Draft of September 22, 1997
Exhibit 4.11
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BANKERS TRUST NEW YORK CORPORATION
TO
MARINE MIDLAND BANK (formerly
Marine Midland Bank, N.A.), TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
Dated as of September __, 1997
Supplemental to Indenture,
dated as of April 1, 1992
as amended by
First Supplemental Indenture,
dated as of January 15, 1993
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SECOND SUPPLEMENTAL INDENTURE, dated as of September __, 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:
Article I
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AMENDMENTS
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Section 1.0 Definitions.
(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 of 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 6.00% Convertible Capital Securities due August 2033, 6 1/8%
Convertible Capital Securities due June 2033, 7 1/2% Subordinated Notes due
November 15, 2015, 7.75% Subordinated Notes due May 1, 2012, 7 1/4%
Subordinated Notes due October 15, 2011, 7 1/2% Subordinated Notes due
2010, 7 1/8% Subordinated Notes due 2010, 7 3/8% Subordinated Notes due
2008, 6% Subordinated Notes due October 2008, 7 1/8% Subordinated Notes due
March 15, 2006, 8 1/4% Subordinated Notes due 2005, Subordinated Yen Loan
due 2005, Subordinated Floating Rate Notes due 2005, Floating Rate
Subordinated Notes due 2004, Subordinated LIBOR/CMT Floating Rate
Debentures due 2003, Subordinated Constant Maturity Treasury Floating Rate
Debentures due 2003, 7.25% Subordinated Debentures due January 15, 2003,
Subordinated Floating Rate Notes due 2002, 7 1/8% Subordinated Debentures
due July 31, 2002, 8 1/8% Subordinated Notes due May 15, 2002, 8 1/8%
Subordinated Notes due 2002, 7.50% Subordinated Debentures due January 15,
2002, 9.00% Subordinated Debentures due August 1, 2001, 9.40% Subordinated
Debentures due March 1, 2001, 9.50% Subordinated Debentures due June 14,
2000, 9.20% Subordinated Capital Notes due July 15, 1999, Subordinated
Money Market Capital Notes, Series A, B and C due June 1999 and Zero Coupon
Subordinated Yen Notes due 1997-2004.
(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,".
(e) Section 101 of the Indenture is hereby further amended by amending and
restating the definition of "Other Financial Obligations" as follows:
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"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
future 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,
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:
Section 111. Benefits of Indenture.
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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,
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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.
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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.
(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".
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(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.
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
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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 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:
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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
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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.
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.
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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.
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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:_______________________________
Name:
Title:
ATTEST:
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MARINE MIDLAND BANK (formerly Marine Midland Bank,
N.A.), as Trustee
By:_______________________________
Name:
Title:
ATTEST:
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STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the ___ day of September, 1997, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that s/he is _____________________ of Bankers Trust New York
Corporation, one of the corporations described in and which executed the
foregoing instrument; that s/he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that s/he signed
her/his name thereto by like authority.
[Notarial Seal] _____________________________
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the ___ day of September, 1997, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that s/he is _____________________ 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] ________________________________
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