Interest Reset Date, the interest rate with respect to the
Interest Determination Date pertaining to the preceding Interest Reset Date,
subject in either case to any maximum or minimum interest rate limitation
specified on the face hereof and to any adjustment by a Spread or a Spread
Multiplier specified on the face hereof; provided, however, that the interest
rate in effect for the period from and including the Original Issue Date to but
excluding the first Interest Reset Date shall be the Initial Interest Rate
specified on the face hereof.
The interest rate for each Reset Period will be the rate determined by
the calculation agent selected by the Corporation (the "Calculation Agent") on
the Calculation Date (as defined below) pertaining to the Interest Determination
Date pertaining to the Interest Reset Date for such Reset Period. Unless
otherwise specified on the face hereof, the "Interest Determination Date"
pertaining to an Interest Reset Date, if the Interest Rate Basis applicable to
this Note is (a) the CD Rate (the "CD Interest Determination Date"), (b) the CMT
Rate (the "CMT Interest Determination Date"), (c) the Commercial Paper Rate (the
"Commercial Paper Interest Determination Date"), (d) the Federal Funds Rate (the
"Federal Funds Interest Determination Date"), (e) the Kenny Rate (the "Kenny
Rate Interest Determination Date") or (f) the Prime Rate (the "Prime Interest
Determination Date"), will be the second Business Day prior to such Interest
Reset Date. Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date, if the Interest Rate
basis applicable to this Note is the 11th District Cost of Funds Rate (the "11th
District Interest Determination Date"), will be the last Business Day of the
month immediately preceding such Interest Reset Date on which the Federal Home
Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the Index (as
defined below). Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date, if the Interest Rate
Basis applicable to this Note is LIBOR (the "LIBOR Interest Determination
Date"), will be the second London Business Day immediately preceding such
Interest Reset Date. Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date, if the Interest Rate
Basis applicable to this Note is the Treasury Rate (the "Treasury Interest
Determination Date"), will be the day of the week in which such Interest Reset
Date falls on which Treasury bills would normally be auctioned. Treasury bills
are usually sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is usually held on the following Tuesday,
except that such auction may be held on the preceding Friday. If, as a result of
a legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Treasury Interest Determination Date pertaining to the Reset Period
commencing in the next succeeding week. If an auction date shall fall on any
Interest Reset Date for a Treasury Rate Note, then such Interest Reset Date
shall instead
8
<PAGE>
be the first Business Day immediately following such auction date. The CD
Interest Determination Dates, CMT Interest Determination Dates, Commercial Paper
Interest Determination Dates, 11th District Interest Determination Dates,
Federal Funds Determination Dates, Kenny Interest Determination Dates, LIBOR
Interest Determination Dates, Prime Interest Determination Dates and Treasury
Interest Determination Dates are referred to herein as the "Interest
Determination Dates."
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date shall be the earlier of (i) the
tenth calendar day after the Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on the face
hereof.
Unless otherwise specified on the face hereof, payments of interest on
this Note on any Interest Payment Date or at maturity will include interest
accrued from and including the Original Issue Date specified on the face hereof
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, as the case may be, to but excluding the
applicable Interest Payment Date or Maturity, as the case may be. Accrued
interest shall be calculated by multiplying the face amount of this Note by an
accrued interest factor. This accrued interest factor shall be computed by
adding the interest factors calculated for each day from and including the
Original Issue Date specified on the face hereof, or from and including the last
date to which interest has been paid or duly provided for, to but excluding the
date for which accrued interest is being calculated. The interest factor for
each such day (unless otherwise specified on the face hereof) is computed by
dividing the interest rate applicable to such day by 360, if the Interest Rate
Basis applicable to this Note is the CD Rate, the Commercial Paper Rate, the
11th District Cost of Funds Rate, the Federal Funds Rate, LIBOR or the Prime
Rate, or by the actual number of days in the year, if the Interest Rate Basis
applicable to this Note is the CMT Rate or the Treasury Rate, or by 365, if the
Interest Rate Basis applicable to this Note is the Kenny Rate.
The Calculation Agent shall calculate the interest rate on this Note,
as provided below. The Calculation Agent shall, upon the request of the Holder
of this Note, provide the interest rate then in effect and, if then determined,
the interest rate which will become effective as a result of a determination
made with respect to the most recent Interest Determination Date with respect to
this Note. Bankers Trust Company shall act as the initial Calculation Agent for
this Note. For purposes of calculating the rate of interest payable on this
Note, the Corporation will enter into an agreement with the Calculation Agent.
The Calculation Agent's determination of any interest rate shall be final and
binding in the absence of manifest error.
Notwithstanding the determination of the interest rate as provided
below, the interest rate on this Note for any interest period shall not be
greater than the maximum interest rate, if any, or less than the minimum
interest rate, if any, specified on the face hereof. The interest rate on this
Note will in no event be higher than the maximum rate permitted by New York or
other applicable law, as the same may be modified by United States law of
general application.
DETERMINATION OF CD RATE. If the Interest Rate Basis specified on the face
hereof is the CD Rate, the interest rate determined with respect to each CD
Interest Determination Date shall be the CD Rate plus or
9
<PAGE>
minus the Spread, if any, or multiplied by the Spread Multiplier, if any,
specified on the face hereof, as determined on the Calculation Date pertaining
to such CD Interest Determination Date.
Unless otherwise specified on the face hereof, "CD Rate" means, with
respect to any CD Interest Determination Date, the rate on such date for
negotiable certificates of deposit having the Index Maturity specified on the
face hereof as published by the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board") in its weekly statistical release, "Statistical
Release H.15(519), Selected Interest Rates" or any successor publication of the
Federal Reserve Board ("H.15(519)") under the heading "CDs (Secondary Market)."
If such rate is not published prior to 9:00 A.M., New York City time, on the
Calcula tion Date pertaining to such CD Interest Determination Date, then the
CD Rate with respect to such CD Interest Determination Date shall be the rate on
such CD Interest Determination Date for negotiable certificates of deposit
having the Index Maturity specified on the face hereof as published by the
Federal Reserve Bank of New York in its daily statistical release "Composite
3:30 P.M. Quotations for U.S. Government Securities" or any successor
publication ("Composite Quotations") under the heading "Certificates of
Deposit." If by 3:00 P.M., New York City time, on such Calculation Date such
rate is not published in either H.15(519) or Composite Quotations, then the CD
Rate with respect to such CD Interest Determination Date shall be calculated by
the Calculation Agent and shall be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such CD Interest
Determination Date quoted by three leading nonbank dealers in negotiable U.S.
Dollar certificates of deposit in The City of New York (which may include the
Calculation Agent and/or one or more of the Agents parties to the Distribution
Agreement, dated October 1, 1997 (the "Distribution Agreement"), between the
Corporation and certain agents providing for the offer and sale of the
Corporation's Senior Medium-Term Notes, Series A, and Subordinated Medium-Term
Notes, Series A (the "Agents")) selected by the Calculation Agent for negotiable
certificates of deposit in a denomination of $5,000,000 of major United States
money center banks with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers so selected
by the Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate with respect to such CD Interest Determination Date will be the CD Rate in
effect on such CD Interest Determination Date.
DETERMINATION OF CMT RATE. If the Interest Rate Basis specified on the face
hereof is the CMT Rate, the interest rate determined with respect to each CMT
Interest Determination Date shall be the CMT Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, specified on the face
hereof, as determined on the Calculation Date pertaining to such CMT Interest
Determination Date.
Unless otherwise specified on the face hereof, "CMT Rate" means, with
respect to any CMT Interest Determination Date, the rate displayed on the
Designated CMT Telerate Page (as defined below) under the caption ". . .
Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . . .
Mondays Approxi mately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the applicable CMT Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or is not displayed by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such CMT Interest Determination Date, then the CMT Rate for
such CMT Interest Determination Date will be such treasury constant maturity
rate for the Designated CMT Maturity Index as is published in the relevant
H.15(519). If such rate is no longer published, or is not published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the
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CMT Rate for such CMT Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for such CMT Interest
Determination Date as may then be published by either the Federal Reserve Board
or the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in the relevant H.15(519). If such information is
not provided by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such CMT Interest Determination Date, then the CMT Rate for the
CMT Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity, based on the arithmetic mean of the secondary
market closing offer side prices as of approximately 3:30 P.M., New York City
time, on the CMT Interest Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers (each, a "Reference Dealer") in The City of New York selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 P.M., New
York City time, on the CMT Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100,000,000. If three or four (and not five)
of such Reference Dealers are quoting as described above, then the CMT Rate will
be based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided, however,
that if fewer than three Reference Dealers so selected by the Calculation Agent
are quoting as described herein, the CMT Rate will be the CMT Rate in effect on
such CMT Interest Determination Date. If two Treasury Notes with an original
maturity as described in the third preceding sentence have remaining terms to
maturity equally close to the Designated CMT Maturity Index, then the quotes for
the Treasury Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof for the purpose of
displaying Treasury Constant Maturities as published in H.15(519) (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as published in H.15(519)). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the Treasury Notes (either one, two, three, five, seven, ten, twenty or
thirty years) specified on the face hereof with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
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DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis specified on
the face hereof is the Commercial Paper Rate, the interest rate determined with
respect to each Commercial Paper Rate Interest Determination Date shall be the
Commercial Paper Rate plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, specified on the face hereof, as determined on the
Calculation Date pertaining to such Commercial Paper Rate Interest Determination
Date.
Unless otherwise specified on the face hereof, "Commercial Paper Rate"
means, with respect to any Commercial Paper Interest Determination Date, the
Money Market Yield (calculated as described below) of the rate (quoted on a
discount basis) on such date for commercial paper having the Index Maturity
specified on the face hereof as published in H.15(519) under the heading
"Commercial Paper-Nonfinancial" or, if unavailable, under such other heading
representing commercial paper issued by non-financial entities whose bond rating
is "AA" or the equivalent from a nationally recognized statistical rating
agency. If such rate is not published prior to 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Commercial Paper Interest
Determination Date, then the Commercial Paper Rate with respect to such
Commercial Paper Interest Determination Date shall be the Money Market Yield of
the rate (quoted on a discount basis) on such Commercial Paper Interest
Determination Date for commercial paper having the Index Maturity specified on
the face hereof as published in Composite Quotations under the heading
"Commercial Paper-Nonfinancial." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not yet published in either H.15(519) or Composite
Quotations, then the Commercial Paper Rate with respect to such Commercial Paper
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates as
of 11:00 A.M., New York City time, on such Commercial Paper Interest
Determination Date, of three leading dealers of commercial paper in The City of
New York (which may include the Calculation Agent and/or one or more of the
Agents) selected by the Calculation Agent for commercial paper having the Index
Maturity specified on the face hereof placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized securities
rating agency; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate with respect to such Commercial Paper Interest Determination Date
will be the Commercial Paper Rate in effect on such Commercial Paper Interest
Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------------ x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
DETERMINATION OF 11TH DISTRICT COST OF FUNDS RATE. If the Interest Rate Basis
specified on the face hereof is the 11th District Cost of Funds Rate, the
interest rate determined with respect to each 11th District Interest
Determination Date shall be the 11th District Cost of Funds Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified on
the face hereof, as determined on the Calculation Date pertaining to such 11th
District Interest Determination Date.
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Unless otherwise specified on the face hereof, "11th District Cost of
Funds Rate" means, with respect to any 11th District Interest Determination
Date, the rate equal to the monthly weighted average cost of funds for the
calendar month immediately preceding such 11th District Interest Determination
Date as specified under the caption "11th District" on Telerate Page 7058 as of
11:00 A.M., San Francisco time, on such 11th District Interest Determination
Date. If such rate does not appear on Telerate Page 7058 on any 11th District
Interest Determination Date, the 11th District Cost of Funds Rate with respect
to such 11th District Interest Determination Date shall be the monthly weighted
average cost of funds paid by member institutions of the Eleventh Federal Home
Loan Bank District that was most recently announced by the FHLB of San Francisco
as such cost of funds for the calendar month immediately preceding the date of
such announcement (the "Index"). If the FHLB of San Francisco fails to announce
such rate for the calendar month immediately preceding such 11th District
Interest Determination Date, then the 11th District Cost of Funds Rate with
respect to such 11th District Interest Determination Date will be the 11th
District Cost of Funds Rate in effect on such 11th District Interest
Determination Date.
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis specified on
the face hereof is the Federal Funds Rate, the interest rate determined with
respect to each Federal Funds Interest Determination Date shall be the Federal
Funds Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, specified on the face hereof, as determined on the
Calculation Date pertaining to such Federal Funds Interest Determination Date.
Unless otherwise specified on the face hereof, "Federal Funds Rate"
means, with respect to any Federal Funds Interest Determination Date, the rate
on such date for Federal Funds as published in H.15(519) under the heading
"Federal Funds (Effective)." If such rate is not published prior to 9:00 A.M.,
New York City time, on the Calculation Date pertaining to such Federal Funds
Interest Determination Date, then the Federal Funds Rate with respect to such
Federal Funds Interest Determination Date shall be the rate on such Federal
Funds Interest Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on
such Calculation Date such rate is not published in either H.15(519) or
Composite Quotations, then the Federal Funds Rate with respect to such Federal
Funds Interest Determination Date shall be calculated by the Calculation Agent
and shall be the arithmetic mean of the rates, as of 9:00 A.M., New York City
time, on such Federal Funds Interest Determination Date for the last transaction
in overnight Federal Funds arranged by three leading brokers of Federal Funds
transactions in The City of New York (which may include the Calculation Agent
and/or one or more of the Agents) selected by the Calculation Agent; provided,
however, that if the brokers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Federal Funds Rate with respect to
such Federal Funds Interest Determination Date will be the Federal Funds Rate in
effect on such Federal Funds Interest Determination Date.
DETERMINATION OF KENNY RATE. If the Interest Rate Basis specified on the face
hereof is the Kenny Rate, the interest rate determined with respect to each
Kenny Rate Interest Determination Date shall be the Kenny Rate plus or minus the
Spread, if any, or multiplied by the Spread Multiplier, if any, specified on the
face hereof, as determined on the Calculation Date pertaining to such Kenny Rate
Interest Determination Date.
Unless otherwise specified on the face hereof, "Kenny Rate" means,
with respect to any Kenny Rate Interest Determination Date, the high grade
weekly index (the "Weekly Index") on such date made available by Kenny
Information Systems ("Kenny") to the Calculation Agent. The Weekly Index is, and
shall be, based upon 30-day yield evaluations at par of bonds, the interest on
which is exempt from United States
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federal income taxation under the Internal Revenue Code of 1986, as amended (the
"Code"), of not less than five high grade component issuers selected by Kenny
which shall include, without limitation, issuers of general obligation bonds.
The specific issuers included among the component issuers may be changed from
time to time by Kenny in its discretion. The bonds on which the Weekly Index is
based shall not include any bonds on which the interest is subject to a minimum
tax or similar tax under the Code, unless all tax-exempt bonds are subject to
such tax. If Kenny ceases to make available such Weekly Index, a successor
indexing agent will be selected by the Calculation Agent, such index to reflect
the prevailing rate for bonds rated in the highest short-term rating category by
Moody's Investors Service, Inc. and Standard & Poor's Ratings Services in
respect of issuers most closely resembling the high grade component issuers
selected by Kenny for its Weekly Index, the interest on which is (A) variable on
a weekly basis, (B) exempt from United States federal income taxation under the
Code, and (C) not subject to a minimum tax or similar tax under the Code, unless
all tax-exempt bonds are subject to such tax. If such successor indexing agent
is not available, the rate for any Kenny Rate Interest Determination Date shall
be 67% of the rate determined if the Treasury Rate option had been originally
selected.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the face hereof
is LIBOR, the interest rate determined with respect to each LIBOR Interest
Determination Date shall be LIBOR plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, specified on the face hereof, as
determined on the Calculation Date pertaining to such LIBOR Interest
Determination Date.
Unless otherwise specified on the face hereof, "LIBOR" means, with
respect to any LIBOR Interest Determination Date, the rate determined in
accordance with the following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will be
either: (a) if "LIBOR Reuters" is specified on the face hereof, the arithmetic
mean of the offered rates (unless the Designated LIBOR Page (as defined below)
by its terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Designated LIBOR Currency having the Index
Maturity specified on the face hereof, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date,
which appear on the Designated LIBOR Page as of 11:00 A.M., London time, on
that LIBOR Interest Determination Date, or (b) if "LIBOR Telerate" is
specified on the face hereof, the rate for deposits in the Designated LIBOR
Currency having the Index Maturity specified on the face hereof, commencing on
the second LIBOR Business Day immediately following such LIBOR Interest
Determination Date, which appears on the Designated LIBOR Page as of 11:00
A.M., London time, on that LIBOR Interest Determination Date. Notwithstanding
the foregoing, if fewer than two offered rates appear on the Designated LIBOR
Page with respect to LIBOR Reuters (unless the specified Designated LIBOR Page
with respect to LIBOR Reuters by its terms provides only for a single rate, in
which case such single rate shall be used), or if no rate appears on the
Designated LIBOR Page with respect to LIBOR Telerate, whichever may be
applicable, LIBOR with respect to the related LIBOR Interest Determination
Date will be determined as if the parties had specified the rate described in
clause (ii) below. If neither LIBOR Reuters nor LIBOR Telerate is specified
on the face hereof, LIBOR will be determined as if LIBOR Telerate had been
specified.
(ii) With respect to any LIBOR Interest Determination Date on which fewer
than two offered rates appear on the Designated LIBOR Page with respect to
LIBOR Reuters (unless the Designated LIBOR Page by its terms provides only for
a single rate, in which case such single rate shall be used), or if no rate
appears on the Designated LIBOR Page with respect to LIBOR Telerate, as the
case may
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be, the Calculation Agent will request the principal London office of each of
four major banks in the London interbank market selected by the Calculation
Agent (which may include the Calculation Agent and/or one or more of the
Agents) to provide the Calculation Agent with its offered rate quotation for
deposits in the Designated LIBOR Currency for the period of the Index Maturity
specified on the face hereof, commencing on the second LIBOR Business Day
immediately following such LIBOR Interest Determination Date, to prime banks
in the London interbank market as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date and in a principal amount that is representative
for a single transaction in such Designated LIBOR Currency in such market at
such time. If at least two such quotations are provided, LIBOR with respect to
such LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR with respect to
such LIBOR Interest Determination Date will be the arithmetic mean of the
rates quoted as of 11:00 A.M. in the Principal Financial Center of the
Designated LIBOR Currency on such LIBOR Interest Determination Date by three
major banks in such Principal Financial Center selected by the Calculation
Agent (which may include the Calculation Agent and/or one or more of the
Agents) for loans in the Designated LIBOR Currency to leading banks,
commencing on the second LIBOR Business Day immediately following such LIBOR
Interest Determination Date, having the Index Maturity specified on the face
hereof and in a principal amount that is representative for a single
transaction in such Designated LIBOR Currency in such market at such time;
provided, however, that if the banks so selected by the Calculation Agent are
not quoting as mentioned in this sentence, LIBOR with respect to such LIBOR
Interest Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency (including a currency
unit), if any, designated on the face hereof as the Designated LIBOR Currency.
If no such currency is designated on the face hereof, the Designated LIBOR
Currency shall be U.S. Dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London interbank
rates of major banks for the applicable Designated LIBOR Currency (if "LIBOR
Reuters" is specified on the face hereof), or (b) the display on the Dow Jones
Telerate Service for the purpose of displaying the London interbank rates of
major banks for the applicable designated LIBOR Currency (if "LIBOR Telerate" is
specified on the face hereof) or, in either case, such other page or pages as
may replace such pages on such system for the purpose of displaying such rates
or, in either case, if such display is not available at any time, a comparable
display, as determined in the sole discretion of the Calculation Agent, of such
rates as may be available from a similar service. If neither LIBOR Reuters nor
LIBOR Telerate is specified on the face hereof, LIBOR for the applicable
Designated LIBOR Currency will be determined as if LIBOR Telerate (and, if the
U.S. Dollar is the Designated LIBOR Currency, page 3750) had been chosen.
The "Principal Financial Center" of any currency means, unless
otherwise specified on the face hereof, the capital city of the country that
issues such currency as its legal tender, except that with respect to U.S.
Dollars and ECUs, the Principal Financial Center shall be The City of New York
and Brussels, respectively.
DETERMINATION OF PRIME RATE. If the Interest Rate Basis specified on the face
hereof is the Prime Rate, the interest rate determined with respect to each
Prime Interest Determination Date shall be the Prime Rate plus
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<PAGE>
or minus the Spread, if any, or multiplied by the Spread Multiplier, if any,
specified on the face hereof, as determined on the Calculation Date pertaining
to such Prime Interest Determination Date.
Unless otherwise specified on the face hereof, "Prime Rate" means,
with respect to any Prime Interest Determination Date, the rate set forth on
such date in H.15(519) under the heading "Bank Prime Loan." If such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Prime Interest Determination Date, then the Prime Rate with
respect to such Prime Interest Determination Date shall be determined by the
Calculation Agent and shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen USPRIME1 Page
(as defined below) as such bank's prime rate or base lending rate as in effect
for that Prime Interest Determination Date. If fewer than four such rates appear
on the Reuters Screen USPRIME1 Page on the Prime Interest Determination Date,
the Prime Rate with respect to such Prime Interest Determination Date shall be
determined by the Calculation Agent and shall be the arithmetic mean of the
prime or base lending rates quoted on the basis of the actual number of days in
the year divided by 360 as of the close of business on such Prime Interest
Determination Date by at least two leading money center banks in The City of New
York selected by the Calculation Agent (which may include the Calculation Agent
and/or one or more of the Agents). If fewer than two quotations are provided,
the Prime Rate with respect to such Prime Interest Determination Date shall be
determined on the basis of the rates furnished in The City of New York by the
appropriate number of substitute banks or trust companies organized and doing
business under the laws of the United States, or any state thereof, having total
equity capital of at least U.S.$500 million and being subject to supervision or
examination by Federal or state authority, selected by the Calculation Agent to
provide such rate or rates (which may include the Calculation Agent and/or one
or more of the Agents); provided, however, that if the appropriate number of
substitute banks or trust companies selected as aforesaid are not quoting as
mentioned in this sentence, the Prime Rate with respect to such Prime Interest
Determination Date will be the Prime Rate in effect on such Prime Interest
Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rate Service (or such other page as may
replace the USPRIME1 page on the service for the purpose of displaying the prime
or base lending rate of major banks).
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis specified on the face
hereof is the Treasury Rate, the interest rate determined with respect to each
Treasury Interest Determination Date shall be the Treasury Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified on
the face hereof, as determined on the Calculation Date pertaining to such
Treasury Interest Determination Date.
Unless otherwise specified on the face hereof, "Treasury Rate" means,
with respect to any Treasury Interest Determination Date, the rate for the most
recent auction of direct obligations of the United States ("Treasury bills")
having the Index Maturity specified on the face hereof as published in H.15(519)
under the heading, "U.S. Government Securities/Treasury Bills Auction Average"
or, if not so published by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Treasury Interest Determination Date, the auction
average rate (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) for such auction as
otherwise announced by the United States Department of the Treasury. If such
rate is not available by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Interest Determination Date, or if no such auction
is held in a particular week, then the Treasury Rate with respect to such
Treasury Interest Determination Date shall
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be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Interest Determination Date, of three leading primary U.S.
government securities dealers selected by the Calculation Agent (which may
include the Calculation Agent and/or one or more of the Agents) for the issue of
Treasury bills with a remaining maturity closest to the Index Maturity specified
on the face hereof or, if there are two such issues which are equidistant from
the Index Maturity specified on the face hereof, then the longer of the two;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Treasury Rate with respect to
such Treasury Interest Determination Date will be the Treasury Rate in effect on
such Treasury Interest Determination Date.
The Calculation Agent shall calculate the interest rate on this Note
in accordance with the foregoing as soon as practicable after the Interest
Determination Date.
SECTION 8. Amortizing Notes. Unless otherwise specified on the face
----------------
hereof, if this Note is an Amortizing Note, as specified on the face hereof,
payments with respect to this Note will be applied first to interest due and
payable hereon and then to the reduction of the unpaid principal amount hereof.
If this Note is an Amortizing Note, a table setting forth repayment information
in respect of this Note will be provided to the original purchaser hereof and
will be available, upon request, to subsequent Holders.
SECTION 9. Currency of Payment. Unless otherwise specified on the face
-------------------
hereof, the principal of, and any premium and interest on, this Note shall be
payable by the Corporation in the Specified Currency for this Note. Unless
otherwise specified on the face hereof, if the Specified Currency for this Note
is other than U.S. Dollars, (i) the Corporation shall (unless otherwise
specified on the face hereof) arrange to convert all payments in respect of this
Note into U.S. Dollars in the manner described in the following paragraph; and
(ii) the Holder of this Note may (unless otherwise specified on the face hereof)
elect to receive all payments in respect of this Note in the Specified Currency
by delivering a written notice to the paying agent for this Note (the "Paying
Agent") not later than fifteen calendar days prior to the applicable payment
date, except under the circumstances described below. Such election shall remain
in effect until revoked by written notice to such Paying Agent received not
later than fifteen calendar days prior to the applicable payment date.
If the Specified Currency of this Note is other than U.S. Dollars, the
amount of any U.S. Dollar payment in respect of this Note will be determined by
the Calculation Agent based on the highest firm bid quotation expressed in U.S.
Dollars received by the Calculation Agent at approximately 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date (or,
if no such rate is quoted on such date, the last date on which such rate was
quoted), from three (or, if three are not available, then two) recognized
foreign exchange dealers in The City of New York (one of which may be an Agent
and another of which may be the Calculation Agent) agreed upon by the
Corporation and the Calculation Agent, for the purchase by the quoting dealer,
for settlement on such payment date, of the aggregate amount of such Specified
Currency payable on such payment date in respect of all Notes denominated in
such Specified Currency (such rate, the "Market Exchange Rate"). All currency
exchange costs will be borne by the Holders of such Notes by deductions from
such payments. If fewer than two such bid quotations are available, such
payments will be made in such Specified Currency, unless such Specified Currency
is unavailable due to the imposition of exchange controls or to other
circumstances beyond the Corporation's control or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public
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<PAGE>
institutions of or within the international banking community, in which case
such payments shall be made as described below.
Except as specified in the following paragraphs, if payment in respect
of this Note is required to be made in a Specified Currency other than U.S.
Dollars and such currency is unavailable due to the imposition of exchange
controls or other circumstances beyond the Corporation's control or is no longer
used by the government of the country issuing such currency or for the
settlement of transactions by public institutions of or within the international
banking community, then all payments in respect of this Note shall be made in
U.S. Dollars; provided that the Corporation, at its option, may resume making
payments in such currency once such currency is again available or so used. The
amounts so payable on any date in such currency shall be converted into U.S.
Dollars on the basis of the most recently available Market Exchange Rate for
such currency or as otherwise indicated on the face hereof. Any payment in
respect of this Note made under such circumstances in U.S. Dollars will not
constitute an Event of Default under the Indenture.
If payment in respect of this Note is required to be made in ECUs and
ECUs are no longer used in the European Monetary System, then all payments in
respect of this Note shall be made in U.S. Dollars, provided that the
Corporation, at its option, may resume making payments in ECUs once ECUs are
again so used. The amount of each payment in U.S. Dollars shall be computed on
the basis of the equivalent of ECUs in U.S. Dollars, determined as described
below, as of the second Business Day prior to the date on which such payment is
due.
The equivalent of ECU in U.S. Dollars as of any date shall be
determined by the Calculation Agent on the following basis. The component
currencies of ECU for this purpose (the "Components") shall be the currency
amounts that were components of ECU as of the last date on which ECU were used
in the European Monetary System. The equivalent of ECU in U.S. Dollars shall be
calculated by aggregating the U.S. Dollar equivalents of the Components. The
U.S. Dollar equivalent of each Component shall be determined by the Calculation
Agent on the basis of the most recently available Market Exchange Rates for such
Components or as otherwise specified on the face hereof.
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more component
currencies are consolidated into a single currency, the amounts of those
currencies as Components shall be replaced by an amount in such single currency
equal to the sum of the amounts of the consolidated component currencies
expressed in such single currency. If any component currency is divided into two
or more currencies, the amount of that currency as a Component shall be replaced
by amounts of such two or more currencies, each of which shall be equal to the
amount of the former component currency divided by the number of currencies into
which that currency was divided.
All determinations referred to above made by the Calculation Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holders of this Note.
SECTION 10. Currency Indexed Notes. If it is specified on the face
----------------------
hereof that this Note is a Currency Indexed Note, then unless otherwise
specified on the face hereof, the principal of, and any premium and interest on,
this Note will be calculated in the manner described below.
18
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If it is specified on the face hereof that the principal of this Note
is indexed, then unless otherwise specified on the face hereof, principal at
Maturity of this Note will be payable in an amount equal to the Principal Amount
of this Note, plus or minus an amount determined by reference to the difference
between the Base Exchange Rate specified on the face hereof, and the rate (the
"Spot Rate") at which Currency I specified on the face hereof can be exchanged
for Currency II specified on the face hereof on the second Business Day prior to
the Maturity of this Note (the "Indexed Principal Determination Date"), as
determined by the Calculation Agent. If it is specified on the face hereof that
the interest on this Note is indexed, then unless otherwise specified on the
face hereof, the interest payable on any Interest Payment Date or at Maturity
will be payable in an amount equal to the stated interest rate of this Note,
plus or minus a rate adjustment determined by reference to the difference
between the Base Exchange Rate specified on the face hereof, and the Spot Rate
on the second Business Day prior to the applicable Interest Payment Date or the
Maturity of this Note (the "Indexed Interest Determination Date") as determined
by the Calculation Agent, applied to the average Principal Amount outstanding of
such Note for the period being measured. For the purpose of this section, the
Spot Rate on the Indexed Principal Determination Date or the Indexed Interest
Determination Date, as the case may be, will be the average of quotations for
settlement on the date of Maturity or the relevant Interest Payment Date, as the
case may be, obtained by the Calculation Agent from three (or if three are not
available, then two) Currency Dealers in The City of New York (which may include
the Calculation Agent and/or one or more of the Agents) at approximately 11:00
A.M., New York City time, on the Indexed Principal Determination Date or the
relevant Indexed Interest Determination Date, as the case may be. If so
specified on the face hereof, the rate adjustment may also be determined by
reference to a leverage factor ("L") specified on the face hereof.
Unless otherwise specified on the face hereof, the formulas to be used
by the Calculation Agent to determine the principal and/or the interest payable
at Maturity or on any Interest Payment Date will be as follows:
Principal
A. If it is specified on the face hereof that principal is to increase
when the Spot Rate exceeds the Base Exchange Rate, and to decrease when the Spot
Rate is less than the Base Exchange Rate, the formula to determine the principal
of a Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x L x [Spot Rate-Base Exchange Rate])
-------------------------------
Spot Rate
However, in no event will the principal payable at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will sell
Currency I in exchange for a single unit of Currency II on the Indexed Principal
Determination Date.
B. If it is specified on the face hereof that principal is to increase
when the Base Exchange Rate exceeds the Spot Rate, and to decrease when the Base
Exchange Rate is less than the Spot Rate, the formula to determine the principal
amount of a Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x L x [Base Exchange Rate-Spot Rate])
-------------------------------
19
<PAGE>
Spot Rate
However, in no event will the principal payable at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will purchase
Currency I in exchange for a single unit of Currency II on the Indexed Principal
Determination Date.
Interest
A. If it is specified on the face hereof that interest is to increase
when the Spot Rate exceeds the Base Exchange Rate, and to decrease when the Spot
Rate is less than the Base Exchange Rate, the formula to determine the rate at
which interest is payable on any Interest Payment Date or at Maturity on a
Currency Indexed Note shall equal:
Stated Interest Rate + (L x [Spot Rate-Base Exchange Rate])
-------------------------------
Spot Rate
However, in no event will the interest payable on any Interest Payment Date or
at Maturity to be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will sell
Currency I in exchange for a single unit of Currency II on the Indexed Interest
Determination Date.
B. If it is indicated on the face hereof that interest is to increase
when the Base Exchange Rate exceeds the Spot Rate, and to decrease when the Base
Exchange Rate is less than the Spot Rate, the formula to determine the Rate at
which interest is payable on any Interest Payment Date or at Maturity on a
Currency Indexed Note shall equal:
Stated Interest Rate + (L x [Base Exchange Rate-Spot Rate])
-------------------------------
Spot Rate
However, in no event will the interest payable on any Interest Payment Date or
at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will purchase
Currency I in exchange for a single unit of Currency II on the Indexed Interest
Determination Date.
SECTION 11. Redemption. If so specified on the face hereof, this
----------
Note may be redeemed at the option of the Corporation as a whole or from time to
time in part, on or after the date designated as the Initial Redemption Date on
the face hereof, in whole or from time to time in part in increments of $1,000
or the minimum denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be an authorized denomination), at the
Redemption Price (as defined below). The "Redemption Price" shall be equal to
the sum of (i) the Initial Redemption Percentage specified on the face hereof,
(as adjusted by the Annual Redemption Percentage Reduction, if any, specified on
the face hereof) multiplied by the
20
<PAGE>
principal amount hereof to be redeemed, plus (ii) the unpaid interest accrued on
the Principal Amount hereof to be redeemed to the date of redemption, provided
that interest installments that are due on or prior to the date of redemption
will be payable to the Holder of this Note at the close of business on the
relevant Regular Record Date referred to on the face hereof, as provided in the
Indenture. The Initial Redemption Percentage, if any, applicable to this Note
shall decline on each anniversary of the Initial Redemption Date by an amount
equal to the Annual Redemption Percentage Reduction, if any, specified on the
face hereof, until the Redemption Price is equal to 100% of the unpaid Principal
Amount hereof or the portion thereof to be redeemed.
The Corporation may exercise such option by causing the security
registrar for this Note (the "Security Registrar") to mail a notice of such
redemption not more than 60 nor less than 30 calender days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
SECTION 12. Repayment. If so specified on the face hereof, this Note
---------
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note to be repaid prior to
Stated Maturity at the Option of the Holder, the Security Registrar must receive
at least 30 but not more than 45 calendar days prior to an Optional Repayment
Date (i) this Note with the form below entitled "Option to Elect Repayment" duly
completed or (ii) a telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States of America setting forth the name of
the Holder of this Note, the Principal Amount of this Note, the Principal Amount
of the Note to be repaid, the certificate number or a description of the tenor
and terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee by a commercial bank, a trust company or by a
member of the New York Stock Exchange which is a member of an approved signature
guarantee medallion program pursuant to Securities and Exchange Commission Rule
17Ad-15 that this Note with the form below entitled "Option to Elect Repayment"
duly completed will be received by the Security Registrar not later than three
Business Days after the date of such telegram, telex, facsimile transmission,
hand delivery or letter (first class, postage prepaid). If the procedure
described in clause (ii) of the preceding sentence is followed, this Note with
such form duly completed must be received by the Security Registrar by such
third Business Day. Exercise of the repayment option by the Holder of this Note
shall be irrevocable, except that a Holder who has tendered this Note for
repayment may revoke any such tender for repayment by written notice to the
Security Registrar received prior to the close of business on the tenth calendar
day prior to the repayment date. The repayment option may be exercised by the
Holder of this Note for less than the entire Principal Amount of this Note
provided that the Principal Amount of this Note remaining outstanding after such
repayment is an authorized denomination. Upon such partial repayment, this Note
shall be canceled and a new Note or Notes for the remaining Principal Amount
hereof shall be issued in the name of the Holder of this Note.
SECTION 13. Optional Interest Reset. If so specified on the face
-----------------------
hereof, the Spread and/or the Spread Multiplier on this Note may be reset by the
Corporation on the date or dates or on the basis specified on the face hereof
(each an "Optional Interest Reset Date"). The Corporation may exercise such
option by notifying the Security Registrar of such exercise at least 45 but not
more than 60 calendar days prior to any
21
<PAGE>
Optional Interest Reset Date. If the Corporation so notifies the Security
Registrar of such exercise, the Security Registrar will send, not later than 40
calendar days prior to each Optional Interest Reset Date, by telegram, telex,
facsimile transmission, hand delivery or letter (first class, postage prepaid)
to the Holder of this Note a notice (the "Reset Notice") indicating (i) that the
Corporation has elected to reset the Spread and/or the Spread Multiplier, (ii)
such new Spread and/or Spread Multiplier and (iii) the provisions, if any, for
redemption during the period from such Optional Interest Reset Date to the next
Optional Interest Reset Date or, if there is no such next Optional Interest
Reset Date, to the Stated Maturity of this Note (each such period a "Subsequent
Interest Period"), including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur during
such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior
to an Optional Interest Reset Date, the Corporation may, at its option, revoke
the Spread and/or the Spread Multiplier provided for in the Reset Notice and
establish a Spread and/or Spread Multiplier resulting in a higher interest rate
for the Subsequent Interest Period commencing on such Optional Interest Reset
Date by causing the Security Registrar to send by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) notice of
such Spread and/or Spread Multiplier resulting in a higher interest rate to the
Holder of this Note. Such notice shall be irrevocable. All Notes with respect to
which the Spread and/or the Spread Multiplier is reset on an Optional Interest
Reset Date will bear such Spread and/or Spread Multiplier resulting in a higher
interest rate, whether or not tendered for repayment as provided in the next
paragraph.
If the Corporation elects prior to an Optional Interest Reset Date to
reset the Spread and/or the Spread Multiplier of this Note, the Holder of this
Note will have the option to elect repayment of this Note by the Corporation on
such Optional Interest Reset Date at a price equal to the Principal Amount
hereof plus interest accrued and unpaid thereon to such Optional Interest Reset
Date. In order to obtain repayment on an Optional Interest Reset Date, the
Holder must follow the procedures specified under Section 12 for optional
repayment except that the period for delivery or notification to the Security
Registrar shall be at least 25 but not more than 35 calendar days prior to such
Optional Interest Reset Date. If the Holder has tendered this Note for repayment
following receipt of a Reset Notice, the Holder may revoke such tender for
repayment by written notice to the Security Registrar received prior to 5:00
P.M., New York City time, on the tenth calendar day prior to such Optional
Interest Reset Date.
SECTION 14. Optional Extension of Maturity. If so specified on the
------------------------------
face hereof, the Stated Maturity of this Note may be extended at the option of
the Corporation for a period or periods of from one to five whole years each, as
specified on the face hereof (each, an "Extension Period") up to but not beyond
the date (the "Final Maturity Date") specified on the face hereof. The
Corporation may exercise such option with respect to this Note by notifying the
Security Registrar of such exercise at least 45 but not more than 60 calendar
days prior to the Stated Maturity of this Note in effect prior to the exercise
of such option (the "Original Stated Maturity Date"). If the Corporation so
notifies the Security Registrar of such exercise, the Security Registrar will
send, not later than 40 calendar days prior to the Original Stated Maturity
Date, by telegram, telex, facsimile transmission, hand delivery or letter (first
class, postage prepaid) to the Holder of this Note, a notice (the "Extension
Notice") indicating (i) that the Corporation has elected to extend the Stated
Maturity of this Note, (ii) the new Stated Maturity, (iii) the Spread and/or the
Spread Multiplier applicable to the Extension Period and (iv) the provisions, if
any, for redemption during such Extension Period, including the date or dates on
which or the period or periods during which and the price or prices at which
such redemption may occur during such Extension Period. Upon the Security
Registrar's sending of the Extension Notice, the Stated Maturity of this Note
shall be extended automatically and, except as
22
<PAGE>
modified by the Extension Notice and as described in the next two paragraphs,
this Note will have the same terms as prior to the sending of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior
to the Original Stated Maturity Date of this Note, the Corporation may, at its
option, revoke the change in the Spread and/or the Spread Multiplier provided
for in the Extension Notice and establish a Spread and/or Spread Multiplier
resulting in a higher interest rate for the Extension Period by causing the
Security Registrar to send by telegram, telex, facsimile transmission, hand
delivery or letter (first class, postage prepaid) notice of such Spread and/or
Spread Multiplier resulting in a higher interest rate to the Holder of this
Note. Such notice shall be irrevocable. All Notes with respect to which the
Stated Maturity is extended will bear such Spread and/or Spread Multiplier
resulting in a higher interest rate for the Extension Period, whether or not
tendered for repayment as provided in the next paragraph.
If the Corporation elects to extend the Stated Maturity of this Note,
the Holder will have the option to elect repayment of this Note by the
Corporation on the Original Stated Maturity Date at a price equal to the
Principal Amount hereof, plus interest accrued and unpaid thereon to such date.
In order to obtain repayment on the Original Stated Maturity Date, the Holder
must follow the procedures specified under Section 12 for optional repayment,
except that the period for delivery or notification to the Security Registrar
shall be at least 25 but not more than 35 calendar days prior to the Original
Stated Maturity Date. A Holder who has tendered this Note for repayment
following receipt of an Extension Notice may revoke such tender for repayment by
written notice to the Security Registrar received prior to 5:00 P.M., New York
City time, on the tenth calendar day prior to the Original Stated Maturity Date.
SECTION 15. Sinking Fund. This Note will not be subject to any
------------
sinking fund.
SECTION 16. Original Issue Discount Notes. Notwithstanding anything
-----------------------------
herein to the contrary, unless otherwise specified on the face hereof, if it is
specified on the face hereof that this Note is an Original Issue Discount Note,
the amount payable if the Principal Amount hereof is declared to be due and
payable prior to the Stated Maturity hereof by reason of an Event of Default, or
if this Note is redeemed or repaid prior to the Stated Maturity hereof, shall be
the Amortized Face Amount (as defined below) of this Note as of the date of
declaration, redemption or repayment, as the case may be. The "Amortized Face
Amount" of this Note shall be the amount equal to (i) the Principal Amount of
this Note multiplied by the Issue Price specified on the face hereof plus (ii)
that portion of the difference between the dollar amount determined pursuant to
the preceding clause (i) and the Principal Amount hereof that has accreted at
the Yield to Maturity specified on the face hereof (computed in accordance with
generally accepted United States bond yield computation principles) to such date
of declaration, redemption or payment, but in no event shall the Amortized Face
Amount of this Note exceed its Principal Amount.
SECTION 17. Defined Terms. Unless otherwise defined herein, all
-------------
capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture; and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Notes.
As used herein, "Business Day" means, unless otherwise specified on the face
hereof, any Monday, Tuesday, Wednesday, Thursday or Friday (i) that is not a day
on which banking institutions are authorized or required by law, regulation or
executive order to close in any of The City of New York, the Principal Financial
Center of the Specified Currency of this Note or, if interest on this Note is
payable in a currency or currency unit other than such Specified Currency (the
"Interest Currency"), the Principal Financial Center of such Interest
23
<PAGE>
Currency or that, if the Specified Currency or Interest Currency is the European
Currency Unit (the "ECU"), is an ECU Business Day (as defined below). "ECU
Business Day" means any day other than a day designated as an ECU Non-Settlement
Day by the ECU Banking Association in Paris or otherwise generally regarded in
the ECU interbank market as a day on which payments on ECUs shall not be made.
"LIBOR Business Day" means any day (a) if the Designated LIBOR Currency is other
than the ECU, on which dealings in deposits in such Designated LIBOR Currency
are transacted in the London interbank market and in the principal financial
center of the Designated LIBOR Currency or (b) if the Designated LIBOR Currency
is the ECU, that is an ECU Business Day.
SECTION 18. Calculations. All percentages resulting from any
------------
calculations under this Note will be rounded, if necessary, to the nearest one
hundred thousandth of a percentage point (with five one-millionths of a
percentage point being rounded upward) and all currency or currency units or
dollar amounts used in or resulting from any such calculation in respect of the
Notes will be rounded to the nearest one-hundredth of a unit (with five one-
thousandths being rounded upward) or nearest cent (with one-half cent being
rounded upward), as the case may be.
SECTION 19. Trustee Dealings with Corporation. Subject to Sections
---------------------------------
608 and 613 of the Indenture, the Trustee, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Corporation or its affiliates, and may otherwise deal with the Corporation or
its affiliates, as if it were not the Trustee.
SECTION 20. No Recourse Against Others. A director, officer,
--------------------------
employee or stockholder, as such, of the Corporation shall not have any
liability for any obligations of the Corporation under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of Notes by accepting this Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 21. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
24
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights.]
The undersigned owner of this Note hereby irrevocably elects to have
the Corporation repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 12 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be repaid pursuant to Section 13 hereof, or to the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 14 hereof. Specified
below is the denomination or denominations (which shall be $1,000 or an integral
multiple thereof in excess thereof or, if the Note is denominated in a currency
other than U.S. Dollars, an Authorized Denomination) of the Note or Notes to be
issued to the Holder for the portion of the within Note not being repaid (in the
absence of any specification, one such Note will be issued for the portion not
being repaid):
__________________________________ ______________________________________
Dated: ___________________________ Signature
Sign exactly as name appears on the
front of this Note.
Principal Amount to be repaid if Indicate address where check is to be
amount to be repaid is less than the sent:_________________________________
entire Principal Amount of this Note _______________________________________
(the Principal Amount remaining must be _______________________________________
an authorized denomination)
$_____________________________
(which shall be an integral multiple of
$1,000 or, if another authorized
denomination is specified on the SOCIAL SECURITY OR OTHER
face hereof under "Authorized TAXPAYER ID NUMBER
Denominations", an amount equal to
the minimum authorized denomination)). _______________________________________
25
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT Custodian
________________________________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
________________________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
26
<PAGE>
_____________________________________________________________________ the within
Note and all rights thereunder, hereby irrevocably constituting and appointing
_______________ attorney to transfer said Note on the books of the Corporation,
with full power of substitution in the premises.
Dated:_______________________ ____________________________________
Signature
Sign exactly as name appears on the front of
this Note (SIGNATURE MUST BE GUARANTEED by a
commercial bank, a trust company or by a
member of the New York Stock Exchange which
is a member of an approved signature
guarantee medallion program pursuant to
Securities and Exchange Commission
Rule 17Ad-15)
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
27
<PAGE>
EXHIBIT 4.3
REGISTERED NO.: CUSIP NO.:
[Face of Note]
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co., or 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 ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
This Note is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Note is exchangeable for Notes registered in the
name of a Person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in such limited
circumstances.
THIS NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
BANKERS TRUST NEW YORK CORPORATION
SUBORDINATED MEDIUM-TERM NOTE, SERIES A
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
(Fixed Rate Note)
-----------
GLOBAL NOTE
-----------
The following summary of terms is subject to
the information set forth on the reverse hereof:
<TABLE>
<S> <C>
Principal Amount: $_____________ Optional Extensions of Stated Maturity by the
Corporation: [ ] Yes [ ] No
Issue Price: ___% Extension Period: ___________________-
Number of Extension Periods: _________
Agent's Commission, if applicable: ____% Final Maturity Date: _________________
Original Issue Date: _______________
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Repurchase Price: ____%
Stated Maturity: (For Discount Securities)
---------------------------
Interest Rate: ____% per annum Optional Redemption at the Option of the
Corporation: [ ] Yes [ ] No
Interest Payment Dates : Initial Redemption Date:
[ ] Each June 15 and December 15 ------------------
[ ] Other: Initial Redemption Percentage:
Each -----------
-------------------------------------------- Annual Redemption Percentage Reduction:
- ------------------------------------------------- --
Commencing: -----------------------------------------------
--------------------------------------
Regular Record Dates (if other than as Optional Repayment at the Option of the
specified below): Each Holder: [ ] Yes [ ] No
Optional Repayment Dates:
- ------------------------------------------------- ----------------
-----------------------------------------------
Optional Interest Reset by Corporation: Optional Repayment Prices:
[ ] Yes [ ] No --------------------
Optional Interest Reset Dates: -----------------------------------------------
------------------
- ------------------------------------------------- Amortizing Note: [ ] Yes [ ] No
(see attached annex for details) Basis or formula for amortization of principal
Original Issue Discount Note: [ ] Yes [ ] No and/or interest of Note:
Yield to Maturity: Payment dates for amortization:
OID for U.S. Federal Income Tax Purposes: [ ] Each March 15, June 15, September 15 and
December 5
- ------------------------------------------------- [ ] Each June 15 and December 15
[ ] Other: Each
Specified Currency (check one; if other than -------------------------------
U.S. Dollars, see attached for exchange rate Currency Indexed Note: [ ] Yes [ ] No
and other information): Currency I:
[ ] U.S. Dollars (USD or U.S.$) ------------------------------
[ ] European Currency Units (ECU) Currency II:
[ ] Australian Dollars (AUD or AUS$) ------------------------------
[ ] British Pound (GBP or UK (Pounds)) Base Exchange Rate:
[ ] Canadian Dollars (CAD or CAN$) -----------------------
[ ] German Marks (DEM or DM) Leverage Factor "[ ]":
[ ] Italian Lire (ITL or Lire) -------------------
[ ] Japanese Yen (JPY or (Yen)) Principal Indexed: [ ] Yes [ ] No
[ ] Swiss Francs (CHF or SWFr) [ ] Principal to increase when Spot Rate
[ ] Other exceeds Base Rate and decrease when Spot Rate is
less than Base Exchange Rate.
Holder has Option to Elect Payments in [ ] Principal to decrease when Spot Rate
Specified Currency (if Specified Currency is exceeds Base Exchange Rate and increase
when Spot Rate is less than Base Exchange
Rate.
Interest Indexed: [ ] Yes [ ] No
[ ] Interest to increase when Spot Rate exceeds
Base Exchange Rate and increase when Spot
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
not U.S. Dollars): Rate is less than Base Exchange Rate.
[ ] Yes [ ] No
[ ] Interest to decrease when Spot Rate exceeds
Authorized Denominations (if other than Base Exchange Rate and increase when Spot
$1,000 and any integral multiple thereof or if Rate is less than Base Exchange Rate.
Specified Currency is not U.S. Dollars): Commodity Indexed Note (if yes, see attached
$_______ annex for additional information): [ ] Yes [ ] No
Calculation Agent (if other than Bankers Trust
Company): ________________________
Other Provisions:
Annex Attached: [ ] Yes [ ] No
(and incorporated herein by reference)
</TABLE>
BANKERS TRUST NEW YORK CORPORATION, a corporation duly organized and
existing under the laws of the State of New York (herein called the
"Corporation", which term includes any successor under the Indenture referred to
on the reverse hereof), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the Principal Amount specified above, on the Stated
Maturity specified above, and to pay interest thereon at the Interest Rate or
Rates specified above from and including the Original Issue Date specified above
or from and including the most recent Interest Payment Date specified above to
which interest has been paid or duly provided for, as the case may be, until the
Principal Amount is paid or made available for payment.
Interest will be paid on the Interest Payment Date or Dates specified
above, commencing with the first such Interest Payment Date next succeeding the
Original Issue Date (except as provided below), until the principal hereof is
paid or made available for payment, and at Maturity. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will be paid
to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the Regular Record Date specified above
next preceding such Interest Payment Date; provided, however, that the first
payment of interest on any Note originally issued between a Regular Record Date
and the related Interest Payment Date shall be made on the second Interest
Payment Date following the Original Issue Date to the Person in whose name this
Note is registered on the Regular Record Date relating to such second Interest
Payment Date. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder of such Note on such Regular Record Date and may either be paid to
the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed (after receipt of notice from the
Corporation of a proposed payment of defaulted interest) by the Trustee (as
hereinafter defined), notice of which shall be given to the Holders of Notes not
less than 10 calendar days preceding such Special Record Date, or may be paid in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Notwithstanding the foregoing, interest payable at maturity shall be payable to
the person to whom the Principal Amount hereof is payable.
3
<PAGE>
Except as provided on the face hereof and in Section 9 on the reverse
of this Note, payments of principal of, and premium, if any, and interest on,
this Note shall be made against surrender of this Note at the Corporate Trust
Office of the Trustee, or at such other office or agency of the Corporation as
may be designated by it for such purpose in the Borough of Manhattan, The City
of New York, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts; provided, however, that, at the option of the Corporation, payments of
interest may be made by check or wire transfer mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
THIS NOTE SHALL NOT BE VALID OR OBLIGATORY FOR ANY PURPOSE UNTIL THE
CERTIFICATE OF AUTHENTICATION HEREON SHALL HAVE BEEN SIGNED BY THE MANUAL
SIGNATURE OF AN AUTHORIZED OFFICER OF THE TRUSTEE UNDER THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF OR BY THE MANUAL SIGNATURE OF AN AUTHORIZED OFFICER OF
THE AUTHENTICATION AGENT ON BEHALF OF THE TRUSTEE.
4
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed.
Dated: BANKERS TRUST NEW YORK CORPORATION
By: ____________________________________
Name:
Title:
ATTEST:
_______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated herein issued under
the within-mentioned Indenture.
MARINE MIDLAND BANK, as Trustee
By: BANKERS TRUST COMPANY, as Authenticating Agent
By: ____________________________________
Authorized Signatory
5
<PAGE>
[Reverse of Note]
SECTION 1. General. This Note is one of a duly authorized issue of
-------
notes of the Corporation (the "Notes") constituting part of the series of
Securities (as defined in the Indenture referred to below) designated on the
face hereof, issued or to be issued under the Indenture, dated as of April 1,
1992, as supplemented by the First Supplemental Indenture, dated as of January
15, 1993, and as further supplemented by the Second Supplemental Indenture,
dated as of October 1, 1997, thereto (collectively, the "Indenture"), duly
executed and delivered by the Corporation to Marine Midland Bank (formerly
Marine Midland Bank N.A.), as Trustee, to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Corporation and the Holders of the Securities. The Securities of
this series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest at different rates, may be subject to
different redemption provisions, may be subject to different sinking, purchase
or analogous funds and may otherwise vary as provided in the Indenture.
SECTION 2. Paying Agent, Calculation Agent and Security Registrar.
------------------------------------------------------
Initially, Bankers Trust Company will act as Paying Agent, Calculation Agent and
Security Registrar (each as defined below). The Corporation may change any
Paying Agent, Calculation Agent, Security Registrar or co-registrar without
notice. The Corporation may act in any such capacity. If there shall cease to be
a Paying Agent, references herein to the Paying Agent shall be deemed to be
references to the Trustee.
SECTION 3. Subordination. The indebtedness evidenced by this Note is,
-------------
to the extent provided in Article Fourteen of the Indenture, subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness, and this Note is issued subject to the provisions of the Indenture
with respect thereto. Each Holder of this Note, by accepting the same, agrees
that each holder of Senior Indebtedness, whether created or acquired before or
after the issuance of the Notes, shall be deemed conclusively to have relied on
such provisions in acquiring, or in continuing to hold, such Senior
Indebtedness. The Indenture also provides that if, upon the occurrence of
certain events of bankruptcy or insolvency relating to the Company, there
remains, after giving effect to such subordination provisions, any amount of
cash, property or securities available for payment or distribution in respect of
Notes (as defined in the Indenture, "Excess Proceeds"), and if, at such time,
any Entitled Person has not received payment in full of all amounts due or to
become due on or in respect of Other Financial Obligations, then such Excess
Proceeds shall first be applied to pay or provide for the payment in full of
such Other Financial Obligations before any payment or distribution may be made
in respect of Notes. This Note is also issued subject to the provisions of the
Indenture regarding payments to Entitled Persons in respect of Other Financial
Obligations. Each Holder of this Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination of this Note and payment of Excess Proceeds as provided in the
Indenture and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 4. Denominations, Transfer, Exchange. The Notes are issuable
---------------------------------
in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000 in excess thereof or, if another authorized denomination is
specified on the face hereof, in such other authorized denomination. The
transfer of Notes will be registered and Notes may be exchanged as provided in
the Indenture. The Security Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
6
<PAGE>
SECTION 5. Persons Deemed Owners. The Corporation, the Trustee and
---------------------
any agent of the Corporation or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for the purpose of receiving payment
as herein provided and for all other purposes, whether or not this Note be
overdue, and neither the Corporation, the Trustee nor any agent of the
Corporation or the Trustee shall be affected by notice to the contrary.
SECTION 6. Amendments and Waivers. The Indenture permits, with
----------------------
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Corporation and the rights of
the Holders of the Securities of each series to be affected under the Indenture
at any time by the Corporation and the Trustee with the consent of the Holders
of at least 66-2/3% in principal amount of the Securities at the time
outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time outstanding, on behalf of 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 hereof or in lieu hereof, whether or not
notation of such waiver is made upon this Security.
SECTION 7. Defaults and Remedies. If an Event of Default with
---------------------
respect to the Notes occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Notes may declare all the Notes to be due
and payable immediately. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
waive an Event of Default and rescind any related declaration and also may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Notes notice of any continuing Event of Default if it
determines that withholding notice is in their interests.
SECTION 8. Interest Rate Calculations; Payments. Unless otherwise
------------------------------------
specified on the face hereof, interest on this Note will accrue from and
including the date of issue or from and including the immediately preceding
Interest Payment Date in respect of which interest has been paid or duly
provided for, as the case may be, to but excluding the Interest Payment Date or
the Maturity, as the case may be. Unless otherwise specified on the face
hereof, interest on this Note shall be computed on the basis of a 360-day year
of twelve 30-day months.
If any Interest Payment Date or the Maturity for this Note is a day
that is not a Business Day, all payments to be made on such day will be made on
the next succeeding Business Day with the same force and effect as if made on
the due date, and no additional interest shall be payable as a result of such
delay in payment.
SECTION 9. Amortizing Notes. Unless otherwise specified on the face
----------------
hereof, if this Note is an Amortizing Note, as specified on the face hereof,
payments with respect to this Note will be applied first to interest due and
payable hereon and then to the reduction of the unpaid principal amount hereof.
If this Note is an Amortizing Note, a table setting forth repayment information
in respect of this Note will be provided to the original purchaser hereof and
will be available, upon request, to subsequent Holders.
7
<PAGE>
SECTION 10. Currency of Payment. Unless otherwise specified on the
-------------------
face hereof, the principal of, and any premium and interest on, this Note shall
be payable by the Corporation in the Specified Currency for this Note. Unless
otherwise specified on the face hereof, if the Specified Currency for this Note
is other than U.S. Dollars, (i) the Corporation shall (unless otherwise
specified on the face hereof) arrange to convert all payments in respect of this
Note into U.S. Dollars in the manner described in the following paragraph; and
(ii) the Holder of this Note may (unless otherwise specified on the face hereof)
elect to receive all payments in respect of this Note in the Specified Currency
by delivering a written notice to the Paying Agent for such Note not later than
fifteen calendar days prior to the applicable payment date, except under the
circumstances described below. Such election shall remain in effect until
revoked by written notice to such Paying Agent received not later than fifteen
calendar days prior to the applicable payment date.
If the Specified Currency of this Note is other than U.S. Dollars, the
amount of any U.S. Dollar payment in respect of this Note will be determined by
the calculation agent selected by the Corporation (the "Calculation Agent")
based on the highest firm bid quotation expressed in U.S. Dollars received by
the Calculation Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date (or, if no such rate
is quoted on such date, the last date on which such rate was quoted), from three
(or, if three are not available, then two) recognized foreign exchange dealers
in The City of New York (one of which may be an Agent (as such term is used in
the Distribution Agreement dated October 1, 1997 relating to the Notes) and
another of which may be the Calculation Agent) agreed upon by the Corporation
and the Calculation Agent, for the purchase by the quoting dealer, for
settlement on such payment date, of the aggregate amount of such Specified
Currency payable on such payment date in respect of all Notes denominated in
such Specified Currency (such rate, the "Market Exchange Rate"). All currency
exchange costs will be borne by the Holders of such Notes by deductions from
such payments. If fewer than two such bid quotations are available, such
payments will be made in such Specified Currency, unless such Specified Currency
is unavailable due to the imposition of exchange controls or to other
circumstances beyond the Corporation's control or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, in which case such payments shall be made as described below.
Except as specified in the following paragraphs, if payment in respect
of this Note is required to be made in a Specified Currency other than U.S.
Dollars and such currency is unavailable due to the imposition of exchange
controls or other circumstances beyond the Corporation's control or is no longer
used by the government of the country issuing such currency or for the
settlement of transactions by public institutions of or within the international
banking community, then all payments in respect of this Note shall be made in
U.S. Dollars; provided that the Corporation, at its option, may resume making
payments in such currency once such currency is again available or so used. The
amounts so payable on any date in such currency shall be converted into U.S.
Dollars on the basis of the most recently available Market Exchange Rate for
such currency or as otherwise indicated on the face hereof. Any payment in
respect of this Note made under such circumstances in U.S. Dollars will not
constitute an Event of Default under the Indenture.
If payment in respect of this Note is required to be made in ECUs and
ECUs are no longer used in the European Monetary System, then all payments in
respect of this Note shall be made in U.S. Dollars, provided that the
Corporation, at its option, may resume making payments in ECUs once ECUs are
again so used. The amount of each payment in U.S. Dollars shall be computed on
the basis of the equivalent of ECUs in U.S. Dollars, determined as described
below, as of the second Business Day prior to the date on which such payment is
due.
8
<PAGE>
The equivalent of ECU in U.S. Dollars as of any date shall be
determined by the Calculation Agent on the following basis. The component
currencies of ECU for this purpose (the "Components") shall be the currency
amounts that were components of ECU as of the last date on which ECU were used
in the European Monetary System. The equivalent of ECU in U.S. Dollars shall be
calculated by aggregating the U.S. Dollar equivalents of the Components. The
U.S. Dollar equivalent of each Component shall be determined by the Calculation
Agent on the basis of the most recently available Market Exchange Rates for such
Components or as otherwise specified on the face hereof.
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more component
currencies are consolidated into a single currency, the amounts of those
currencies as Components shall be replaced by an amount in such single currency
equal to the sum of the amounts of the consolidated component currencies
expressed in such single currency. If any component currency is divided into two
or more currencies, the amount of that currency as a Component shall be replaced
by amounts of such two or more currencies, each of which shall be equal to the
amount of the former component currency divided by the number of currencies into
which that currency was divided.
All determinations referred to above made by the Calculation Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holders of this Note.
SECTION 11. Currency Indexed Notes. If it is specified on the face
----------------------
hereof that this Note is a Currency Indexed Note, then unless otherwise
specified on the face hereof, the principal of, and any premium and interest on,
this Note will be calculated in the manner described below.
If it is specified on the face hereof that the principal of this Note
is indexed, then unless otherwise specified on the face hereof, principal at
Maturity of this Note will be payable in an amount equal to the Principal Amount
of this Note, plus or minus an amount determined by reference to the difference
between the Base Exchange Rate specified on the face hereof, and the rate (the
"Spot Rate") at which Currency I specified on the face hereof can be exchanged
for Currency II specified on the face hereof on the second Business Day prior to
the Maturity of this Note (the "Indexed Principal Determination Date"), as
determined by the Calculation Agent. If it is specified on the face hereof that
the interest on this Note is indexed, then unless otherwise specified on the
face hereof, the interest payable on any Interest Payment Date or at Maturity
will be payable in an amount equal to the stated interest rate of this Note,
plus or minus a rate adjustment determined by reference to the difference
between the Base Exchange Rate specified on the face hereof, and the Spot Rate
on the second Business Day prior to the applicable Interest Payment Date or the
Maturity of this Note (the "Indexed Interest Determination Date") as determined
by the Calculation Agent, applied to the average Principal Amount outstanding of
such Note for the period being measured. For the purpose of this section, the
Spot Rate on the Indexed Principal Determination Date or the Indexed Interest
Determination Date, as the case may be, will be the average of quotations for
settlement on the date of Maturity or the relevant Interest Payment Date, as the
case may be, obtained by the Calculation Agent from three (or if three are not
available, then two) Currency Dealers in The City of New York (which may include
the Calculation Agent and/or one or more of the Agents) at approximately 11:00
A.M., New York City time, on the Indexed Principal Determination Date or the
relevant Indexed Interest Determination Date, as the case may be. If so
specified on the face hereof, the rate adjustment may also be determined by
reference to a leverage factor ("L") specified on the face hereof.
9
<PAGE>
Unless otherwise specified on the face hereof, the formulas to be used
by the Calculation Agent to determine the principal and/or the interest payable
at Maturity or on any Interest Payment Date will be as follows:
Principal
A. If it is specified on the face hereof that principal is to increase
when the Spot Rate exceeds the Base Exchange Rate, and to decrease when the Spot
Rate is less than the Base Exchange Rate, the formula to determine the principal
of a Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x L x [Spot Rate-Base Exchange Rate])
-------------------------------
Spot Rate
However, in no event will the principal payable at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will sell
Currency I in exchange for a single unit of Currency II on the Indexed Principal
Determination Date.
B. If it is specified on the face hereof that principal is to increase
when the Base Exchange Rate exceeds the Spot Rate, and to decrease when the Base
Exchange Rate is less than the Spot Rate, the formula to determine the principal
amount of a Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x L x [Base Exchange Rate-Spot Rate])
-------------------------------
Spot Rate
However, in no event will the principal payable at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will purchase
Currency I in exchange for a single unit of Currency II on the Indexed Principal
Determination Date.
Interest
A. If it is specified on the face hereof that interest is to increase
when the Spot Rate exceeds the Base Exchange Rate, and to decrease when the Spot
Rate is less than the Base Exchange Rate, the formula to determine the rate at
which interest is payable on any Interest Payment Date or at Maturity on a
Currency Indexed Note shall equal:
Stated Interest Rate + (L x [Spot Rate-Base Exchange Rate])
-------------------------------
Spot Rate
However, in no event will the interest payable on any Interest Payment Date or
at Maturity to be less than zero.
10
<PAGE>
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will sell
Currency I in exchange for a single unit of Currency II on the Indexed Interest
Determination Date.
B. If it is indicated on the face hereof that interest is to increase
when the Base Exchange Rate exceeds the Spot Rate, and to decrease when the Base
Exchange Rate is less than the Spot Rate, the formula to determine the Rate at
which interest is payable on any Interest Payment Date or at Maturity on a
Currency Indexed Note shall equal:
Stated Interest Rate + (L x [Base Exchange Rate-Spot Rate])
-------------------------------
Spot Rate
However, in no event will the interest payable on any Interest Payment Date or
at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will purchase
Currency I in exchange for a single unit of Currency II on the Indexed Interest
Determination Date.
SECTION 12. Redemption. If so specified on the face hereof, this
----------
Note may be redeemed at the option of the Corporation as a whole or from time to
time in part, on or after the date designated as the Initial Redemption Date on
the face hereof, in whole or from time to time in part in increments of $1,000
or the minimum denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be an authorized denomination), at the
Redemption Price (as defined below). The "Redemption Price" shall be equal to
the sum of (i) the Initial Redemption Percentage specified on the face hereof,
(as adjusted by the Annual Redemption Percentage Reduction, if any, specified on
the face hereof) multiplied by the principal amount hereof to be redeemed, plus
(ii) the unpaid interest accrued on the Principal Amount hereof to be redeemed
to the date of redemption, provided that interest installments that are due on
or prior to the date of redemption will be payable to the Holder of this Note at
the close of business on the relevant Regular Record Date referred to on the
face hereof, as provided in the Indenture. The Initial Redemption Percentage, if
any, applicable to this Note shall decline on each anniversary of the Initial
Redemption Date by an amount equal to the Annual Redemption Percentage
Reduction, if any, specified on the face hereof, until the Redemption Price is
equal to 100% of the unpaid Principal Amount hereof or the portion thereof to be
redeemed.
The Corporation may exercise such option by causing the security
registrar for this Note (the "Security Registrar") to mail a notice of such
redemption not more than 60 nor less than 30 calender days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
SECTION 13. Repayment. If so specified on the face hereof, this Note
---------
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note to be repaid prior to
Stated Maturity at the Option of the Holder, the Security Registrar must receive
at least 30 but not more than 45 calendar days prior to an Optional Repayment
Date (i) this Note with the form below entitled "Option to Elect Repayment" duly
11
<PAGE>
completed or (ii) a telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States of America setting forth the name of
the Holder of this Note, the Principal Amount of this Note, the Principal Amount
of the Note to be repaid, the certificate number or a description of the tenor
and terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee by a commercial bank, a trust company or by a
member of the New York Stock Exchange which is a member of an approved signature
guarantee medallion program pursuant to Securities and Exchange Commission Rule
17Ad-15 that this Note with the form below entitled "Option to Elect Repayment"
duly completed will be received by the Security Registrar not later than three
Business Days after the date of such telegram, telex, facsimile transmission,
hand delivery or letter (first class, postage prepaid). If the procedure
described in clause (ii) of the preceding sentence is followed, this Note with
such form duly completed must be received by the Security Registrar by such
third Business Day. Exercise of the repayment option by the Holder of this Note
shall be irrevocable, except that a Holder who has tendered this Note for
repayment may revoke any such tender for repayment by written notice to the
Security Registrar received prior to the close of business on the tenth calendar
day prior to the repayment date. The repayment option may be exercised by the
Holder of this Note for less than the entire Principal Amount of this Note
provided that the Principal Amount of this Note remaining outstanding after such
repayment is an authorized denomination. Upon such partial repayment, this Note
shall be canceled and a new Note or Notes for the remaining Principal Amount
hereof shall be issued in the name of the Holder of this Note.
SECTION 14. Optional Interest Reset. If so specified on the face
-----------------------
hereof, the Interest Rate on this Note may be reset by the Corporation on the
date or dates or on the basis specified on the face hereof (each an "Optional
Interest Reset Date"). The Corporation may exercise such option by notifying the
Security Registrar of such exercise at least 45 but not more than 60 calendar
days prior to any Optional Interest Reset Date. If the Corporation so notifies
the Security Registrar of such exercise, the Security Registrar will send, not
later than 40 calendar days prior to each Optional Interest Reset Date, by
telegram, telex, facsimile transmission, hand delivery or letter (first class,
postage prepaid) to the Holder of this Note a notice (the "Reset Notice")
indicating (i) that the Corporation has elected to reset the Interest Rate, (ii)
such new Interest Rate and (iii) the provisions, if any, for redemption during
the period from such Optional Interest Reset Date to the next Optional Interest
Reset Date or, if there is no such next Optional Interest Reset Date, to the
Stated Maturity of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior
to an Optional Interest Reset Date, the Corporation may, at its option, revoke
the change in the Interest Rate provided for in the Reset Notice and establish a
higher Interest Rate for the Subsequent Interest Period commencing on such
Optional Interest Reset Date by causing the Security Registrar to send by
telegram, telex, facsimile transmission, hand delivery or letter (first class,
postage prepaid) notice of such Interest Rate resulting in a higher interest
rate to the Holder of this Note. Such notice shall be irrevocable. All Notes
with respect to which the Interest Rate is reset on an Optional Interest Reset
Date will bear such Interest Rate, whether or not tendered for repayment as
provided in the next paragraph.
If the Corporation elects prior to an Optional Interest Reset Date to
reset the Interest Rate on this Note, the Holder of this Note will have the
option to elect repayment of this Note by the Corporation on such
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<PAGE>
Optional Interest Reset Date at a price equal to the Principal Amount hereof
plus interest accrued and unpaid thereon to such Optional Interest Reset Date.
In order to obtain repayment on an Optional Interest Reset Date, the Holder must
follow the procedures specified under Section 13 for optional repayment except
that the period for delivery or notification to the Security Registrar shall be
at least 25 but not more than 35 calendar days prior to such Optional Interest
Reset Date. If the Holder has tendered this Note for repayment following receipt
of a Reset Notice, the Holder may revoke such tender for repayment by written
notice to the Security Registrar received prior to 5:00 P.M., New York City
time, on the tenth calendar day prior to such Optional Interest Reset Date.
SECTION 15. Optional Extension of Maturity. If so specified on the
------------------------------
face hereof, the Stated Maturity of this Note may be extended at the option of
the Corporation for a period or periods of from one to five whole years each, as
specified on the face hereof (each, an "Extension Period") up to but not beyond
the date (the "Final Maturity Date") specified on the face hereof. The
Corporation may exercise such option with respect to this Note by notifying the
Security Registrar of such exercise at least 45 but not more than 60 calendar
days prior to the Stated Maturity of this Note in effect prior to the exercise
of such option (the "Original Stated Maturity Date"). If the Corporation so
notifies the Security Registrar of such exercise, the Security Registrar will
send, not later than 40 calendar days prior to the Original Stated Maturity
Date, by telegram, telex, facsimile transmission, hand delivery or letter (first
class, postage prepaid) to the Holder of this Note, a notice (the "Extension
Notice") indicating (i) that the Corporation has elected to extend the Stated
Maturity of this Note, (ii) the new Stated Maturity, (iii) the Interest Rate
applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period, including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during such Extension Period. Upon the Security Registrar's
sending of the Extension Notice, the Stated Maturity of this Note shall be
extended automatically and, except as modified by the Extension Notice and as
described in the next two paragraphs, this Note will have the same terms as
prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior
to the Original Stated Maturity Date of this Note, the Corporation may, at its
option, revoke the change in the Interest Rate provided for in the Extension
Notice and establish a Interest Rate for the Extension Period by causing the
Security Registrar to send by telegram, telex, facsimile transmission, hand
delivery or letter (first class, postage prepaid) notice of such Interest Rate
to the Holder of this Note. Such notice shall be irrevocable. All Notes with
respect to which the Stated Maturity is extended will bear such Interest Rate
for the Extension Period, whether or not tendered for repayment as provided in
the next paragraph.
If the Corporation elects to extend the Stated Maturity of this Note,
the Holder will have the option to elect repayment of this Note by the
Corporation on the Original Stated Maturity Date at a price equal to the
Principal Amount hereof, plus interest accrued and unpaid thereon to such date.
In order to obtain repayment on the Original Stated Maturity Date, the Holder
must follow the procedures specified under Section 13 for optional repayment,
except that the period for delivery or notification to the Security Registrar
shall be at least 25 but not more than 35 calendar days prior to the Original
Stated Maturity Date. A Holder who has tendered this Note for repayment
following receipt of an Extension Notice may revoke such tender for repayment by
written notice to the Security Registrar received prior to 5:00 P.M., New York
City time, on the tenth calendar day prior to the Original Stated Maturity Date.
SECTION 16. Sinking Fund. This Note will not be subject to any
------------
sinking fund.
13
<PAGE>
SECTION 17. Original Issue Discount Notes. Notwithstanding anything
-----------------------------
herein to the contrary, unless otherwise specified on the face hereof, if it is
specified on the face hereof that this Note is an Original Issue Discount Note,
the amount payable if the Principal Amount hereof is declared to be due and
payable prior to the Stated Maturity hereof by reason of an Event of Default, or
if this Note is redeemed or repaid prior to the Stated Maturity hereof, shall be
the Amortized Face Amount (as defined below) of this Note as of the date of
declaration, redemption or repayment, as the case may be. The "Amortized Face
Amount" of this Note shall be the amount equal to (i) the Principal Amount of
this Note multiplied by the Issue Price specified on the face hereof plus (ii)
that portion of the difference between the dollar amount determined pursuant to
the preceding clause (i) and the Principal Amount hereof that has accreted at
the Yield to Maturity specified on the face hereof (computed in accordance with
generally accepted United States bond yield computation principles) to such date
of declaration, redemption or payment, but in no event shall the Amortized Face
Amount of this Note exceed its Principal Amount.
SECTION 18. Defined Terms. Unless otherwise defined herein, all
-------------
capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture; and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Notes.
As used herein, "Business Day" means, unless otherwise specified on the face
hereof, any Monday, Tuesday, Wednesday, Thursday or Friday (i) that is not a day
on which banking institutions are authorized or required by law, regulation or
executive order to close in any of The City of New York, the Principal Financial
Center of the Specified Currency of this Note or, if interest on this Note is
payable in a currency or currency unit other than such Specified Currency (the
"Interest Currency"), the Principal Financial Center of such Interest Currency
or that, if the Specified Currency or Interest Currency is the European Currency
Unit (the "ECU"), is an ECU Business Day (as defined below). "ECU Business Day"
means any day other than a day designated as an ECU Non-Settlement Day by the
ECU Banking Association in Paris or otherwise generally regarded in the ECU
interbank market as a day on which payments on ECUs shall not be made.
SECTION 19. Calculations. All percentages resulting from any calculations
------------
under this Note will be rounded, if necessary, to the nearest one hundred
thousandth of a percentage point (with five one-millionths of a percentage point
being rounded upward) and all currency or currency units or dollar amounts used
in or resulting from any such calculation in respect of the Notes will be
rounded to the nearest one-hundredth of a unit (with five one-thousandths being
rounded upward) or nearest cent (with one-half cent being rounded upward), as
the case may be.
SECTION 20. Trustee Dealings with Corporation. Subject to Sections
---------------------------------
608 and 613 of the Indenture, the Trustee, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Corporation or its affiliates, and may otherwise deal with the Corporation or
its affiliates, as if it were not the Trustee.
SECTION 21. No Recourse Against Others. A director, officer,
--------------------------
employee or stockholder, as such, of the Corporation shall not have any
liability for any obligations of the Corporation under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of Notes by accepting this Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 22. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
14
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights.]
The undersigned owner of this Note hereby irrevocably elects to have
the Corporation repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 13 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be repaid pursuant to Section 14 hereof, or to the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 15 hereof. Specified
below is the denomination or denominations (which shall be $1,000 or an integral
multiple thereof in excess thereof or, if the Note is denominated in a currency
other than U.S. Dollars, an Authorized Denomination) of the Note or Notes to be
issued to the Holder for the portion of the within Note not being repaid (in the
absence of any specification, one such Note will be issued for the portion not
being repaid):
<TABLE>
<S> <C>
__________________________________ ____________________________________
Dated: ___________________________ Signature
Sign exactly as name appears on the front of this Note.
Principal Amount to be repaid if Indicate address where check is to be sent:
amount to be repaid is less than the _______________________________________
entire Principal Amount of this Note _______________________________________
(the Principal Amount remaining must _______________________________________
be an authorized denomination)
$_____________________________
(which shall be an integral multiple
of $1,000 or, if another authorized
denomination is specified on the SOCIAL SECURITY OR OTHER
face hereof under "Authorized TAXPAYER ID NUMBER
Denominations", an amount equal to
the minimum authorized denomination)). _______________________________________
</TABLE>
15
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT Custodian
________________________________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
________________________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
16
<PAGE>
_____________________________________________________________________ the within
Note and all rights thereunder, hereby irrevocably constituting and appointing
_______________ attorney to transfer said Note on the books of the Corporation,
with full power of substitution in the premises.
Dated:_______________ ____________________________________
Signature
Sign exactly as name appears on the front of this
Note (SIGNATURE MUST BE GUARANTEED by a commercial
bank, a trust company or by a member of the New
York Stock Exchange which is a member of an
approved signature guarantee medallion program
pursuant to Securities and Exchange Commission
Rule 17Ad-15).
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
17
<PAGE>
EXHIBIT 4.4
REGISTERED NO.: CUSIP NO.:
[Face of Note]
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co., or 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 ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
This Note is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Note is exchangeable for Notes registered in the
name of a Person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in such limited
circumstances.
THIS NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
BANKERS TRUST NEW YORK CORPORATION
SUBORDINATED MEDIUM-TERM NOTE, SERIES A
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
(Floating Rate Note)
-----------
GLOBAL NOTE
-----------
The following summary of terms is subject to
the information set forth on the reverse hereof:
<TABLE>
<S> <C>
Principal Amount: $_____________ Specified Currency (check one; if other than U.S.
Dollars, see attached for exchange rate and other
Issue Price: ___% information):
[_] U.S. Dollars (USD or U.S.$)
Agent's Commission, if applicable: ____% [_] European Currency Units (ECU)
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Original Issue Date: _______________ [_] Australian Dollars (AUD or AUS$)
[_] British Pound (GBP or UK (Pounds))
Stated Maturity: _______________ (Specify [_] Canadian Dollars (CAD or CAN$)
Interest Payment Date that is to be Stated [_] German Marks (DEM or DM)
Maturity) [_] Italian Lire (ITL or Lire)
[_] Japanese Yen (JPY or (Yen))
Interest Rate Basis: (check one) [_] Swiss Francs (CHF or SWFr)
[_] CD Rate [_] Other ________________________
[_] CMT Rate (Designated CMT Telerate
page, if not 7052:__________) Holder has Option to Elect Payments in
[_] Commercial Paper Rate Specified Currency (if Specified Currency is not
[_] 11th District Cost of Funds Rate U.S. Dollars):
[_] Federal Funds Rate [_] Yes [_] No
[_] Kenny Rate
[_] LIBOR Authorized Denominations (if other than $1,000
[_] LIBOR Reuters and any integral multiple thereof or if Specified
[_] LIBOR Telerate Currency is not U.S. Dollars): $_______
Designated LIBOR Currency (if other
than U.S. Dollars):________________ Optional Extensions of Stated Maturity by the
[_] Prime Rate Corporation: [_] Yes [_] No
[_] Treasury Rate Extension Period: ____________________
[_] Other ________________________ Number of Extension Periods: _________
(see attached) Final Maturity Date: _________________
Initial Interest Rate: ___% Repurchase Price: ____%
(For Discount Securities)
Maximum Interest Rate: ___%
Optional Redemption at the Option of the
Maximum Interest Rate: ___% Corporation: [_] Yes [_] No
Initial Redemption Date: _______________
Spread: (+/-): ___bp Initial Redemption Percentage:___________
Annual Redemption Percentage
Spread Multiplier: ___% Reduction: _________________
Reset Periods: (Circle one) Optional Repayment at the Option of the
(Daily, Weekly, Monthly, Quarterly, Holder: [_] Yes [_] No
Semiannually or Annually) Optional Repayment Dates: _____________
_______________________________________
Interest Reset Dates (if other than as Optional Repayment Prices: ____________
specified below): Each _____________________ _______________________________________
____________________________________________
Amortizing Note: [_] Yes [_] No
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
Interest Payment Dates: Each _______________ Basis or formula for amortization of principal
____________________________________________ and/or interest of Note: _____________________
Commencing:_________________________________ Payment rates for amortizations:
Regular Record Dates (if other than as [_] Each March 15, June 15, September 15 and
specified below): Each _____________________ December 15
____________________________________________ [_] Each June 15 and December 15
[_] Other: Each_____________________
Calculation Dates (if other than as
specified below): Each _____________________ Currency Indexed Note: [_] Yes [_] No
____________________________________________ Currency I: _________________
Currency II: _________________
Interest Determination Dates (if other than as Base Exchange Rate:___________
specified below): Each _____________________ Leverage Factor "L": __________
____________________________________________ Principal Indexed: [_] Yes [_] No
[_] Principal to increase when Spot Rate exceeds
Index Maturity: ____________________________ Base Exchange Rate and decrease when Spot
Rate is less than Base Exchange Rate.
Optional Interest Reset by Corporation: [_] Principal to decrease when Spot Rate
[_] Yes [_] No exceeds Base Exchange Rate and decrease
Optional Interest Reset Dates:______________ when Spot Rate is less than Base Exchange
____________________________________________ Rate.
(see attached annex for details) Interest Indexed: [_] Yes [_] No
[_] Interest to increase when Spot Rate exceeds
Original Issue Discount Note: [_] Yes [_] No Base Exchange Rate and decrease when Spot
Yield to Maturity:__________________________ Rate is less than Base Exchange Rate.
OID for U.S. Federal Income Tax Purposes: [_] Interest to decrease when Spot Rate exceeds
____________________________________________ Base Exchange Rate and increase when Spot
Rate is less than Base Exchange Rate.
Commodity Indexed Note (if yes, see attached
annex for additional information): [_] Yes [_] No
Calculation Agent (if other than Bankers Trust
Company): ________________________
Other Provisions:
Annex Attached: [_] Yes [_] No
(and incorporated herein by reference)
</TABLE>
BANKERS TRUST NEW YORK CORPORATION, a corporation duly organized and
existing under the laws of the State of New York (herein called the
"Corporation", which term includes any successor under the Indenture referred to
on the reverse hereof), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the Principal Amount specified above, on the Stated
Maturity specified above, and to
3
<PAGE>
pay interest thereon as provided herein from and including the Original Issue
Date specified above or from and including the most recent Interest Payment Date
specified above to which interest has been paid or duly provided for, as the
case may be, until the Principal Amount is paid or made available for payment.
Interest will be paid on the Interest Payment Date or Dates specified
above, at the rate per annum determined in accordance with the provisions on the
reverse hereof, commencing with the first such Interest Payment Date next
succeeding the Original Issue Date (except as provided below), until the
principal hereof is paid or made available for payment, and at Maturity. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the Regular Record
Date specified above next preceding such Interest Payment Date; provided,
however, that the first payment of interest on any Note originally issued
between a Regular Record Date and the related Interest Payment Date shall be
made on the second Interest Payment Date following the Original Issue Date to
the Person in whose name this Note is registered on the Regular Record Date
relating to such second Interest Payment Date. Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder of such Note on such Regular
Record Date and may either be paid to the Person in whose name this Note (or one
or more predecessor Notes) is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed (after
receipt of notice from the Corporation of a proposed payment of defaulted
interest) by the Trustee (as hereinafter defined), notice of which shall be
given to the Holders of Notes not less than 10 calendar days preceding such
Special Record Date, or may be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Notwithstanding the foregoing, interest
payable at maturity shall be payable to the person to whom the Principal Amount
hereof is payable.
Except as provided on the face hereof and in Section 9 on the reverse
of this Note, payments of principal of, and premium, if any, and interest on,
this Note shall be made against surrender of this Note at the Corporate Trust
Office of the Trustee, or at such other office or agency of the Corporation as
may be designated by it for such purpose in the Borough of Manhattan, The City
of New York, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts; provided, however, that, at the option of the Corporation, payments of
interest may be made by check or wire transfer mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
THIS NOTE SHALL NOT BE VALID OR OBLIGATORY FOR ANY PURPOSE UNTIL THE
CERTIFICATE OF AUTHENTICATION HEREON SHALL HAVE BEEN SIGNED BY THE MANUAL
SIGNATURE OF AN AUTHORIZED OFFICER OF THE TRUSTEE UNDER THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF OR BY THE MANUAL SIGNATURE OF AN AUTHORIZED OFFICER OF
THE AUTHENTICATION AGENT ON BEHALF OF THE TRUSTEE.
4
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed.
Dated: BANKERS TRUST NEW YORK CORPORATION
By: ____________________________________
Name:
Title:
ATTEST:
_______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated herein issued under
the within-mentioned Indenture.
MARINE MIDLAND BANK, as Trustee
By: BANKERS TRUST COMPANY, as Authenticating Agent
By: ____________________________________
Authorized Signatory
5
<PAGE>
[Reverse of Note]
SECTION 1. General. This Note is one of a duly authorized issue of
-------
notes of the Corporation (the "Notes") constituting part of the series of
Securities (as defined in the Indenture referred to below) designated on the
face hereof, issued or to be issued under the Indenture, dated as of April 1,
1992, as supplemented by the First Supplemental Indenture, dated as of January
15, 1993, and as further supplemented by the Second Supplemental Indenture,
dated as of October 1, 1997, thereto (collectively, the "Indenture"), duly
executed and delivered by the Corporation to Marine Midland Bank (formerly
Marine Midland Bank N.A.), as Trustee, to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Corporation and the Holders of the Securities. The Securities of
this series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest at different rates, may be subject to
different redemption provisions, may be subject to different sinking, purchase
or analogous funds and may otherwise vary as provided in the Indenture.
SECTION 2. Paying Agent, Calculation Agent and Security Registrar.
------------------------------------------------------
Initially, Bankers Trust Company will act as Paying Agent, Calculation Agent and
Security Registrar (each as defined below). The Corporation may change any
Paying Agent, Calculation Agent, Security Registrar or co-registrar without
notice. The Corporation may act in any such capacity. If there shall cease to be
a Paying Agent, references herein to the Paying Agent shall be deemed to be
references to the Trustee.
SECTION 3. Subordination. The indebtedness evidenced by this Note is,
-------------
to the extent provided in Article Fourteen of the Indenture, subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness, and this Note is issued subject to the provisions of the Indenture
with respect thereto. Each Holder of this Note, by accepting the same, agrees
that each holder of Senior Indebtedness, whether created or acquired before or
after the issuance of the Notes, shall be deemed conclusively to have relied on
such provisions in acquiring, or in continuing to hold, such Senior
Indebtedness. The Indenture also provides that if, upon the occurrence of
certain events of bankruptcy or insolvency relating to the Company, there
remains, after giving effect to such subordination provisions, any amount of
cash, property or securities available for payment or distribution in respect of
Notes (as defined in the Indenture, "Excess Proceeds"), and if, at such time,
any Entitled Person has not received payment in full of all amounts due or to
become due on or in respect of Other Financial Obligations, then such Excess
Proceeds shall first be applied to pay or provide for the payment in full of
such Other Financial Obligations before any payment or distribution may be made
in respect of Notes. This Note is also issued subject to the provisions of the
Indenture regarding payments to Entitled Persons in respect of Other Financial
Obligations. Each Holder of this Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination of this Note and payment of Excess Proceeds as provided in the
Indenture and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 4. Denominations, Transfer, Exchange. The Notes are issuable
---------------------------------
in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000 in excess thereof or, if another authorized denomination is
specified on the face hereof, in such other authorized denomination. The
transfer of Notes will be registered and Notes may be exchanged as provided in
the Indenture. The Security Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
6
<PAGE>
SECTION 5. Persons Deemed Owners. The Corporation, the Trustee and
---------------------
any agent of the Corporation or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for the purpose of receiving payment
as herein provided and for all other purposes, whether or not this Note be
overdue, and neither the Corporation, the Trustee nor any agent of the
Corporation or the Trustee shall be affected by notice to the contrary.
SECTION 6. Amendments and Waivers. The Indenture permits, with
----------------------
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Corporation and the rights of
the Holders of the Securities of each series to be affected under the Indenture
at any time by the Corporation and the Trustee with the consent of the Holders
of at least 66-2/3% in principal amount of the Securities at the time
outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time outstanding, on behalf of 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 hereof or in lieu hereof, whether or not
notation of such waiver is made upon this Security.
SECTION 7. Defaults and Remedies. If an Event of Default with
---------------------
respect to the Notes occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Notes may declare all the Notes to be due
and payable immediately. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
waive an Event of Default and rescind any related declaration and also may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Notes notice of any continuing Event of Default if it
determines that withholding notice is in their interests.
SECTION 8. Interest Rate Calculations; Payments. The interest rate
------------------------------------
on this Note will be equal to either (i) the interest rate calculated by
reference to the Interest Rate Basis specified on the face hereof plus or minus
the Spread, if any, specified on the face hereof or (ii) the interest rate
calculated by reference to the specified Interest Rate Basis specified on the
face hereof multiplied by the Spread Multiplier, if any, specified on the face
hereof. The "Spread" is the number of basis points (one basis point being equal
to one-hundredth of a percentage point), if any, specified on the face hereof as
being applicable to this Note, and the "Spread Multiplier" is the percentage, if
any, specified on the face hereof as being applicable to this Note. Specified on
the face hereof are the Interest Rate Basis and the Spread or Spread Multiplier,
if any, and the maximum or minimum interest rate limitation, if any, applicable
to this Note. In addition, specified on the face hereof are particulars as to
the Calculation Agent (if other than Bankers Trust Company (in such capacity,
the "Calculation Agent")), and the Index Maturity, Original Issue Date, interest
rate in effect for the period from the Original Issue Date to the first Interest
Reset Date specified on the face hereof (the "Initial Interest Rate"),
Calculation Dates, Interest Determination Dates, Interest Reset Dates, Reset
Periods, Regular Record Dates and Interest Payment Dates with respect to this
Note.
Unless otherwise specified on the face hereof, except as provided
below, the Interest Payment Dates applicable to this Note will be (i) if this
Note resets daily, weekly or monthly, the third Wednesday of each month or the
third Wednesday of March, June, September and December of each year, as
specified the face
7
<PAGE>
hereof; (ii) if this Note resets quarterly, the third Wednesday of March, June,
September and December of each year; (iii) if this Note resets semiannually, the
third Wednesday of each of the two months of each year specified on the face
hereof; and (iv) if this Note resets annually, the third Wednesday of the one
month of each year specified on the face hereof. Notwithstanding Section 113 of
the Indenture, if any Interest Payment Date for this Note would otherwise be a
day that is not a Business Day (as defined below), such Interest Payment Date
shall be postponed to the next day that is a Business Day, except that if the
Interest Rate Basis applicable to this Note is LIBOR, if such Business Day is in
the next succeeding calendar month, such Interest Payment Date shall instead be
the immediately preceding Business Day. If the Maturity for this Note falls on a
day that is not a Business Day, all payments to be made with respect to this
Note on such day will be made on the next succeeding Business Day with the same
force and effect as if made on the due date, and no additional interest shall be
payable as a result of such delay in payment.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually (such period being the "Reset
Period" for such Note, and the first day of each Reset Period being an "Interest
Reset Date"), as specified on the face hereof. Unless otherwise specified on the
face hereof, the Interest Reset Dates will be, if this Note resets daily, each
Business Day; if this Note resets weekly (unless the Interest Rate Basis
applicable to this Note is the Treasury Rate), the Wednesday of each week; if
this Note resets weekly and the Interest Rate Basis is the Treasury Rate, the
Tuesday of each week, except as provided in the next succeeding paragraph; if
this Note resets monthly (unless the Interest Rate Basis applicable to this Note
is the 11th District Cost of Funds Rate), the third Wednesday of each month; if
this Note resets monthly and the Interest Rate Basis applicable to this Note is
the 11th District Cost of Funds Rate, the first calendar day of the month; if
this Note resets quarterly, the third Wednesday of each March, June, September
and December; if this Note resets semiannually, the third Wednesday of the two
months of each year specified on the face hereof; and if this Note resets
annually, the third Wednesday of the one month of each year specified on the
face hereof. If any Interest Reset Date would otherwise be a day that is not a
Business Day, the Interest Reset Date shall be postponed to the next day that is
a Business Day, except that if the Interest Rate Basis applicable to this Note
is LIBOR, if such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall instead be the immediately preceding Business Day. The
interest rate in effect on each day will be (a) if such day is an Interest Reset
Date, the interest rate with respect to the Interest Determination Date
pertaining to such Interest Reset Date, or (b) if such day is not an Interest
Reset Date, the interest rate with respect to the Interest Determination Date
pertaining to the preceding Interest Reset Date, subject in either case to any
maximum or minimum interest rate limitation specified on the face hereof and to
any adjustment by a Spread or a Spread Multiplier specified on the face hereof;
provided, however, that the interest rate in effect for the period from and
including the Original Issue Date to but excluding the first Interest Reset Date
shall be the Initial Interest Rate specified on the face hereof.
The interest rate for each Reset Period will be the rate determined by
the calculation agent selected by the Corporation (the "Calculation Agent") on
the Calculation Date (as defined below) pertaining to the Interest Determination
Date pertaining to the Interest Reset Date for such Reset Period. Unless
otherwise specified on the face hereof, the "Interest Determination Date"
pertaining to an Interest Reset Date, if the Interest Rate Basis applicable to
this Note is (a) the CD Rate (the "CD Interest Determination Date"), (b) the CMT
Rate (the "CMT Interest Determination Date"), (c) the Commercial Paper Rate (the
"Commercial Paper Interest Determination Date"), (d) the Federal Funds Rate (the
"Federal Funds Interest Determination Date"), (e) the Kenny Rate (the "Kenny
Rate Interest Determination Date") or (f) the Prime Rate (the "Prime Interest
Determination Date"), will be the second Business Day prior to such Interest
Reset Date. Unless
8
<PAGE>
otherwise specified on the face hereof, the Interest Determination Date
pertaining to an Interest Reset Date, if the Interest Rate basis applicable to
this Note is the 11th District Cost of Funds Rate (the "11th District Interest
Determination Date"), will be the last Business Day of the month immediately
preceding such Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as defined below).
Unless otherwise specified on the face hereof, the Interest Determination Date
pertaining to an Interest Reset Date, if the Interest Rate Basis applicable to
this Note is LIBOR (the "LIBOR Interest Determination Date"), will be the second
London Business Day immediately preceding such Interest Reset Date. Unless
otherwise specified on the face hereof, the Interest Determination Date
pertaining to an Interest Reset Date, if the Interest Rate Basis applicable to
this Note is the Treasury Rate (the "Treasury Interest Determination Date"),
will be the day of the week in which such Interest Reset Date falls on which
Treasury bills would normally be auctioned. Treasury bills are usually sold at
auction on Monday of each week, unless that day is a legal holiday, in which
case the auction is usually held on the following Tuesday, except that such
auction may be held on the preceding Friday. If, as a result of a legal holiday,
an auction is so held on the preceding Friday, such Friday will be the Treasury
Interest Determination Date pertaining to the Reset Period commencing in the
next succeeding week. If an auction date shall fall on any Interest Reset Date
for a Treasury Rate Note, then such Interest Reset Date shall instead be the
first Business Day immediately following such auction date. The CD Interest
Determination Dates, CMT Interest Determination Dates, Commercial Paper Interest
Determination Dates, 11th District Interest Determination Dates, Federal Funds
Determination Dates, Kenny Interest Determination Dates, LIBOR Interest
Determination Dates, Prime Interest Determination Dates and Treasury Interest
Determination Dates are referred to herein as the "Interest Determination
Dates."
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date shall be the earlier of (i) the
tenth calendar day after the Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on the face
hereof.
Unless otherwise specified on the face hereof, payments of interest on
this Note on any Interest Payment Date or at maturity will include interest
accrued from and including the Original Issue Date specified on the face hereof
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, as the case may be, to but excluding the
applicable Interest Payment Date or Maturity, as the case may be. Accrued
interest shall be calculated by multiplying the face amount of this Note by an
accrued interest factor. This accrued interest factor shall be computed by
adding the interest factors calculated for each day from and including the
Original Issue Date specified on the face hereof, or from and including the last
date to which interest has been paid or duly provided for, to but excluding the
date for which accrued interest is being calculated. The interest factor for
each such day (unless otherwise specified on the face hereof) is computed by
dividing the interest rate applicable to such day by 360, if the Interest Rate
Basis applicable to this Note is the CD Rate, the Commercial Paper Rate, the
11th District Cost of Funds Rate, the Federal Funds Rate, LIBOR or the Prime
Rate, or by the actual number of days in the year, if the Interest Rate Basis
applicable to this Note is the CMT Rate or the Treasury Rate, or by 365, if the
Interest Rate Basis applicable to this Note is the Kenny Rate.
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The Calculation Agent shall calculate the interest rate on this Note,
as provided below. The Calculation Agent shall, upon the request of the Holder
of this Note, provide the interest rate then in effect and, if then determined,
the interest rate which will become effective as a result of a determination
made with respect to the most recent Interest Determination Date with respect to
this Note. Bankers Trust Company shall act as the initial Calculation Agent for
this Note. For purposes of calculating the rate of interest payable on this
Note, the Corporation will enter into an agreement with the Calculation Agent.
The Calculation Agent's determination of any interest rate shall be final and
binding in the absence of manifest error.
Notwithstanding the determination of the interest rate as provided
below, the interest rate on this Note for any interest period shall not be
greater than the maximum interest rate, if any, or less than the minimum
interest rate, if any, specified on the face hereof. The interest rate on this
Note will in no event be higher than the maximum rate permitted by New York or
other applicable law, as the same may be modified by United States law of
general application.
DETERMINATION OF CD RATE. If the Interest Rate Basis specified on the face
hereof is the CD Rate, the interest rate determined with respect to each CD
Interest Determination Date shall be the CD Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, specified on the face
hereof, as determined on the Calculation Date pertaining to such CD Interest
Determination Date.
Unless otherwise specified on the face hereof, "CD Rate" means, with
respect to any CD Interest Determination Date, the rate on such date for
negotiable certificates of deposit having the Index Maturity specified on the
face hereof as published by the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board") in its weekly statistical release, "Statistical
Release H.15(519), Selected Interest Rates" or any successor publication of the
Federal Reserve Board ("H.15(519)") under the heading "CDs (Secondary Market)."
If such rate is not published prior to 9:00 A.M., New York City time, on the
Calcula tion Date pertaining to such CD Interest Determination Date, then the
CD Rate with respect to such CD Interest Determination Date shall be the rate on
such CD Interest Determination Date for negotiable certificates of deposit
having the Index Maturity specified on the face hereof as published by the
Federal Reserve Bank of New York in its daily statistical release "Composite
3:30 P.M. Quotations for U.S. Government Securities" or any successor
publication ("Composite Quotations") under the heading "Certificates of
Deposit." If by 3:00 P.M., New York City time, on such Calculation Date such
rate is not published in either H.15(519) or Composite Quotations, then the CD
Rate with respect to such CD Interest Determination Date shall be calculated by
the Calculation Agent and shall be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such CD Interest
Determination Date quoted by three leading nonbank dealers in negotiable U.S.
Dollar certificates of deposit in The City of New York (which may include the
Calculation Agent and/or one or more of the Agents parties to the Distribution
Agreement, dated October 1, 1997 (the "Distribution Agreement"), between the
Corporation and certain agents providing for the offer and sale of the
Corporation's Senior Medium-Term Notes, Series A, and Subordinated Medium-Term
Notes, Series A (the "Agents")) selected by the Calculation Agent for negotiable
certificates of deposit in a denomination of $5,000,000 of major United States
money center banks with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers so selected
by the Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate with respect to such CD Interest Determination Date will be the CD Rate in
effect on such CD Interest Determination Date.
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DETERMINATION OF CMT RATE. If the Interest Rate Basis specified on the face
hereof is the CMT Rate, the interest rate determined with respect to each CMT
Interest Determination Date shall be the CMT Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, specified on the face
hereof, as determined on the Calculation Date pertaining to such CMT Interest
Determination Date.
Unless otherwise specified on the face hereof, "CMT Rate" means, with
respect to any CMT Interest Determination Date, the rate displayed on the
Designated CMT Telerate Page (as defined below) under the caption ". . .
Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . . .
Mondays Approxi mately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the applicable CMT Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or is not displayed by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such CMT Interest Determination Date, then the CMT Rate for
such CMT Interest Determination Date will be such treasury constant maturity
rate for the Designated CMT Maturity Index as is published in the relevant
H.15(519). If such rate is no longer published, or is not published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate for such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for such CMT Interest Determination Date as may
then be published by either the Federal Reserve Board or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided by
3:00 P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate for the CMT Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market closing
offer side prices as of approximately 3:30 P.M., New York City time, on the CMT
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 P.M., New
York City time, on the CMT Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100,000,000. If three or four (and not five)
of such Reference Dealers are quoting as described above, then the CMT Rate will
be based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided, however,
that if fewer than three Reference Dealers so selected by the Calculation Agent
are quoting as described herein, the CMT Rate will be the CMT Rate
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in effect on such CMT Interest Determination Date. If two Treasury Notes with an
original maturity as described in the third preceding sentence have remaining
terms to maturity equally close to the Designated CMT Maturity Index, then the
quotes for the Treasury Note with the shorter remaining term to maturity will be
used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof for the purpose of
displaying Treasury Constant Maturities as published in H.15(519) (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as published in H.15(519)). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the Treasury Notes (either one, two, three, five, seven, ten, twenty or
thirty years) specified on the face hereof with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis specified on
the face hereof is the Commercial Paper Rate, the interest rate determined with
respect to each Commercial Paper Rate Interest Determination Date shall be the
Commercial Paper Rate plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, specified on the face hereof, as determined on the
Calculation Date pertaining to such Commercial Paper Rate Interest Determination
Date.
Unless otherwise specified on the face hereof, "Commercial Paper Rate"
means, with respect to any Commercial Paper Interest Determination Date, the
Money Market Yield (calculated as described below) of the rate (quoted on a
discount basis) on such date for commercial paper having the Index Maturity
specified on the face hereof as published in H.15(519) under the heading
"Commercial Paper-Nonfinancial" or, if unavailable, under such other heading
representing commercial paper issued by non-financial entities whose bond rating
is "AA" or the equivalent from a nationally recognized statistical rating
agency. If such rate is not published prior to 9:00 A.M., New York City time, on
the Calculation Date pertaining to such Commercial Paper Interest Determination
Date, then the Commercial Paper Rate with respect to such Commercial Paper
Interest Determination Date shall be the Money Market Yield of the rate (quoted
on a discount basis) on such Commercial Paper Interest Determination Date for
commercial paper having the Index Maturity specified on the face hereof as
published in Composite Quotations under the heading "Commercial Paper-
Nonfinancial." If by 3:00 P.M., New York City time, on such Calculation Date
such rate is not yet published in either H.15(519) or Composite Quotations, then
the Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date shall be calculated by the Calculation Agent and shall be the
Money Market Yield of the arithmetic mean of the offered rates as of 11:00 A.M.,
New York City time, on such Commercial Paper Interest Determination Date, of
three leading dealers of commercial paper in The City of New York (which may
include the Calculation Agent and/or one or more of the Agents) selected by the
Calculation Agent for commercial paper having the Index Maturity specified on
the face hereof placed for an industrial issuer whose bond rating is "AA," or
the equivalent, from a nationally recognized securities rating agency; provided,
however, that if the dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Commercial Paper Rate with respect to
such Commercial Paper Interest Determination Date will be the Commercial Paper
Rate in effect on such Commercial Paper Interest Determination Date.
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"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------------ x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
DETERMINATION OF 11TH DISTRICT COST OF FUNDS RATE. If the Interest Rate Basis
specified on the face hereof is the 11th District Cost of Funds Rate, the
interest rate determined with respect to each 11th District Interest
Determination Date shall be the 11th District Cost of Funds Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified on
the face hereof, as determined on the Calculation Date pertaining to such 11th
District Interest Determination Date.
Unless otherwise specified on the face hereof, "11th District Cost of
Funds Rate" means, with respect to any 11th District Interest Determination
Date, the rate equal to the monthly weighted average cost of funds for the
calendar month immediately preceding such 11th District Interest Determination
Date as specified under the caption "11th District" on Telerate Page 7058 as of
11:00 A.M., San Francisco time, on such 11th District Interest Determination
Date. If such rate does not appear on Telerate Page 7058 on any 11th District
Interest Determination Date, the 11th District Cost of Funds Rate with respect
to such 11th District Interest Determination Date shall be the monthly weighted
average cost of funds paid by member institutions of the Eleventh Federal Home
Loan Bank District that was most recently announced by the FHLB of San Francisco
as such cost of funds for the calendar month immediately preceding the date of
such announcement (the "Index"). If the FHLB of San Francisco fails to announce
such rate for the calendar month immediately preceding such 11th District
Interest Determination Date, then the 11th District Cost of Funds Rate with
respect to such 11th District Interest Determination Date will be the 11th
District Cost of Funds Rate in effect on such 11th District Interest
Determination Date.
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis specified on
the face hereof is the Federal Funds Rate, the interest rate determined with
respect to each Federal Funds Interest Determination Date shall be the Federal
Funds Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, specified on the face hereof, as determined on the
Calculation Date pertaining to such Federal Funds Interest Determination Date.
Unless otherwise specified on the face hereof, "Federal Funds Rate"
means, with respect to any Federal Funds Interest Determination Date, the rate
on such date for Federal Funds as published in H.15(519) under the heading
"Federal Funds (Effective)." If such rate is not published prior to 9:00 A.M.,
New York City time, on the Calculation Date pertaining to such Federal Funds
Interest Determination Date, then the Federal Funds Rate with respect to such
Federal Funds Interest Determination Date shall be the rate on such Federal
Funds Interest Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on
such Calculation Date such rate is not published in either H.15(519) or
Composite Quotations, then the Federal Funds Rate with respect to such Federal
Funds Interest Determination Date shall be calculated by the Calculation Agent
and shall be the
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arithmetic mean of the rates, as of 9:00 A.M., New York City time, on such
Federal Funds Interest Determination Date for the last transaction in overnight
Federal Funds arranged by three leading brokers of Federal Funds transactions in
The City of New York (which may include the Calculation Agent and/or one or more
of the Agents) selected by the Calculation Agent; provided, however, that if the
brokers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate with respect to such Federal Funds
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Interest Determination Date.
DETERMINATION OF KENNY RATE. If the Interest Rate Basis specified on the face
hereof is the Kenny Rate, the interest rate determined with respect to each
Kenny Rate Interest Determination Date shall be the Kenny Rate plus or minus the
Spread, if any, or multiplied by the Spread Multiplier, if any, specified on the
face hereof, as determined on the Calculation Date pertaining to such Kenny Rate
Interest Determination Date.
Unless otherwise specified on the face hereof, "Kenny Rate" means,
with respect to any Kenny Rate Interest Determination Date, the high grade
weekly index (the "Weekly Index") on such date made available by Kenny
Information Systems ("Kenny") to the Calculation Agent. The Weekly Index is, and
shall be, based upon 30-day yield evaluations at par of bonds, the interest on
which is exempt from United States federal income taxation under the Internal
Revenue Code of 1986, as amended (the "Code"), of not less than five high grade
component issuers selected by Kenny which shall include, without limitation,
issuers of general obligation bonds. The specific issuers included among the
component issuers may be changed from time to time by Kenny in its discretion.
The bonds on which the Weekly Index is based shall not include any bonds on
which the interest is subject to a minimum tax or similar tax under the Code,
unless all tax-exempt bonds are subject to such tax. If Kenny ceases to make
available such Weekly Index, a successor indexing agent will be selected by the
Calculation Agent, such index to reflect the prevailing rate for bonds rated in
the highest short-term rating category by Moody's Investors Service, Inc. and
Standard & Poor's Ratings Services in respect of issuers most closely resembling
the high grade component issuers selected by Kenny for its Weekly Index, the
interest on which is (A) variable on a weekly basis, (B) exempt from United
States federal income taxation under the Code, and (C) not subject to a minimum
tax or similar tax under the Code, unless all tax-exempt bonds are subject to
such tax. If such successor indexing agent is not available, the rate for any
Kenny Rate Interest Determination Date shall be 67% of the rate determined if
the Treasury Rate option had been originally selected.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the face hereof
is LIBOR, the interest rate determined with respect to each LIBOR Interest
Determination Date shall be LIBOR plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, specified on the face hereof, as
determined on the Calculation Date pertaining to such LIBOR Interest
Determination Date.
Unless otherwise specified on the face hereof, "LIBOR" means, with
respect to any LIBOR Interest Determination Date, the rate determined in
accordance with the following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will be
either: (a) if "LIBOR Reuters" is specified on the face hereof, the arithmetic
mean of the offered rates (unless the Designated LIBOR Page (as defined below)
by its terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Designated LIBOR Currency having the Index
Maturity specified on the face hereof, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date,
which appear on the Designated LIBOR Page as of 11:00
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A.M., London time, on that LIBOR Interest Determination Date, or (b) if "LIBOR
Telerate" is specified on the face hereof, the rate for deposits in the
Designated LIBOR Currency having the Index Maturity specified on the face
hereof, commencing on the second LIBOR Business Day immediately following such
LIBOR Interest Determination Date, which appears on the Designated LIBOR Page
as of 11:00 A.M., London time, on that LIBOR Interest Determination Date.
Notwithstanding the foregoing, if fewer than two offered rates appear on the
Designated LIBOR Page with respect to LIBOR Reuters (unless the specified
Designated LIBOR Page with respect to LIBOR Reuters by its terms provides only
for a single rate, in which case such single rate shall be used), or if no
rate appears on the Designated LIBOR Page with respect to LIBOR Telerate,
whichever may be applicable, LIBOR with respect to the related LIBOR Interest
Determination Date will be determined as if the parties had specified the rate
described in clause (ii) below. If neither LIBOR Reuters nor LIBOR Telerate
is specified on the face hereof, LIBOR will be determined as if LIBOR Telerate
had been specified.
(ii) With respect to any LIBOR Interest Determination Date on which fewer
than two offered rates appear on the Designated LIBOR Page with respect to
LIBOR Reuters (unless the Designated LIBOR Page by its terms provides only for
a single rate, in which case such single rate shall be used), or if no rate
appears on the Designated LIBOR Page with respect to LIBOR Telerate, as the
case may be, the Calculation Agent will request the principal London office of
each of four major banks in the London interbank market selected by the
Calculation Agent (which may include the Calculation Agent and/or one or more
of the Agents) to provide the Calculation Agent with its offered rate
quotation for deposits in the Designated LIBOR Currency for the period of the
Index Maturity specified on the face hereof, commencing on the second LIBOR
Business Day immediately following such LIBOR Interest Determination Date, to
prime banks in the London interbank market as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such Designated LIBOR Currency in
such market at such time. If at least two such quotations are provided, LIBOR
with respect to such LIBOR Interest Determination Date will be the arithmetic
mean of such quotations. If fewer than two quotations are provided, LIBOR with
respect to such LIBOR Interest Determination Date will be the arithmetic mean
of the rates quoted as of 11:00 A.M. in the Principal Financial Center of
the Designated LIBOR Currency on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center selected by the
Calculation Agent (which may include the Calculation Agent and/or one or more
of the Agents) for loans in the Designated LIBOR Currency to leading banks,
commencing on the second LIBOR Business Day immediately following such LIBOR
Interest Determination Date, having the Index Maturity specified on the face
hereof and in a principal amount that is representative for a single
transaction in such Designated LIBOR Currency in such market at such time;
provided, however, that if the banks so selected by the Calculation Agent are
not quoting as mentioned in this sentence, LIBOR with respect to such LIBOR
Interest Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency (including a currency
unit), if any, designated on the face hereof as the Designated LIBOR Currency.
If no such currency is designated on the face hereof, the Designated LIBOR
Currency shall be U.S. Dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London interbank
rates of major banks for the applicable Designated LIBOR Currency (if "LIBOR
Reuters" is specified on the face hereof), or (b) the display on the Dow Jones
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Telerate Service for the purpose of displaying the London interbank rates of
major banks for the applicable designated LIBOR Currency (if "LIBOR Telerate" is
specified on the face hereof) or, in either case, such other page or pages as
may replace such pages on such system for the purpose of displaying such rates
or, in either case, if such display is not available at any time, a comparable
display, as determined in the sole discretion of the Calculation Agent, of such
rates as may be available from a similar service. If neither LIBOR Reuters nor
LIBOR Telerate is specified on the face hereof, LIBOR for the applicable
Designated LIBOR Currency will be determined as if LIBOR Telerate (and, if the
U.S. Dollar is the Designated LIBOR Currency, page 3750) had been chosen.
The "Principal Financial Center" of any currency means, unless
otherwise specified on the face hereof, the capital city of the country that
issues such currency as its legal tender, except that with respect to U.S.
Dollars and ECUs, the Principal Financial Center shall be The City of New York
and Brussels, respectively.
DETERMINATION OF PRIME RATE. If the Interest Rate Basis specified on the face
hereof is the Prime Rate, the interest rate determined with respect to each
Prime Interest Determination Date shall be the Prime Rate plus or minus the
Spread, if any, or multiplied by the Spread Multiplier, if any, specified on the
face hereof, as determined on the Calculation Date pertaining to such Prime
Interest Determination Date.
Unless otherwise specified on the face hereof, "Prime Rate" means,
with respect to any Prime Interest Determination Date, the rate set forth on
such date in H.15(519) under the heading "Bank Prime Loan." If such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Prime Interest Determination Date, then the Prime Rate with
respect to such Prime Interest Determination Date shall be determined by the
Calculation Agent and shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen USPRIME1 Page
(as defined below) as such bank's prime rate or base lending rate as in effect
for that Prime Interest Determination Date. If fewer than four such rates appear
on the Reuters Screen USPRIME1 Page on the Prime Interest Determination Date,
the Prime Rate with respect to such Prime Interest Determination Date shall be
determined by the Calculation Agent and shall be the arithmetic mean of the
prime or base lending rates quoted on the basis of the actual number of days in
the year divided by 360 as of the close of business on such Prime Interest
Determination Date by at least two leading money center banks in The City of New
York selected by the Calculation Agent (which may include the Calculation Agent
and/or one or more of the Agents). If fewer than two quotations are provided,
the Prime Rate with respect to such Prime Interest Determination Date shall be
determined on the basis of the rates furnished in The City of New York by the
appropriate number of substitute banks or trust companies organized and doing
business under the laws of the United States, or any state thereof, having total
equity capital of at least U.S.$500 million and being subject to supervision or
examination by Federal or state authority, selected by the Calculation Agent to
provide such rate or rates (which may include the Calculation Agent and/or one
or more of the Agents); provided, however, that if the appropriate number of
substitute banks or trust companies selected as aforesaid are not quoting as
mentioned in this sentence, the Prime Rate with respect to such Prime Interest
Determination Date will be the Prime Rate in effect on such Prime Interest
Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rate Service (or such other page as may
replace the USPRIME1 page on the service for the purpose of displaying the prime
or base lending rate of major banks).
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DETERMINATION OF TREASURY RATE. If the Interest Rate Basis specified on the face
hereof is the Treasury Rate, the interest rate determined with respect to each
Treasury Interest Determination Date shall be the Treasury Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified on
the face hereof, as determined on the Calculation Date pertaining to such
Treasury Interest Determination Date.
Unless otherwise specified on the face hereof, "Treasury Rate" means,
with respect to any Treasury Interest Determination Date, the rate for the most
recent auction of direct obligations of the United States ("Treasury bills")
having the Index Maturity specified on the face hereof as published in H.15(519)
under the heading, "U.S. Government Securities/Treasury Bills Auction Average"
or, if not so published by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Treasury Interest Determination Date, the auction
average rate (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) for such auction as
otherwise announced by the United States Department of the Treasury. If such
rate is not available by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Interest Determination Date, or if no such auction
is held in a particular week, then the Treasury Rate with respect to such
Treasury Interest Determination Date shall be calculated by the Calculation
Agent and shall be a yield to maturity (expressed as a bond equivalent, on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
of the arithmetic mean of the secondary market bid rates, as of approximately
3:30 P.M., New York City time, on such Treasury Interest Determination Date, of
three leading primary U.S. government securities dealers selected by the
Calculation Agent (which may include the Calculation Agent and/or one or more of
the Agents) for the issue of Treasury bills with a remaining maturity closest to
the Index Maturity specified on the face hereof or, if there are two such issues
which are equidistant from the Index Maturity specified on the face hereof, then
the longer of the two; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate with respect to such Treasury Interest Determination Date will be the
Treasury Rate in effect on such Treasury Interest Determination Date.
The Calculation Agent shall calculate the interest rate on this Note
in accordance with the foregoing as soon as practicable after the Interest
Determination Date.
SECTION 9. Amortizing Notes. Unless otherwise specified on the face
----------------
hereof, if this Note is an Amortizing Note, as specified on the face hereof,
payments with respect to this Note will be applied first to interest due and
payable hereon and then to the reduction of the unpaid principal amount hereof.
If this Note is an Amortizing Note, a table setting forth repayment information
in respect of this Note will be provided to the original purchaser hereof and
will be available, upon request, to subsequent Holders.
SECTION 10. Currency of Payment. Unless otherwise specified on the
-------------------
face hereof, the principal of, and any premium and interest on, this Note shall
be payable by the Corporation in the Specified Currency for this Note. Unless
otherwise specified on the face hereof, if the Specified Currency for this Note
is other than U.S. Dollars, (i) the Corporation shall (unless otherwise
specified on the face hereof) arrange to convert all payments in respect of this
Note into U.S. Dollars in the manner described in the following paragraph; and
(ii) the Holder of this Note may (unless otherwise specified on the face hereof)
elect to receive all payments in respect of this Note in the Specified Currency
by delivering a written notice to the paying agent for this Note (the "Paying
Agent") not later than fifteen calendar days prior to the applicable payment
date, except under the circumstances described below. Such election shall remain
in effect until revoked by written
17
<PAGE>
notice to such Paying Agent received not later than fifteen calendar days prior
to the applicable payment date.
If the Specified Currency of this Note is other than U.S. Dollars, the
amount of any U.S. Dollar payment in respect of this Note will be determined by
the Calculation Agent based on the highest firm bid quotation expressed in U.S.
Dollars received by the Calculation Agent at approximately 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date (or,
if no such rate is quoted on such date, the last date on which such rate was
quoted), from three (or, if three are not available, then two) recognized
foreign exchange dealers in The City of New York (one of which may be an Agent
and another of which may be the Calculation Agent) agreed upon by the
Corporation and the Calculation Agent, for the purchase by the quoting dealer,
for settlement on such payment date, of the aggregate amount of such Specified
Currency payable on such payment date in respect of all Notes denominated in
such Specified Currency (such rate, the "Market Exchange Rate"). All currency
exchange costs will be borne by the Holders of such Notes by deductions from
such payments. If fewer than two such bid quotations are available, such
payments will be made in such Specified Currency, unless such Specified Currency
is unavailable due to the imposition of exchange controls or to other
circumstances beyond the Corporation's control or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, in which case such payments shall be made as described below.
Except as specified in the following paragraphs, if payment in respect
of this Note is required to be made in a Specified Currency other than U.S.
Dollars and such currency is unavailable due to the imposition of exchange
controls or other circumstances beyond the Corporation's control or is no longer
used by the government of the country issuing such currency or for the
settlement of transactions by public institutions of or within the international
banking community, then all payments in respect of this Note shall be made in
U.S. Dollars; provided that the Corporation, at its option, may resume making
payments in such currency once such currency is again available or so used. The
amounts so payable on any date in such currency shall be converted into U.S.
Dollars on the basis of the most recently available Market Exchange Rate for
such currency or as otherwise indicated on the face hereof. Any payment in
respect of this Note made under such circumstances in U.S. Dollars will not
constitute an Event of Default under the Indenture.
If payment in respect of this Note is required to be made in ECUs and
ECUs are no longer used in the European Monetary System, then all payments in
respect of this Note shall be made in U.S. Dollars, provided that the
Corporation, at its option, may resume making payments in ECUs once ECUs are
again so used. The amount of each payment in U.S. Dollars shall be computed on
the basis of the equivalent of ECUs in U.S. Dollars, determined as described
below, as of the second Business Day prior to the date on which such payment is
due.
The equivalent of ECU in U.S. Dollars as of any date shall be
determined by the Calculation Agent on the following basis. The component
currencies of ECU for this purpose (the "Components") shall be the currency
amounts that were components of ECU as of the last date on which ECU were used
in the European Monetary System. The equivalent of ECU in U.S. Dollars shall be
calculated by aggregating the U.S. Dollar equivalents of the Components. The
U.S. Dollar equivalent of each Component shall be determined by the Calculation
Agent on the basis of the most recently available Market Exchange Rates for such
Components or as otherwise specified on the face hereof.
18
<PAGE>
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more component
currencies are consolidated into a single currency, the amounts of those
currencies as Components shall be replaced by an amount in such single currency
equal to the sum of the amounts of the consolidated component currencies
expressed in such single currency. If any component currency is divided into two
or more currencies, the amount of that currency as a Component shall be replaced
by amounts of such two or more currencies, each of which shall be equal to the
amount of the former component currency divided by the number of currencies into
which that currency was divided.
All determinations referred to above made by the Calculation Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holders of this Note.
SECTION 11. Currency Indexed Notes. If it is specified on the face
----------------------
hereof that this Note is a Currency Indexed Note, then unless otherwise
specified on the face hereof, the principal of, and any premium and interest on,
this Note will be calculated in the manner described below.
If it is specified on the face hereof that the principal of this Note
is indexed, then unless otherwise specified on the face hereof, principal at
Maturity of this Note will be payable in an amount equal to the Principal Amount
of this Note, plus or minus an amount determined by reference to the difference
between the Base Exchange Rate specified on the face hereof, and the rate (the
"Spot Rate") at which Currency I specified on the face hereof can be exchanged
for Currency II specified on the face hereof on the second Business Day prior to
the Maturity of this Note (the "Indexed Principal Determination Date"), as
determined by the Calculation Agent. If it is specified on the face hereof that
the interest on this Note is indexed, then unless otherwise specified on the
face hereof, the interest payable on any Interest Payment Date or at Maturity
will be payable in an amount equal to the stated interest rate of this Note,
plus or minus a rate adjustment determined by reference to the difference
between the Base Exchange Rate specified on the face hereof, and the Spot Rate
on the second Business Day prior to the applicable Interest Payment Date or the
Maturity of this Note (the "Indexed Interest Determination Date") as determined
by the Calculation Agent, applied to the average Principal Amount outstanding of
such Note for the period being measured. For the purpose of this section, the
Spot Rate on the Indexed Principal Determination Date or the Indexed Interest
Determination Date, as the case may be, will be the average of quotations for
settlement on the date of Maturity or the relevant Interest Payment Date, as the
case may be, obtained by the Calculation Agent from three (or if three are not
available, then two) Currency Dealers in The City of New York (which may include
the Calculation Agent and/or one or more of the Agents) at approximately 11:00
A.M., New York City time, on the Indexed Principal Determination Date or the
relevant Indexed Interest Determination Date, as the case may be. If so
specified on the face hereof, the rate adjustment may also be determined by
reference to a leverage factor ("L") specified on the face hereof.
Unless otherwise specified on the face hereof, the formulas to be used
by the Calculation Agent to determine the principal and/or the interest payable
at Maturity or on any Interest Payment Date will be as follows:
Principal
19
<PAGE>
A. If it is specified on the face hereof that principal is to increase
when the Spot Rate exceeds the Base Exchange Rate, and to decrease when the Spot
Rate is less than the Base Exchange Rate, the formula to determine the principal
of a Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x L x [Spot Rate-Base Exchange Rate])
-------------------------------
Spot Rate
However, in no event will the principal payable at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will sell
Currency I in exchange for a single unit of Currency II on the Indexed Principal
Determination Date.
B. If it is specified on the face hereof that principal is to increase
when the Base Exchange Rate exceeds the Spot Rate, and to decrease when the Base
Exchange Rate is less than the Spot Rate, the formula to determine the principal
amount of a Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x L x [Base Exchange Rate-Spot Rate])
-------------------------------
Spot Rate
However, in no event will the principal payable at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will purchase
Currency I in exchange for a single unit of Currency II on the Indexed Principal
Determination Date.
Interest
A. If it is specified on the face hereof that interest is to increase
when the Spot Rate exceeds the Base Exchange Rate, and to decrease when the Spot
Rate is less than the Base Exchange Rate, the formula to determine the rate at
which interest is payable on any Interest Payment Date or at Maturity on a
Currency Indexed Note shall equal:
Stated Interest Rate + (L x [Spot Rate-Base Exchange Rate])
-------------------------------
Spot Rate
However, in no event will the interest payable on any Interest Payment Date or
at Maturity to be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will sell
Currency I in exchange for a single unit of Currency II on the Indexed Principal
Determination Date.
B. If it is indicated on the face hereof that interest is to increase
when the Base Exchange Rate exceeds the Spot Rate, and to decrease when the Base
Exchange Rate is less than the Spot Rate, the formula to
20
<PAGE>
determine the Rate at which interest is payable on any Interest Payment Date or
at Maturity on a Currency Indexed Note shall equal:
Stated Interest Rate + (L x [Base Exchange Rate-Spot Rate])
-------------------------------
Spot Rate
However, in no event will the interest payable on any Interest Payment Date or
at Maturity be less than zero.
To determine the "Spot Rate" for use in this formula, each Currency
Dealer's quotation will be the rate at which such Currency Dealer will purchase
Currency I in exchange for a single unit of Currency II on the Indexed Interest
Determination Date.
SECTION 12. Redemption. If so specified on the face hereof, this
----------
Note may be redeemed at the option of the Corporation as a whole or from time to
time in part, on or after the date designated as the Initial Redemption Date on
the face hereof, in whole or from time to time in part in increments of $1,000
or the minimum denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be an authorized denomination), at the
Redemption Price (as defined below). The "Redemption Price" shall be equal to
the sum of (i) the Initial Redemption Percentage specified on the face hereof,
(as adjusted by the Annual Redemption Percentage Reduction, if any, specified on
the face hereof) multiplied by the principal amount hereof to be redeemed, plus
(ii) the unpaid interest accrued on the Principal Amount hereof to be redeemed
to the date of redemption, provided that interest installments that are due on
or prior to the date of redemption will be payable to the Holder of this Note at
the close of business on the relevant Regular Record Date referred to on the
face hereof, as provided in the Indenture. The Initial Redemption Percentage, if
any, applicable to this Note shall decline on each anniversary of the Initial
Redemption Date by an amount equal to the Annual Redemption Percentage
Reduction, if any, specified on the face hereof, until the Redemption Price is
equal to 100% of the unpaid Principal Amount hereof or the portion thereof to be
redeemed.
The Corporation may exercise such option by causing the security
registrar for this Note (the "Security Registrar") to mail a notice of such
redemption not more than 60 nor less than 30 calender days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
SECTION 13. Repayment. If so specified on the face hereof, this Note
---------
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note to be repaid prior to
Stated Maturity at the Option of the Holder, the Security Registrar must receive
at least 30 but not more than 45 calendar days prior to an Optional Repayment
Date (i) this Note with the form below entitled "Option to Elect Repayment" duly
completed or (ii) a telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States of America setting forth the name of
the Holder of this Note, the Principal Amount of this Note, the Principal Amount
of the Note to be repaid, the certificate number or a description of the tenor
and terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee by a commercial bank, a trust company or by a
21
<PAGE>
member of the New York Stock Exchange which is a member of an approved signature
guarantee medallion program pursuant to Securities and Exchange Commission Rule
17Ad-15 that this Note with the form below entitled "Option to Elect Repayment"
duly completed will be received by the Security Registrar not later than three
Business Days after the date of such telegram, telex, facsimile transmission,
hand delivery or letter (first class, postage prepaid). If the procedure
described in clause (ii) of the preceding sentence is followed, this Note with
such form duly completed must be received by the Security Registrar by such
third Business Day. Exercise of the repayment option by the Holder of this Note
shall be irrevocable, except that a Holder who has tendered this Note for
repayment may revoke any such tender for repayment by written notice to the
Security Registrar received prior to the close of business on the tenth calendar
day prior to the repayment date. The repayment option may be exercised by the
Holder of this Note for less than the entire Principal Amount of this Note
provided that the Principal Amount of this Note remaining outstanding after such
repayment is an authorized denomination. Upon such partial repayment, this Note
shall be canceled and a new Note or Notes for the remaining Principal Amount
hereof shall be issued in the name of the Holder of this Note.
SECTION 14. Optional Interest Reset. If so specified on the face
-----------------------
hereof, the Spread and/or the Spread Multiplier on this Note may be reset by the
Corporation on the date or dates or on the basis specified on the face hereof
(each an "Optional Interest Reset Date"). The Corporation may exercise such
option by notifying the Security Registrar of such exercise at least 45 but not
more than 60 calendar days prior to any Optional Interest Reset Date. If the
Corporation so notifies the Security Registrar of such exercise, the Security
Registrar will send, not later than 40 calendar days prior to each Optional
Interest Reset Date, by telegram, telex, facsimile transmission, hand delivery
or letter (first class, postage prepaid) to the Holder of this Note a notice
(the "Reset Notice") indicating (i) that the Corporation has elected to reset
the Spread and/or the Spread Multiplier, (ii) such new Spread and/or Spread
Multiplier and (iii) the provisions, if any, for redemption during the period
from such Optional Interest Reset Date to the next Optional Interest Reset Date
or, if there is no such next Optional Interest Reset Date, to the Stated
Maturity of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior
to an Optional Interest Reset Date, the Corporation may, at its option, revoke
the Spread and/or the Spread Multiplier provided for in the Reset Notice and
establish a Spread and/or Spread Multiplier resulting in a higher interest rate
for the Subsequent Interest Period commencing on such Optional Interest Reset
Date by causing the Security Registrar to send by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) notice of
such Spread and/or Spread Multiplier resulting in a higher interest rate to the
Holder of this Note. Such notice shall be irrevocable. All Notes with respect to
which the Spread and/or the Spread Multiplier is reset on an Optional Interest
Reset Date will bear such Spread and/or Spread Multiplier resulting in a higher
interest rate, whether or not tendered for repayment as provided in the next
paragraph.
If the Corporation elects prior to an Optional Interest Reset Date to
reset the Spread and/or the Spread Multiplier of this Note, the Holder of this
Note will have the option to elect repayment of this Note by the Corporation on
such Optional Interest Reset Date at a price equal to the Principal Amount
hereof plus interest accrued and unpaid thereon to such Optional Interest Reset
Date. In order to obtain repayment on an Optional Interest Reset Date, the
Holder must follow the procedures specified under Section 13 for optional
repayment except that the period for delivery or notification to the Security
Registrar shall be at least 25 but not more than 35 calendar days prior to such
Optional Interest Reset Date. If the Holder has
22
<PAGE>
tendered this Note for repayment following receipt of a Reset Notice, the Holder
may revoke such tender for repayment by written notice to the Security Registrar
received prior to 5:00 P.M., New York City time, on the tenth calendar day prior
to such Optional Interest Reset Date.
SECTION 15. Optional Extension of Maturity. If so specified on the
------------------------------
face hereof, the Stated Maturity of this Note may be extended at the option of
the Corporation for a period or periods of from one to five whole years each, as
specified on the face hereof (each, an "Extension Period") up to but not beyond
the date (the "Final Maturity Date") specified on the face hereof. The
Corporation may exercise such option with respect to this Note by notifying the
Security Registrar of such exercise at least 45 but not more than 60 calendar
days prior to the Stated Maturity of this Note in effect prior to the exercise
of such option (the "Original Stated Maturity Date"). If the Corporation so
notifies the Security Registrar of such exercise, the Security Registrar will
send, not later than 40 calendar days prior to the Original Stated Maturity
Date, by telegram, telex, facsimile transmission, hand delivery or letter (first
class, postage prepaid) to the Holder of this Note, a notice (the "Extension
Notice") indicating (i) that the Corporation has elected to extend the Stated
Maturity of this Note, (ii) the new Stated Maturity, (iii) the Spread and/or the
Spread Multiplier applicable to the Extension Period and (iv) the provisions, if
any, for redemption during such Extension Period, including the date or dates on
which or the period or periods during which and the price or prices at which
such redemption may occur during such Extension Period. Upon the Security
Registrar's sending of the Extension Notice, the Stated Maturity of this Note
shall be extended automatically and, except as modified by the Extension Notice
and as described in the next two paragraphs, this Note will have the same terms
as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior
to the Original Stated Maturity Date of this Note, the Corporation may, at its
option, revoke the change in the Spread and/or the Spread Multiplier provided
for in the Extension Notice and establish a Spread and/or Spread Multiplier
resulting in a higher interest rate for the Extension Period by causing the
Security Registrar to send by telegram, telex, facsimile transmission, hand
delivery or letter (first class, postage prepaid) notice of such Spread and/or
Spread Multiplier resulting in a higher interest rate to the Holder of this
Note. Such notice shall be irrevocable. All Notes with respect to which the
Stated Maturity is extended will bear such Spread and/or Spread Multiplier
resulting in a higher interest rate for the Extension Period, whether or not
tendered for repayment as provided in the next paragraph.
If the Corporation elects to extend the Stated Maturity of this Note,
the Holder will have the option to elect repayment of this Note by the
Corporation on the Original Stated Maturity Date at a price equal to the
Principal Amount hereof, plus interest accrued and unpaid thereon to such date.
In order to obtain repayment on the Original Stated Maturity Date, the Holder
must follow the procedures specified under Section 13 for optional repayment,
except that the period for delivery or notification to the Security Registrar
shall be at least 25 but not more than 35 calendar days prior to the Original
Stated Maturity Date. A Holder who has tendered this Note for repayment
following receipt of an Extension Notice may revoke such tender for repayment by
written notice to the Security Registrar received prior to 5:00 P.M., New York
City time, on the tenth calendar day prior to the Original Stated Maturity Date.
SECTION 16. Sinking Fund. This Note will not be subject to any
------------
sinking fund.
SECTION 17. Original Issue Discount Notes. Notwithstanding anything
-----------------------------
herein to the contrary, unless otherwise specified on the face hereof, if it is
specified on the face hereof that this Note is an Original
23
<PAGE>
Issue Discount Note, the amount payable if the Principal Amount hereof is
declared to be due and payable prior to the Stated Maturity hereof by reason of
an Event of Default, or if this Note is redeemed or repaid prior to the Stated
Maturity hereof, shall be the Amortized Face Amount (as defined below) of this
Note as of the date of declaration, redemption or repayment, as the case may be.
The "Amortized Face Amount" of this Note shall be the amount equal to (i) the
Principal Amount of this Note multiplied by the Issue Price specified on the
face hereof plus (ii) that portion of the difference between the dollar amount
determined pursuant to the preceding clause (i) and the Principal Amount hereof
that has accreted at the Yield to Maturity specified on the face hereof
(computed in accordance with generally accepted United States bond yield
computation principles) to such date of declaration, redemption or payment, but
in no event shall the Amortized Face Amount of this Note exceed its Principal
Amount.
SECTION 18. Defined Terms. Unless otherwise defined herein, all
-------------
capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture; and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Notes.
As used herein, "Business Day" means, unless otherwise specified on the face
hereof, any Monday, Tuesday, Wednesday, Thursday or Friday (i) that is not a day
on which banking institutions are authorized or required by law, regulation or
executive order to close in any of The City of New York, the Principal Financial
Center of the Specified Currency of this Note or, if interest on this Note is
payable in a currency or currency unit other than such Specified Currency (the
"Interest Currency"), the Principal Financial Center of such Interest Currency
or that, if the Specified Currency or Interest Currency is the European Currency
Unit (the "ECU"), is an ECU Business Day (as defined below). "ECU Business Day"
means any day other than a day designated as an ECU Non-Settlement Day by the
ECU Banking Association in Paris or otherwise generally regarded in the ECU
interbank market as a day on which payments on ECUs shall not be made. "LIBOR
Business Day" means any day (a) if the Designated LIBOR Currency is other than
the ECU, on which dealings in deposits in such Designated LIBOR Currency are
transacted in the London interbank market and in the principal financial center
of the Designated LIBOR Currency or (b) if the Designated LIBOR Currency is the
ECU, that is an ECU Business Day.
SECTION 19. Calculations. All percentages resulting from any
------------
calculations under this Note will be rounded, if necessary, to the nearest one
hundred thousandth of a percentage point (with five one-millionths of a
percentage point being rounded upward) and all currency or currency units or
dollar amounts used in or resulting from any such calculation in respect of the
Notes will be rounded to the nearest one-hundredth of a unit (with five one-
thousandths being rounded upward) or nearest cent (with one-half cent being
rounded upward), as the case may be.
SECTION 20. Trustee Dealings with Corporation. Subject to Sections
---------------------------------
608 and 613 of the Indenture, the Trustee, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Corporation or its affiliates, and may otherwise deal with the Corporation or
its affiliates, as if it were not the Trustee.
SECTION 21. No Recourse Against Others. A director, officer,
--------------------------
employee or stockholder, as such, of the Corporation shall not have any
liability for any obligations of the Corporation under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of Notes by accepting this Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
24
<PAGE>
SECTION 22. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
25
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights.]
The undersigned owner of this Note hereby irrevocably elects to have
the Corporation repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 13 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be repaid pursuant to Section 14 hereof, or to the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 15 hereof. Specified
below is the denomination or denominations (which shall be $1,000 or an integral
multiple thereof in excess thereof or, if the Note is denominated in a currency
other than U.S. Dollars, an Authorized Denomination) of the Note or Notes to be
issued to the Holder for the portion of the within Note not being repaid (in the
absence of any specification, one such Note will be issued for the portion not
being repaid):
__________________________________ ______________________________________
Dated: ___________________________ Signature
Sign exactly as name appears on the
front of this Note.
Principal Amount to be repaid if Indicate address where check is to be
sent:
amount to be repaid is less than the _______________________________________
entire Principal Amount of this Note _______________________________________
(the Principal Amount remaining must be _______________________________________
an authorized denomination)
$_____________________________
(which shall be an integral multiple of
$1,000 or, if another authorized
denomination is specified on the SOCIAL SECURITY OR OTHER
face hereof under "Authorized TAXPAYER ID NUMBER
Denominations", an amount equal to
the minimum authorized denomination)). _________________________________
26
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT Custodian
________________________________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
________________________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
27
<PAGE>
_____________________________________________________________________ the within
Note and all rights thereunder, hereby irrevocably constituting and appointing
_______________ attorney to transfer said Note on the books of the Corporation,
with full power of substitution in the premises.
Dated:_______________________ ____________________________________
Signature
Sign exactly as name appears on the front of
this Note (SIGNATURE MUST BE GUARANTEED by a
commercial bank, a trust company or by a
member of the New York Stock Exchange which
is a member of an approved signature
guarantee medallion program pursuant to
Securities and Exchange Commission
Rule 17Ad-15).
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
28
<PAGE>
EXHIBIT 4.5
================================================================================
BANKERS TRUST NEW YORK CORPORATION
TO
THE CHASE MANHATTAN BANK (formerly The Chase
Manhattan Bank (National Association)), TRUSTEE
----------------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of October 1, 1997
----------------------------------
Supplemental to Indenture,
dated as of November 1, 1991
as amended by
First Supplemental Indenture,
dated as of September 1, 1993
================================================================================
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of October 1, 1997, between BANKERS
TRUST NEW YORK CORPORATION, a corporation duly organized and existing under the
laws of the State of New York (the "Company"), and THE CHASE MANHATTAN BANK
(formerly The Chase Manhattan Bank (National Association)), a banking
corporation duly organized and existing under the laws of the State of New
York, as Trustee under the Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee are parties to the Indenture, dated as
of November 1, 1991, as previously supplemented by the First Supplemental
Indenture thereto, dated as of September 1, 1993 (as so supplemented, the
"Indenture"), pursuant to which the Company has issued certain Securities that
remain outstanding as of the date hereof; and
WHEREAS, Section 901 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may enter into a supplemental
indenture without the consent of any Holder to add to, change or eliminate any
of the provisions of the Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (i) shall not
apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor modify
the rights of the Holder of any such Security with respect to such provision, or
(ii) shall become effective only when there is no such Security Outstanding; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and
by this Second Supplemental Indenture to amend and supplement the Indenture in
certain respects, which amendment and supplement shall not apply to any
Securities created prior to the execution of this Second Supplemental Indenture;
and
WHEREAS, the Company has duly authorized the execution and delivery of this
Second Supplemental Indenture by a Board Resolution, as defined in the
Indenture, and all things necessary to make this Second Supplemental Indenture a
valid agreement of the Company, in accordance with the terms of the Indenture,
have been done;
NOW, THEREFORE, the Company and the Trustee hereby agree as follows:
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<PAGE>
Article I
AMENDMENTS
----------
Section 1.01. Amendments to Section 101 of Indenture.
(a) Section 101 of the Indenture is hereby amended by replacing the words
"its Vice Chairman of the Board," in the definition of "Company Request" or
"Company Order" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
(b) Section 101 of the Indenture is hereby further amended by replacing the
words "a Vice Chairman of the Board," in the definition of "Officers'
Certificate" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
(c) Section 101 of the Indenture is hereby further amended by inserting the
words "in Section 114 or, if different," in the definition of "Outstanding "
immediately following the words "the U.S. dollar equivalent, determined in the
manner provided" therein.
Section 1.02. Amendments to Section 201 of Indenture. Section 201 of the
Indenture is hereby amended by adding the following at the end of the first
paragraph thereof:
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action
shall be delivered at or before the time of issuance of the first Security
of such series.
Section 1.03. Amendments to Section 301 of Indenture.
(a) Section 301(5) of the Indenture is hereby amended by inserting the
words "(or the formula pursuant to which such rate or rates shall be
determined)" after the word "rates" the first time such word appears in such
section:
(b) The penultimate paragraph of Section 301 of the Indenture is hereby
amended by adding the following at the end thereof:
All Securities of any one series need not be issued at one time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
(c) The final paragraph of Section 301 of the Indenture is hereby amended
by adding the following at the end thereof:
-2-
<PAGE>
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action
shall be delivered at or before the time of issuance of the first Security
of such series.
Section 1.04. Amendments to Section 303 of Indenture.
(a) The first paragraph of Section 303 of the Indenture is hereby amended
by replacing the words "its Vice Chairman of the Board," with the words ", its
Senior Vice Chairman, one of its Vice Chairmen".
(b) The third paragraph of Section 303 of the Indenture is hereby amended
by inserting the following after the first sentence thereof:
If all of the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities and determining the terms
of particular Securities of such series, such as interest rate, maturity
date, date of issuance and date from which interest shall accrue, and for
instructing the Trustee to authenticate and deliver such Securities
(including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents,
promptly confirmed in writing).
(c) Subparagraph (a) of the third paragraph of Section 303 of the Indenture
is hereby amended by inserting the words "or, if all the Securities of such
series are not to be issued at one time, will be" following the words "have
been" therein.
Section 1.05. Amendments to Section 305 of Indenture.
(a) The seventh paragraph of Section 305 of the Indenture is hereby amended
and restated as follows:
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of
that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of any such Securities selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
-3-
<PAGE>
(b) The eighth paragraph of Section 305 of the Indenture is hereby amended
by inserting the words "at a time when the Depository is required to be so
registered in order to act as such depository" after the words "as amended," and
before the words "(ii) the Company" in the first sentence thereof.
(c) Section 305 of the Indenture is hereby further amended by adding the
following paragraph at the end thereof:
Except as provided in the immediately preceding paragraph and as
otherwise provided as contemplated by Section 301 with respect to any
series of Securities evidenced in whole or in part by a Book-Entry
Security, (i) a Book-Entry Security may not be transferred except as a
whole by the Depository with respect to such Security to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository and (ii) the Depository may not sell, assign,
transfer or otherwise convey any beneficial interest in a Book-Entry
Security evidencing all or part of the Securities of such Series unless
such beneficial interest is in an amount equal to an authorized
denomination for Securities of such series.
Section 1.06. Amendments to Section 501 of Indenture. Subsections (e) and
(f) of Section 501 of the Indenture are hereby amended by replacing the words
"the Federal Bankruptcy Act" each time such words appear with the words "Title
11 of the United States Code".
Article II
MISCELLANEOUS
-------------
Section 2.01. Defined Terms. For all purposes of this Second Supplemental
Indenture, except as otherwise stated herein, capitalized terms used but not
defined in this Second Supplemental Indenture shall have the respective meanings
assigned to them in the Indenture.
Section 2.02. Trustee's Rights, Duties and Immunities. All of the
provisions of the Indenture with respect to the rights, duties and immunities of
the Trustee shall be applicable in respect hereof as fully and with like effect
as if set forth herein in full.
Section 2.03. Application of Amendments. All amendments to the Indenture
made hereby shall have effect only with respect to the Securities of any series
created on or after the date hereof, and not with respect to the Securities of
any series created prior to the date hereof.
Section 2.04. Recitals. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
-4-
<PAGE>
SECTION 2.05. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.06. Counterparts. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
Section 2.07. Ratification and Confirmation. As amended and modified by
this Second Supplemental Indenture, the Indenture is in all respects ratified
and confirmed and the Indenture and this Second Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
BANKERS TRUST NEW YORK CORPORATION
By: /s/ Kenneth J. Weiller
------------------------------------------
Name: Kenneth J. Weiller
Title: Vice President
ATTEST:
/s/ Gordon S. Calder, Jr.
- ----------------------------
THE CHASE MANHATTAN BANK (formerly The
Chase Manhattan Bank (National Association)),
as Trustee
By: /s/ Sheik Wiltshire
--------------------------------------------
Name: Sheik Wiltshire
Title: Second Vice President
ATTEST:
/s/ Gemmel Richards
-----------------------------
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<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the 1st day of October, 1997, before me personally came Kenneth J.
Weiller, to me known, who, being by me duly sworn, did depose and say that s/he
is Vice President 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.
[Notarial Seal] /s/ Rebecca J. Simmons
-------------------------------------------
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the 30th day of September, 1997, before me personally came Sheik
Wiltshire to me known, who, being by me duly sworn, did depose and say that he
is Second Vice President of The Chase Manhattan Bank, 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.
[Notarial Seal] /s/ Alan J. Soel
--------------------------------------------
-7-
<PAGE>
EXHIBIT 4.6
================================================================================
BANKERS TRUST NEW YORK CORPORATION
TO
MARINE MIDLAND BANK (formerly
Marine Midland Bank, N.A.), TRUSTEE
--------------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of October 1, 1997
--------------------------------
Supplemental to Indenture,
dated as of April 1, 1992
as amended by
First Supplemental Indenture,
dated as of January 15, 1993
================================================================================
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of October 1, 1997, between BANKERS
TRUST NEW YORK CORPORATION, a corporation duly organized and existing under the
laws of the State of New York (the "Company"), and MARINE MIDLAND BANK (formerly
Marine Midland Bank, N.A.), a banking corporation and trust company duly
organized and existing under the laws of the State of New York , as Trustee
under the Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee are parties to the Indenture, dated as
of April 1, 1992, as previously supplemented by the First Supplemental Indenture
thereto, dated as of January 15, 1993 (as so supplemented, the "Indenture"),
pursuant to which the Company has issued certain Securities that remain
outstanding as of the date hereof; and
WHEREAS, Section 901 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may enter into a supplemental
indenture without the consent of any Holder to add to, change or eliminate any
of the provisions of the Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (i) shall not
apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor modify
the rights of the Holder of any such Security with respect to such provision, or
(ii) shall become effective only when there is no such Security Outstanding; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and
by this Second Supplemental Indenture to amend and supplement the Indenture in
certain respects, which amendment and supplement shall not apply to any
Securities created prior to the execution of this Second Supplemental Indenture;
and
WHEREAS, the Company has duly authorized the execution and delivery of this
Second Supplemental Indenture by a Board Resolution, as defined in the
Indenture, and all things necessary to make this Second Supplemental Indenture a
valid agreement of the Company, in accordance with the terms of the Indenture,
have been done;
NOW, THEREFORE, the Company and the Trustee hereby agree as follows:
-1-
<PAGE>
Article I
AMENDMENTS
----------
Section 1.01. Amendments to Section 101 of Indenture.
(a) Section 101 of the Indenture is hereby amended by replacing the words
"its Vice Chairman of the Board," in the definition of "Company Request" or
"Company Order" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
(b) Section 101 of the Indenture is hereby further amended by deleting the
words "which is issued at a price lower than the amount payable at the stated
maturity thereof and" from the definition of "Discount Security" therein.
(c) Section 101 of the Indenture is further hereby amended by amending and
restating the definition of "Existing Subordinated Indebtedness" as follows:
"Existing Subordinated Indebtedness" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301, the
Company's Executive Convertible Subordinated Debentures due 1997-2003, Zero
Coupon Subordinated Yen Notes due 1998-2004, Subordinated Money Market
Capital Notes, Series A, B and C due June 1999, 9.20% Subordinated Capital
Notes due July 15, 1999, 9.50% Subordinated Debentures due June 14, 2000, 5
3/4% Convertible Subordinated Debentures due 2001, 9.40% Subordinated
Debentures due March 1, 2001, 9.00% Subordinated Debentures due August 1,
2001, 7.50% Subordinated Debentures due January 15, 2002, 8 1/8%
Subordinated Notes due 2002, 8 1/8% Subordinated Notes due May 15, 2002, 7
1/8% Subordinated Debentures due July 31, 2002, Subordinated Floating Rate
Notes due 2002, 7.25% Subordinated Debentures due January 15, 2003,
Subordinated Constant Maturity Treasury Floating Rate Debentures due 2003,
Subordinated LIBOR/CMT Floating Rate Debentures due 2003, Floating Rate
Subordinated Notes due 2004, 8 1/4% Subordinated Notes due 2005,
Subordinated Floating Rate Notes due 2005, Subordinated Yen Loan due 2005,
7 1/8% Subordinated Notes due March 15, 2006, 6% Subordinated Notes due
October 2008, 7 1/8% Subordinated Notes due 2008, 7 1/8% Subordinated Notes
due 2010, 7 1/2% Subordinated Notes due 2010, 7 1/4% Subordinated Notes due
October 15, 2011, 7.75% Subordinated Notes due May 1, 2012, 7.15%
Subordinated Notes due August 14, 2012, 7 1/2% Subordinated Notes due
November 15, 2015, 6 1/8% Convertible Capital Securities due June 2033 and
6.00% Convertible Capital Securities due August 2033.
(d) Section 101 of the Indenture is hereby further amended by replacing the
words "a Vice Chairman of the Board," in the definition of "Officers'
Certificate" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
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<PAGE>
(e) Section 101 of the Indenture is hereby further amended by amending and
restating the definition of "Other Financial Obligations" as follows:
"Other Financial Obligations" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 301, all
obligations of the Company to make payment pursuant to the terms of
financial instruments, such as (i) securities contracts and foreign
currency exchange contracts, (ii) derivative instruments, such as swap
agreements (including interest rate and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar agreements, interest
rate agreements, foreign exchange rate agreements, options, commodity
futures contracts and commodity options contracts, and (iii) in the case of
both (i) and (ii) above, other similar financial instruments other than (A)
obligations on account of Senior Indebtedness and (b) obligations on
account of indebtedness for money borrowed ranking pari passu in right of
payment with or subordinate to the Securities.
(f) Section 101 of the Indenture is hereby further amended by inserting the
words "in Section 114 or, if different," in the definition of "Outstanding "
immediately following the words "the U.S. dollar equivalent, determined in the
manner provided" therein.
(g) Section 101 of the Indenture is hereby further amended by amending and
restating the definition of "Senior Indebtedness" as follows:
"Senior Indebtedness" means, unless otherwise determined with respect
to any series of Securities pursuant to Section 301, the principal of, and
premium, if any, and interest (including interest accruing subsequent to
the commencement of any proceeding for the bankruptcy or reorganization of
the Company under applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on, (a) all indebtedness for money borrowed, whether
outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, except such indebtedness as is by its terms
expressly stated to be subordinate in right of payment to, or to rank pari
passu in right of payment with, the Securities or any other obligation that
ranks pari passu in right of payment with the Securities, or is identified
in a Board Resolution or any indenture supplemental hereto as being
subordinate in right of payment to, or as ranking pari passu in right of
payment with, the Securities or any other obligation that ranks pari passu
in right of payment with the Securities, and (b) any deferrals, renewals or
extensions of any such indebtedness for money borrowed; provided, however,
that Senior Indebtedness shall not include (i) any obligations on account
of Existing Subordinated Indebtedness or (ii) any obligations as to which,
in the instrument creating or evidencing the same or pursuant to which the
same is outstanding, it is provided that such obligation is not Senior
Indebtedness.
Section 1.02. Amendments to Section 111 of Indenture. Section 111 of the
Indenture is hereby amended and restated as follows:
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<PAGE>
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders and, subject to Section 907, the
holders of Senior Indebtedness and Entitled Persons in respect of Other
Financial Obligations, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.03. Addition of Section 114. The Indenture is hereby further
amended by inserting the following provision in the appropriate numerical order:
Section 114. Currency Conversion.
-------------------
If the principal amount of a Security is denominated in any currency,
currencies or currency units other than U.S. dollars and it is necessary to
determine as of any date the equivalent in U.S. dollars of any amount in
respect of such Security, such amount shall be deemed to be the amount of
U.S. dollars that could have been purchased by the amount of the units of
the currency, currencies or currency units, in which such amount is
denominated based, except as otherwise set forth in the Board Resolution or
supplemental indenture establishing such series of Securities, on the
average of the mean of the buying and selling spot rates in effect at 11:00
A.M., New York City time, in The City of New York on the date of such
determination or, if such date is not a Business Day, on the next
succeeding Business Day, quoted by three banks who are members of the New
York Clearing House Association (other than Bankers) chosen by the Company.
Section 1.04. Amendments to Section 201 of Indenture. Section 201 of the
Indenture is hereby amended by adding the following at the end of the first
paragraph thereof:
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action
shall be delivered at or before the time of issuance of the first Security
of such series.
Section 1.05. Amendments to Section 301 of Indenture.
(a) Section 301(5) of the Indenture is hereby amended by inserting the
words "(or the formula pursuant to which such rate or rates shall be
determined)" after the word "rates" the first time such word appears in such
section:
(b) Section 301(10) of the Indenture is hereby amended by inserting the
words ", if other than as set forth in Section 114," after the words "United
States of America" the first time such words appear in such section.
-4-
<PAGE>
(c) Section 301 of the Indenture is hereby further amended by deleting the
word "and" from subsection (14) and by replacing the period at the end of
subsection (15) with "; and".
(d) The penultimate paragraph of Section 301 of the Indenture is hereby
amended by adding the following at the end thereof:
All Securities of any one series need not be issued at one time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
(e) The final paragraph of Section 301 of the Indenture is hereby amended
by adding the following at the end thereof:
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action
shall be delivered at or before the time of issuance of the first Security
of such series.
Section 1.06. Amendments to Section 303 of Indenture.
(a) The first paragraph of Section 303 of the Indenture is hereby amended
by inserting the words ", its Senior Vice Chairman, one of its Vice Chairmen"
after the words "Chairman of the Board,".
(b) The third paragraph of Section 303 of the Indenture is hereby amended
by inserting the following after the first sentence thereof:
If all of the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities and determining the terms
of particular Securities of such series, such as interest rate, maturity
date, date of issuance and date from which interest shall accrue, and for
instructing the Trustee to authenticate and deliver such Securities
(including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents,
promptly confirmed in writing).
(c) Subparagraph (a) of the third paragraph of Section 303 of the Indenture
is hereby amended by inserting the words "or, if all the Securities of such
series are not to be issued at one time, will be" following the words "have
been" therein.
-5-
<PAGE>
Section 1.07. Amendments to Section 305 of Indenture.
(a) The seventh paragraph of Section 305 of the Indenture is hereby amended
and restated as follows:
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of
that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of any such Securities selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
(b) The eighth paragraph of Section 305 of the Indenture is hereby amended
by inserting the words "at a time when the Depository is required to be so
registered in order to act as such depository" after the words "as amended," and
before the words "(ii) the Company" in the first sentence thereof.
(c) Section 305 of the Indenture is hereby further amended by adding the
following paragraph at the end thereof:
Except as provided in the immediately preceding paragraph and as
otherwise provided as contemplated by Section 301 with respect to any
series of Securities evidenced in whole or in part by a Book-Entry
Security, (i) a Book-Entry Security may not be transferred except as a
whole by the Depository with respect to such Security to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository and (ii) the Depository may not sell, assign,
transfer or otherwise convey any beneficial interest in a Book-Entry
Security evidencing all or part of the Securities of such Series unless
such beneficial interest is in an amount equal to an authorized
denomination for Securities of such series.
Section 1.08. Amendments to Section 501 of Indenture. Subsections (1) and
(2) of Section 501 of the Indenture are hereby amended by replacing the words
"the Federal Bankruptcy Act" each time such words appear with the words "Title
11 of the United States Code".
Section 1.09. Amendments to Section 1415 of Indenture.
(a) Subsection (a) of Section 1415 of the Indenture is hereby amended by
inserting the following words immediately before the period at the end thereof:
and with any other obligations that by their terms rank pari passu in right
of payment with the Securities or any Existing Subordinated Indebtedness or
with any obligations that rank
-6-
<PAGE>
pari passu in right of payment with the Securities or any Existing
Subordinated Indebtedness
(b) Subsection (b) of Section 1415 of the Indenture is hereby amended by
inserting the following words immediately after the words "Existing Subordinated
Indebtedness" the first time such words appear in such paragraph:
or of any other obligations that by their terms rank pari passu in right of
payment with the Securities or any Existing Subordinated Indebtedness or
with any obligations that rank pari passu in right of payment with the
Securities or any Existing Subordinated Indebtedness
(c) Subsection (b) of Section 1415 of the Indenture is hereby further
amended by inserting the words "or such pari passu obligations" immediately
after the words "Existing Subordinated Indebtedness" the last time such words
appear in such paragraph.
(d) Subsection (c) of Section 1415 of the Indenture is hereby amended by
inserting the word "such" immediately before the words "Existing Subordinated
Indebtedness" the first time such words appear in such paragraph and by
inserting the words "or any such pari passu obligations" immediately after the
words "Existing Subordinated Indebtedness" the first time such words appear in
such paragraph.
Article II
MISCELLANEOUS
-------------
Section 2.01. Defined Terms. For all purposes of this Second Supplemental
Indenture, except as otherwise stated herein, capitalized terms used but not
defined in this Second Supplemental Indenture shall have the respective meanings
assigned to them in the Indenture.
Section 2.02. Trustee's Rights, Duties and Immunities. All of the
provisions of the Indenture with respect to the rights, duties and immunities of
the Trustee shall be applicable in respect hereof as fully and with like effect
as if set forth herein in full.
Section 2.03. Application of Amendments. All amendments to the Indenture
made hereby shall have effect only with respect to the Securities of any series
created on or after the date hereof, and not with respect to the Securities of
any series created prior to the date hereof.
Section 2.04. Recitals. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
-7-
<PAGE>
SECTION 2.05. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.06. Counterparts. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
Section 2.07. Ratification and Confirmation. As amended and modified by
this Second Supplemental Indenture, the Indenture is in all respects ratified
and confirmed and the Indenture and this Second Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
-8-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
BANKERS TRUST NEW YORK CORPORATION
By: /s/ Kenneth J. Weiller
--------------------------------------------
Name: Kenneth J. Weiller
Title: Vice President
ATTEST:
/s/ Gordon S. Calder, Jr.
- -----------------------------
MARINE MIDLAND BANK (formerly Marine
Midland Bank, N.A.), as Trustee
By: /s/ Metin Caner
--------------------------------------------
Name: Metin Caner
Title: Vice President
ATTEST:
- ----------------------------
-9-
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the 1st of October, 1997, before me personally came Kenneth J. Weiller,
to me known, who, being by me duly sworn, did depose and say that s/he is Vice
President 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.
[Notarial Seal] /s/ Rebecca J. Simmons
---------------------------------------
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the 30th day of September, 1997, before me personally came Metin Caner,
to me known, who, being by me duly sworn, did depose and say that s/he is Vice
President of Marine Midland Bank, 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.
[Notarial Seal] /s/ Marcia Markowski
------------------------------------------
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<PAGE>
EXHIBIT 8.1
BANKERS TRUST COMPANY
One Bankers Trust Plaza, New York, New York 10006
Jules S. Goodman Mailing Address:
Managing Director & Tax Counsel P.O. Box 318, Church Street Station
Tel: 212-250-2835 New York, New York 10008
Fax: 212-669-1786
October 1, 1997
Bankers Trust New York Corporation
130 Liberty Street
New York, NY 10006
Re: Bankers Trust New York Corporation
U.S.$2,000,000,000
Senior Medium-Term Notes, Series A
Subordinated Medium-Term Notes, Series A
Dear Sirs:
I am Managing Director and Tax Counsel of Bankers Trust Company, and as
such I have acted as United States tax counsel in connection with the
registration under the Securities Act of 1933, as amended, of U.S.$2,000,000,000
aggregate principal amount of Senior Medium-Term Notes, Series A and
Subordinated Medium-Term Notes, Series A (collectively, the Notes) of Bankers
Trust New York Corporation (the Corporation).
In such capacity, it is my opinion that the statements of law set forth
under the heading United States Taxation in the Prospectus Supplement covering
the Notes relating to the Corporations Registration Statement on Form S-3
[Registration No. 333-32909] (the Registration Statement) are a fair and
accurate summary of the matters therein discussed.
I hereby consent to the filing of this opinion as an exhibit to the
Corporations current report on Form 8-K and its incorporation by reference in
the Registration Statement. By giving the foregoing consent, I do not admit
that I come within the category of persons whose consent is required under
Section 7 of the Securities Act of
<PAGE>
2
Bankers Trust New York Corporation October 1, 1997
1933, as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Jules S. Goodman
Jules S. Goodman
Managing Director & Tax Counsel
