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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
----------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 00-0000000
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national Identification no.)
bank)
FOUR XXXXXX XXXXXX 00000
XXX XXXX, XXX XXXX (Xxx Code)
(Address of principal executive offices)
Bankers Trust Company
Legal Department
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
(Name, address and telephone number of agent for service)
----------------
SLM FUNDING CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
00-0000000
(IRS Employer Identification Number)
000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
(Address, including zip code, and telephone number, including area code, of
each Registrant's principal executive offices)
(Title of the indenture securities)
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Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to which it
is subject.
Name Address
---- ----------------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1--Restated Organization Certificate of Bankers Trust Company dated
August 6, 1998, Certificate of Amendment of the Organization Certificate of
Bankers Trust Company dated September 25, 1998, and Certificate of Amendment
of the Organization Certificate of Bankers Trust Company dated December 16,
1998, and Certificate of Amendment of the Organization Certificate of Bankers
Trust Company dated July 30th, 1999, copies attached.
Exhibit 2 --Certificate of Authority to commence business--Incorporated
herein by reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 --Authorization of the Trustee to exercise corporate trust
powers--Incorporated herein by reference to Exhibit 2 filed with
Form T-1 Statement, Registration No. 33-21047.
Exhibit 4 --Existing By-Laws of Bankers Trust Company, as amended on June
22, 1999. Copy attached.
Exhibit 5 --Not applicable.
Exhibit 6 --Consent of Bankers Trust Company required by Section 321(b) of
the Act.--Incorporated herein by reference to Exhibit 4 filed
with Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 --The latest report of condition of Bankers Trust Company dated as
of December 31, 1999. Copy attached.
Exhibit 8
--Not Applicable.
Exhibit 9
--Not Applicable.
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, Bankers Trust Company, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 1st
day of March, 2000.
BANKERS TRUST COMPANY
By: _________________________________
Xxxxxxxx X.X. Xxxxx
Vice President
3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, Bankers Trust Company, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 1st
day of March, 2000.
BANKERS TRUST COMPANY
/s/ Xxxxxxxx X.X. Xxxxx
By: _________________________________
Xxxxxxxx X.X. Xxxxx
Vice President
4
RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
----------------
Under Section 8007
Of the Banking Law
----------------
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Counterpart Filed in the Office of the Superintendent of Banks, State of New
York, August 31, 1998
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
----------------
We, Xxxxx X. Xxxxx, Xx. and Xxx Xxxxxxxx, being respectively a Managing
Director and an Assistant Secretary and a Vice President and an Assistant
Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by the
Superintendent of Banks of the State of New York on the March 5, 1903.
3. The text of the organization certificate, as amended heretofore, is
hereby restated without further amendment or change to read as herein set
forth in full, to wit:
"Certificate of Organization
of
Bankers Trust Company
Know All Men By These Presents That we, the undersigned, Xxxxx X. Xxxxx,
Xxxxx X. Xxxxxx, X. X. Xxxxxxxx, Xxxxx X. Xxxxxxx, Xxxxxxxxx X. Xxxxx, A.
Xxxxxx Xxxxxxx, Will Xxxxx, Xxxxx X. XxXxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxx, Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxxxx and Xxxxxx X. X.
Xxxxx, all being persons of full age and citizens of the United States, and a
majority of us being residents of the State of New York, desiring to form a
corporation to be known as a Trust Company, do hereby associate ourselves
together for that purpose under and pursuant to the laws of the State of New
York, and for such purpose we do hereby, under our respective hands and seals,
execute and duly acknowledge this Organization Certificate in duplicate, and
hereby specifically state as follows, to wit:
I. The name by which the said corporation shall be known is Bankers Trust
Company.
II. The place where its business is to be transacted is the City of New
York, in the State of New York.
III. Capital Stock: The amount of capital stock which the corporation is
hereafter to have is Three Billion, One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common Stock
and 1,000 shares with a par value of One Million Dollars ($1,000,000) each
designated as Series Preferred Stock.
(a) Common Stock
1. Dividends: Subject to all of the rights of the Series Preferred Stock,
dividends may be declared and paid or set apart for payment upon the Common
Stock out of any assets or funds of the corporation legally available for the
payment of dividends.
1
2. Voting Rights: Except as otherwise expressly provided with respect to the
Series Preferred Stock or with respect to any series of the Series Preferred
Stock, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, each holder of the Common
Stock being entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, and after the holders of the
Series Preferred Stock of each series shall have been paid in full the amounts
to which they respectively shall be entitled, or a sum sufficient for the
payment in full set aside, the remaining net assets of the corporation shall
be distributed pro rata to the holders of the Common Stock in accordance with
their respective rights and interests, to the exclusion of the holders of the
Series Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation shall be
entitled, as such, as a matter of right, to subscribe for or purchase any part
of any new or additional issue of stock of any class or series whatsoever, any
rights or options to purchase stock of any class or series whatsoever, or any
securities convertible into, exchangeable for or carrying rights or options to
purchase stock of any class or series whatsoever, whether now or hereafter
authorized, and whether issued for cash or other consideration, or by way of
dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from time to
time by the Board of Directors as herein provided in one or more series. The
designations, relative rights, preferences and limitations of the Series
Preferred Stock, and particularly of the shares of each series thereof, may,
to the extent permitted by law, be similar to or may differ from those of any
other series. The Board of Directors of the corporation is hereby expressly
granted authority, subject to the provisions of this Article III, to issue
from time to time Series Preferred Stock in one or more series and to fix from
time to time before issuance thereof, by filing a certificate pursuant to the
Banking Law, the number of shares in each such series of such class and all
designations, relative rights (including the right, to the extent permitted by
law, to convert into shares of any class or into shares of any series of any
class), preferences and limitations of the shares in each such series,
including, buy without limiting the generality of the foregoing, the
following:
(i) The number of shares to constitute such series (which number may at
any time, or from time to time, be increased or decreased by the Board of
Directors, notwithstanding that shares of the series may be outstanding at
the time of such increase or decrease, unless the Board of Directors shall
have otherwise provided in creating such series) and the distinctive
designation thereof;
(ii) The dividend rate on the shares of such series, whether or not
dividends on the shares of such series shall be cumulative, and the date or
dates, if any, from which dividends thereon shall be cumulative;
(iii) Whether or not the share of such series shall be redeemable, and,
if redeemable, the date or dates upon or after which they shall be
redeemable, the amount or amounts per share (which shall be, in the case of
each share, not less than its preference upon
2
involuntary liquidation, plus an amount equal to all dividends thereon
accrued and unpaid, whether or not earned or declared) payable thereon in
the case of the redemption thereof, which amount may vary at different
redemption dates or otherwise as permitted by law;
(iv) The right, if any, of holders of shares of such series to convert
the same into, or exchange the same for, Common Stock or other stock as
permitted by law, and the terms and conditions of such conversion or
exchange, as well as provisions for adjustment of the conversion rate in
such events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such series upon the
voluntary and involuntary liquidation, dissolution or winding up of the
corporation;
(vi) Whether the holders of shares of such series shall have voting
power, full or limited, in addition to the voting powers provided by law
and, in case additional voting powers are accorded, to fix the extent
thereof; and
(vii) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and privileges
of such series, provided, however, that no such rights, privileges,
qualifications, limitations or restrictions shall be in conflict with the
organization certificate of the corporation or with the resolution or
resolutions adopted by the Board of Directors providing for the issue of
any series of which there are shares outstanding.
All shares of Series Preferred Stock of the same series shall be identical
in all respects, except that shares of any one series issued at different
times may differ as to dates, if any, from which dividends thereon may
accumulate. All shares of Series Preferred Stock of all series shall be of
equal rank and shall be identical in all respects except that to the extent
not otherwise limited in this Article III any series may differ from any other
series with respect to any one or more of the designations, relative rights,
preferences and limitations described or referred to in subparagraphs (I) to
(vii) inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock of each
series shall be declared and paid or set apart for payment before any
dividends shall be declared and paid or set apart for payment on the Common
Stock with respect to the same quarterly dividend period. Dividends on any
shares of Series Preferred Stock shall be cumulative only if and to the extent
set forth in a certificate filed pursuant to law. After dividends on all
shares of Series Preferred Stock (including cumulative dividends if and to the
extend any such shares shall be entitled thereto) shall have been declared and
paid or set apart for payment with respect to any quarterly dividend period,
then and not otherwise so long as any shares of Series Preferred Stock shall
remain outstanding, dividends may be declared and paid or set apart for
payment with respect to the same quarterly dividend period on the Common Stock
out the assets or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal rank,
preference and priority as to dividends irrespective of whether or not the
rates of dividends to which the same shall be entitled shall be the same and
when the stated dividends are not paid in full, the shares of all series of
the Series Preferred Stock shall share ratably in the payment thereof in
accordance with the sums which would by payable on such shares if all
dividends were paid
3
in full, provided, however, that nay two or more series of the Series
Preferred Stock may differ from each other as to the existence and extent of
the right to cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in the
certificate filed pursuant to law with respect to any series of the Series
Preferred Stock, or as otherwise provided by law, the Series Preferred Stock
shall not have any right to vote for the election of directors or for any
other purpose and the Common Stock shall have the exclusive right to vote for
the election of directors and for all other purposes.
4. Liquidation: In the event of any liquidation, dissolution or winding up
of the corporation, whether voluntary or involuntary, each series of Series
Preferred Stock shall have preference and priority over the Common Stock for
payment of the amount to which each outstanding series of Series Preferred
Stock shall be entitled in accordance with the provisions thereof and each
holder of Series Preferred Stock shall be entitled to be paid in full such
amount, or have a sum sufficient for the payment in full set aside, before any
payments shall be made to the holders of the Common Stock. If, upon
liquidation, dissolution or winding up of the corporation, the assets of the
corporation or proceeds thereof, distributable among the holders of the shares
of all series of the Series Preferred Stock shall be insufficient to pay in
full the preferential amount aforesaid, then such assets, or the proceeds
thereof, shall be distributed among such holders ratably in accordance with
the respective amounts which would be payable if all amounts payable thereon
were paid in full. After the payment to the holders of Series Preferred Stock
of all such amounts to which they are entitled, as above provided, the
remaining assets and funds of the corporation shall be divided and paid to the
holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of any series
shall be made redeemable as provided in clause (iii) of paragraph 1 of section
(b) of this Article III, the corporation, at the option of the Board of
Directors, may redeem at any time or times, and from time to time, all or any
part of any one or more series of Series Preferred Stock outstanding by paying
for each share the then applicable redemption price fixed by the Board of
Directors as provided herein, plus an amount equal to accrued and unpaid
dividends to the date fixed for redemption, upon such notice and terms as may
be specifically provided in the certificate filed pursuant to law with respect
to the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the corporation
shall be entitled, as such, as a matter or right, to subscribe for or purchase
any part of any new or additional issue of stock of any class or series
whatsoever, any rights or options to purchase stock of any class or series
whatsoever, or any securities convertible into, exchangeable for or carrying
rights or options to purchase stock of any class or series whatsoever, whether
now or hereafter authorized, and whether issued for cash or other
consideration, or by way of dividend.
4
(c) Provisions relating to Floating Rate Non-Cumulative Preferred Stock,
Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series established hereby
shall be "Floating Rate Non-Cumulative Preferred Stock, Series A" (hereinafter
called "Series A Preferred Stock").
2. Number: The number of shares of Series A Preferred Stock shall initially
be 250 shares. Shares of Series A Preferred Stock redeemed, purchased or
otherwise acquired by the corporation shall be cancelled and shall revert to
authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred Stock shall
be entitled to receive non-cumulative cash dividends when, as and if declared
by the Board of Directors of the corporation, out of funds legally available
therefor, from the date of original issuance of such shares (the "Issue Date")
and such dividends will be payable on March 28, June 28, September 28 and
December 28 of each year ("Dividend Payment Date") commencing September 28,
1990, at a rate per annum as determined in paragraph 3(b) below. The period
beginning on the Issue Date and ending on the day preceding the firs Dividend
Payment Date and each successive period beginning on a Dividend Payment Date
and ending on the date preceding the next succeeding Dividend Payment Date is
herein called a "Dividend Period". If any Dividend payment Date shall be, in
The City of New York, a Sunday or a legal holiday or a day on which banking
institutions are authorized by law to close, then payment will be postponed to
the next succeeding business day with the same force and effect as if made on
the Dividend Payment Date, and no interest shall accrue for such Dividend
Period after such Dividend Payment Date.
(b) Dividend Rate. The dividend rare from time to time payable in respect of
Series A Preferred Stock (the "Dividend Rate") shall be determined on the
basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined on the
basis of the offered rates for deposits in U.S. dollars having a maturity
of three months commencing on the second London Business Day immediately
following such Dividend Determination Date, as such rates appear on the
Reuters Screen LIBO Page as of 11:00 A.M. London time, on such Dividend
Determination Date. If at least two such offered rates appear on the
Reuters Screen LIBO Page, LIBOR in respect of such Dividend Determination
Dates will be the arithmetic mean (rounded to the nearest one-hundredth of
a percent, with five one-thousandths of a percent rounded upwards) of such
offered rates. If fewer than those offered rates appear, LIBOR in respect
of such Dividend Determination Date will be determined as described in
paragraph (ii) below.
(ii) On any Dividend Determination Date on which fewer than those offered
rates for the applicable maturity appear on the Reuters Screen LIBO Page as
specified in paragraph (I) above, LIBOR will be determined on the basis of
the rates at which deposits in U.S. dollars having a maturity of three
months commending on the second London
5
Business Day immediately following such Dividend Determination Date and in
a principal amount of not less than $1,000,000 that is representative of a
single transaction in such market at such time are offered by three major
banks in the London interbank market selected by the corporation at
approximately 11:00 A.M., London time, on such Dividend Determination Date
to prime banks in the London market. The corporation will request the
principal London office of each of such banks to provide a quotation of its
rate. If at least two such quotations are provided, LIBOR in respect of
such Dividend Determination Date will be the arithmetic mean (rounded to
the nearest one-hundredth of a percent, with five one-thousandths of a
percent rounded upwards) of such quotations. If fewer than two quotations
are provided, LIBOR in respect of such Dividend Determination Date will be
the arithmetic mean (rounded to the nearest one-hundredth of a percent,
with five one-thousandths of a percent rounded upwards) of the rates quoted
by three major banks in New York City selected by the corporation at
approximately 11:00 A.M., New York City time, on such Dividend
Determination Date for loans in U.S. dollars to leading European banks
having a maturity of three months commencing on the second London Business
Day immediately following such Dividend Determination Date and in a
principal amount of not less than $1,000,000 that is representative of a
single transaction in such market at such time; provided, however, that if
the banks selected as aforesaid by the corporation are not quoting as
aforementioned in this sentence, then, with respect to such Dividend
Period, LIBOR for the preceding Dividend Period will be continued as LIBOR
for such Dividend Period.
(ii) The Dividend Rate for any Dividend Period shall be equal to the
lower of 18% of 50 basis points above LIBOR for such Dividend Period as
LIBOR is determined by sections (I) or (ii) above.
As used above, the term "Dividend Determination Date" shall mean, with respect
to any Dividend Period, the second London Business Day prior to the
commencement of such Dividend Period; and the term "London Business Day" shall
mean any day that is not a Saturday or Sunday and that, in New York City, is
not a day on which banking institutions generally are authorized or required
by law or executive order to close and that is a day on which dealings in
deposits in U.S. dollars are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock shall have the
voting power and rights set forth in this paragraph 4 and shall have no other
voting power or rights except as otherwise may from time to time be required
by law.
So long as any shares of Series A Preferred Stock remain outstanding, the
corporation shall not, without the affirmative vote or consent of the holders
of at least a majority of the votes of the Series Preferred Stock entitled to
vote outstanding at the time, given in person or by proxy, either in writing
or by resolution adopted at a meeting at which the holders of Series A
Preferred Stock (alone or together with the holders of one or more other
series of Series Preferred Stock at the time outstanding and entitled to vote)
vote separately as a class, alter the provisions of the Series Preferred Stock
so as to materially adversely affect its rights; provided, however, that in
the event any such materially adverse alteration affects the rights of only
the Series A Preferred Stock, then the alteration may be effected with the
vote or
6
consent of at least a majority of the votes of the Series A Preferred Stock;
provided, further, that an increase in the amount of the authorized Series
Preferred Stock and/or the creation and/or issuance of other series of Series
Preferred Stock in accordance with the organization certificate shall not be,
nor be deemed to be, materially adverse alterations. In connection with the
exercise of the voting rights contained in the preceding sentence, holders of
all series of Series Preferred Stock which are granted such voting rights (of
which the Series A Preferred Stock is the initial series) shall vote as a
class (except as specifically provided otherwise) and each holder of Series A
Preferred Stock shall have one vote for each share of stock held and each
other series shall have such number of votes, if any, for each share of stock
held as may be granted to them.
The foregoing voting provisions will not apply if, in connection with the
matters specified, provision is made for the redemption or retirement of all
outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this Article
III, upon any liquidation, dissolution or winding up of the corporation,
whether voluntary or involuntary, the holders of the Series A Preferred Stock
shall have preference and priority over the Common Stock for payment out of
the assets of the corporation or proceeds thereof, whether from capital or
surplus, of $1,000,000 per share (the "liquidation value") together with the
amount of all dividends accrued and unpaid thereon, and after such payment the
holders of Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this Article III,
Series A Preferred Stock may be redeemed, at the option of the corporation in
whole or part, at any time or from time to time at a redemption price of
$1,000,000 per share, in each case plus accrued and unpaid dividends to the
date of redemption.
At the option of the corporation, shares of Series A Preferred Stock
redeemed or otherwise acquired may be restored to the status of authorized but
unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such
redemption to the holders of the Series A Preferred Stock to be redeemed in
the following manner: a notice specifying the shares to be redeemed and the
time and place or redemption (and, if less than the total outstanding shares
are to be redeemed, specifying the certificate numbers and number of shares to
be redeemed) shall be mailed by first class mail, addressed to the holders of
record of the Series A Preferred Stock to be redeemed at their respective
addressees as the same shall appear upon the books of the corporation, not
more than sixty (60) days and not less than thirty (30) days previous to the
date fixed for redemption. In the event such notice is not given to any
shareholder such failure to give notice shall not affect the notice given to
other shareholders. If less than the whole amount of outstanding Series A
Preferred Stock is to be redeemed, the shares to be redeemed shall be selected
by lot or pro rata in any manner determined by resolution of the Board of
Directors to be fair and proper. From and after the date fixed in any such
notice as the date of redemption (unless default shall be made by the
corporation in providing moneys at the time and place of redemption for the
payment of the
7
redemption price) all dividends upon the Series A Preferred Stock so called
for redemption shall cease to accrue, and all rights of the holders of said
Series A Preferred Stock as stockholders in the corporation, except the right
to receive the redemption price (without interest) upon surrender of the
certificate representing the Series A Preferred Stock so called for
redemption, duly endorsed for transfer, if required, shall cease and
terminate. The corporation's obligation to provide moneys in accordance with
the preceding sentence shall be deemed fulfilled if, on or before the
redemption date, the corporation shall deposit with a bank or trust company
(which may be an affiliate of the corporation) having an office in the Borough
of Manhattan, City of New York, having a capital and surplus of at least
$5,000,000 funds necessary for such redemption, in trust with irrevocable
instructions that such funds be applied to the redemption of the shares of
Series A Preferred Stock so called for redemption. Any interest accrued on
such funds shall be paid to the corporation from time to time. Any funds so
deposited and unclaimed at the end of two (2) years from such redemption date
shall be released or repaid to the corporation, after which the holders of
such shares of Series A Preferred Stock so called for redemption shall look
only to the corporation for payment of the redemption price.
IV. The name, residence and post office address of each member of the
corporation are as follows:
Name Residence Post Office Address
---- --------- -------------------
Xxxxx X. Xxxxx................ 0 Xxxx 00xx Xxxxxx, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
Xxxxx X. Xxxxxx............... 00 Xxxx 00xx Xxxxxx, 14 Nassau Street,
Manhattan New York City Manhattan, New York City
X. X. Xxxxxxxx................ 0 Xxxx 00xx Xxxxxx, 139 Broadway,
Manhattan, New York City Manhattan, New York City
Xxxxx X. Xxxxxxx.............. Englewood, 0 Xxxx Xxxxxx,
Xxx Xxxxxx Xxxxxxxxx, Xxx Xxxx Xxxx
Xxxxxxxxx X. Xxxxx............ 000 Xxxx 00xx Xxxxxx, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
A. Xxxxxx Xxxxxxx............. 000 Xxxx 00xx Xxxxxx, 83 Cedar Street,
Manhattan, New York City Manhattan, New York City
Xxxxxxx Xxxxx................. Montclair, 00 Xxxxxx Xxxxxx,
Xxx Xxxxxx Xxxxxxxxx, Xxx Xxxx City
Xxxxxx X. Xxxxxxx............. Riverdale, 00 Xxxx Xxxxxx,
Xxx Xxxx Xxxxxxxxx, Xxx Xxxx Xxxx
Xxxxxxx X. Xxxxxx............. 00 Xxxx 00xx Xxxxxx, 270 Broadway,
Manhattan, New York City Manhattan, New York City
Xxxx X. Xxxxxxxx.............. Newark, 000 Xxxxxxx Xxxxxx,
Xxx Xxxxxx Xxxxxxxxx, Xxx Xxxx City
8
Name Residence Post Office Address
---- --------- -------------------
Xxxxxx X. Xxxxxx.............. 00 Xxxx 00xx Xxxxxx, 214 Broadway,
Manhattan, New York City Manhattan, New York City
Xxxxxx Xxxxxxxxxx............. Mount Xxxxxx, 00 Xxxx Xxxxxx,
Xxx Xxxx Xxxxxxxxx, Xxx Xxxx Xxxx
Xxxxxx X.X. Xxxxx............. 00 Xxxxxxxx Xxxxxx, 1 Exchange Place,
Jersey City, New Jersey Jersey City, New Jersey
V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and each for
himself does, hereby declare that he will accept the responsibilities and
faithfully discharge the duties of a director therein, if elected to act as
such, when authorized accordance with the provisions of the Banking Law of the
State of New York.
VII. The number of directors of the corporation shall not be less that 10
nor more than 25.
4. The foregoing restatement of the organization certificate was authorized
by the Board of Directors of the corporation at a meeting held on July 21,
1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th
day of August, 1998.
Xxxxx X. Xxxxx, Xx.
_____________________________________
Xxxxx X. Xxxxx, Xx.
Managing Director and Secretary
Xxx Xxxxxxxx
_____________________________________
Xxx Xxxxxxxx
Vice President and Assistant
Secretary
Xxx Xxxxxxxx
_____________________________________
Xxx Xxxxxxxx
State of New York
County of New York ss:
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Xxx Xxxxxxxx, being duly sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Xxx Xxxxxxxx
_____________________________________
Xxx Xxxxxxxx
Sworn to before me this 6th day of August, 1998.
Xxxxxx X. Xxxx
_____________________________________
Notary Public
XXXXXX X. XXXX
Notary Public State of New York
No. 00-0000000
Qualified in New York County
Commission Expires September 19,
1998
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[LOGO]
Banking Department
I, XXXXXX XXXXXX, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "RESTATED ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8007 of the Banking Law,"
dated August 6, 1998, providing for the restatement of the Organization
Certificate and all amendments into a single certificate.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 31st day of August in the Year of our Lord one thousand nine
hundred and ninety-eight.
Xxxxxx Xxxxxx
_____________________________________
Deputy Superintendent of Banks
11
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
----------------
We, Xxxxx X. Xxxxx, Xx. and Xxx Xxxxxxxx, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock
in conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock
outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1500 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized by
unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
12
IN WITNESS WHEREOF, we have made and subscribed this certificate this 25th
day of September, 1998
Xxxxx X. Xxxxx, Xx.
_____________________________________
Xxxxx X. Xxxxx, Xx.
Managing Director and Secretary
Xxx Xxxxxxxx
_____________________________________
Xxx Xxxxxxxx
Vice President and Assistant
Secretary
State of New York
ss:
County of New York
Xxx Xxxxxxxx, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Xxx Xxxxxxxx
_____________________________________
Xxx Xxxxxxxx
Sworn to before me this 25th day
of September, 1998
Xxxxxx X. Xxxx
_____________________________________
Notary Public
XXXXXX X. XXXX
Notary Public State of New York
No. 00-0000000
Qualified in New York County
Commission Expires September 19,
2000
13
[LOGO]
Banking Department
I, XXXXXX XXXXXX, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT
OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of
the Banking Law," dated September 16, 1998, providing for an increase in
authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares
with a par value of $10 each designated as Common Stock and 1,000 shares with
a par value of $1,000,000 each designated as Series Preferred Stock to
$3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each
designated as Common Stock and 1,500 shares with a par value of $1,000,000
each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 25th day of September in the Year of our Lord one thousand nine
hundred and ninety-eight.
Xxxxxx Xxxxxx
_____________________________________
Deputy Superintendent of Banks
14
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
----------------
We, Xxxxx X. Xxxxx, Xx. and Xxx Xxxxxxxx, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock
in conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock
outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1500 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Six Hundred Twenty-Seven Million, Three Hundred
Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided into
Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight Hundred
Sixty- Seven (212,730,867) shares with a par value of $10 each designated
as Common Stock and 1500 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized by
unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
15
IN WITNESS WHEREOF, we have made and subscribed this certificate this 16th
day of December, 1998.
Xxxxx X. Xxxxx, Xx.
_____________________________________
Xxxxx X. Xxxxx, Xx.
Managing Director and Secretary
Xxx Xxxxxxxx
_____________________________________
Xxx Xxxxxxxx
Vice President and Assistant
Secretary
State of New York
ss:
County of New York
Xxx Xxxxxxxx, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Xxx Xxxxxxxx
_____________________________________
Xxx Xxxxxxxx
Sworn to before me this 16th day
of December, 1998
Xxxxxx X. Xxxx
_____________________________________
Notary Public
XXXXXX X. XXXX
Notary Public State of New York
No. 00-0000000
Qualified in New York County
Commission Expires September 19,
2000
16
[LOGO]
Banking Department
I, P. XXXXXXX XXXXXX, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated December 16, 1998, providing for an
increase in authorized capital stock from $3,501,666,670 consisting of
200,166,667 shares with a par value of $10 each designated as Common Stock and
1,500 shares with a par value of $1,000,000 each designated as Series
Preferred Stock to $3,627,308,670 consisting of 212,730,867 shares with a par
value of $10 each designated as Common Stock and 1,500 shares with a par value
of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 18th day of December in the Year of our Lord one thousand nine
hundred and ninety-eight.
P. Xxxxxxx Xxxxxx
_____________________________________
Deputy Superintendent of Banks
17
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
----------------
We, Xxxxx X. Xxxxx, Xx. and Xxx Xxxxxxxx, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
reduce the minimum number of directors required from 10 to 7, and to reduce in
the maximum number of directors from 25 to 15.
4. Article VII of the organization certificate with reference to number of
directors, which reads as follows:
"VII. The number of directors of the corporation shall be not less than 10
nor more than 25"
is hereby amended to read as follows:
"VII. The number of directors of the corporation shall be not less than 7
nor more than 15"
5. The foregoing amendment of the organization certificate was authorized by
unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
18
IN WITNESS WHEREOF, we have made and subscribed this certificate this 30th
day of July 1999.
Xxxxx X. Xxxxx, Xx.
_____________________________________
Xxxxx X. Xxxxx, Xx.
Managing Director and Secretary
Xxx Xxxxxxxx
_____________________________________
Xxx Xxxxxxxx
Vice President and Assistant
Secretary
State of New York
ss:
County of New York
Xxx Xxxxxxxx, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Xxx Xxxxxxxx
_____________________________________
Xxx Xxxxxxxx
Sworn to before me this 30th day
of July, 1999
Xxxxxx X. Xxxx
_____________________________________
Notary Public
XXXXXX X. XXXX
Notary Public State of New York
No. 00-0000000
Qualified in New York County
Commission Expires September 19,
2000
19
[LOGO]
Banking Department
I, P. XXXXXXX XXXXXX, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated September 3, 1999, providing for a
reduction in the minimum number of directors required from ten to seven, and a
reduction in the maximum number of directors from twenty-five to fifteen.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 3rd day of September in the Year of our Lord one thousand nine
hundred and ninety-nine.
P. Xxxxxxx Xxxxxx
_____________________________________
Deputy Superintendent of Banks
20
BY-LAWS
JUNE 22, 1999
Bankers Trust Company
New York
21
BY-LAWS
of
Bankers Trust Company
ARTICLE I
Meetings of Stockholders
Section 1. The annual meeting of the stockholders of this Company shall be
held at the office of the Company in the Borough of Manhattan, City of New
York, on the third Tuesday in January of each year, for the election of
directors and such other business as may properly come before said meeting.
Section 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
Section 3. At all meetings of stockholders, there shall be present, either
in person or by proxy, stockholders owning a majority of the capital stock of
the Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
Section 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall
direct the proceedings and the order of business. The Secretary shall act as
secretary of such meetings and record the proceedings.
ARTICLE II
Directors
Section 1. The affairs of the Company shall be managed and its corporate
powers exercised by a Board of Directors consisting of such number of
directors, but not less than seven nor more than fifteen, as may from time to
time be fixed by resolution adopted by a majority of the directors then in
office, or by the stockholders. In the event of any increase in the number of
directors, additional directors may be elected within the limitations so
fixed, either by the stockholders or within the limitations imposed by law, by
a majority of directors then in office. One-third of the number of directors,
as fixed from time to time, shall constitute a quorum. Any one or more members
of the Board of Directors or any Committee thereof may participate in a
meeting of the Board of Directors or Committee thereof by means of a
conference telephone or similar communications equipment which allows all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at such a
meeting.
22
All directors hereafter elected shall hold office until the next annual
meeting of the stockholders and until their successors are elected and have
qualified.
No Officer-Director who shall have attained age 65, or earlier relinquishes
his responsibilities and title, shall be eligible to serve as a director.
Section 2. Vacancies not exceeding one-third of the whole number of the
Board of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for
the balance of the unexpired term.
Section 3. The Chairman of the Board shall preside at meetings of the Board
of Directors. In his absence, the Chief Executive Officer or, in his absence,
such other director as the Board of Directors from time to time may designate
shall preside at such meetings.
Section 4. The Board of Directors may adopt such Rules and Regulations for
the conduct of its meetings and the management of the affairs of the Company
as it may deem proper, not inconsistent with the laws of the State of New
York, or these By-Laws, and all officers and employees shall strictly adhere
to, and be bound by, such Rules and Regulations.
Section 5. Regular meetings of the Board of Directors shall be held from
time to time provided, however, that there shall be at least ten regular
monthly meetings during a calendar year. Special meetings of the Board of
Directors may be called upon at least two day's notice whenever it may be
deemed proper by the Chairman of the Board or, the Chief Executive Officer or,
in their absence, by such other director as the Board of Directors may have
designated pursuant to Section 3 of this Article, and shall be called upon
like notice whenever any three of the directors so request in writing.
Section 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
ARTICLE III
Committees
Section 1. There shall be an Executive Committee of the Board consisting of
not less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the
Executive Committee. In his absence, the Chief Executive Officer or, in his
absence, such other member of the Committee as the Committee from time to time
may designate shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted
by law all of the powers of the Board of Directors, except when the latter is
in session, and shall keep minutes of its proceedings, which shall be
presented to the Board of Directors at its next subsequent meeting. All acts
done and powers and authority conferred by the Executive Committee from time
to time shall be and be deemed to be, and may be certified as being, the act
and under the authority of the Board of Directors.
23
A majority of the Committee shall constitute a quorum, but the Committee may
act only by the concurrent vote of not less than one-third of its members, at
least one of whom must be a director other than an officer. Any one or more
directors, even though not members of the Executive Committee, may attend any
meeting of the Committee, and the member or members of the Committee present,
even though less than a quorum, may designate any one or more of such
directors as a substitute or substitutes for any absent member or members of
the Committee, and each such substitute or substitutes shall be counted for
quorum, voting, and all other purposes as a member or members of the
Committee.
Section 2. There shall be an Audit Committee appointed annually by
resolution adopted by a majority of the entire Board of Directors which shall
consist of such number of directors, who are not also officers of the Company,
as may from time to time be fixed by resolution adopted by the Board of
Directors. The Chairman shall be designated by the Board of Directors, who
shall also from time to time fix a quorum for meetings of the Committee. Such
Committee shall conduct the annual directors' examinations of the Company as
required by the New York State Banking Law; shall review the reports of all
examinations made of the Company by public authorities and report thereon to
the Board of Directors; and shall report to the Board of Directors such other
matters as it deems advisable with respect to the Company, its various
departments and the conduct of its operations.
In the performance of its duties, the Audit Committee may employ or retain,
from time to time, expert assistants, independent of the officers or personnel
of the Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and
auditing methods of the Company and its system of internal protective controls
to the extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals
thereof shall meet at other times on call of the Chairman.
Section 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
Officers
Section 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice
Chairmen, one or more Executive Vice Presidents, one or more Senior Managing
Directors, one or more Managing Directors, one or more Senior Vice Presidents,
one or more Principals, one or more Vice Presidents, one or more General
24
Managers, a Secretary, a Controller, a Treasurer, a General Counsel, one or
more Associate General Counsels, a General Auditor, a General Credit Auditor,
and one or more Deputy Auditors, who need not be directors. The officers of
the corporation may also include such other officers or assistant officers as
shall from time to time be elected or appointed by the Board. The Chairman of
the Board or the Chief Executive Officer or, in their absence, the President,
the Senior Vice Chairman or any Vice Chairman, may from time to time appoint
assistant officers. All officers elected or appointed by the Board of
Directors shall hold their respective offices during the pleasure of the Board
of Directors, and all assistant officers shall hold office at the pleasure of
the Board or the Chairman of the Board or the Chief Executive Officer or, in
their absence, the President, the Senior Vice Chairman or any Vice Chairman.
The Board of Directors may require any and all officers and employees to give
security for the faithful performance of their duties.
Section 2. The Board of Directors shall designate the Chief Executive
Officer of the Company who may also hold the additional title of Chairman of
the Board, President, Senior Vice Chairman or Vice Chairman and such person
shall have, subject to the supervision and direction of the Board of Directors
or the Executive Committee, all of the powers vested in such Chief Executive
Officer by law or by these By-Laws, or which usually attach or pertain to such
office. The other officers shall have, subject to the supervision and
direction of the Board of Directors or the Executive Committee or the Chairman
of the Board or, the Chief Executive Officer, the powers vested by law or by
these By-Laws in them as holders of their respective offices and, in addition,
shall perform such other duties as shall be assigned to them by the Board of
Directors or the Executive Committee or the Chairman of the Board or the Chief
Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to
the Board of Directors for the determination of the program of the internal
audit function and the evaluation of the adequacy of the system of internal
controls. Subject to the Board of Directors, the General Auditor shall have
and may exercise all the powers and shall perform all the duties usual to such
office and shall have such other powers as may be prescribed or assigned to
him from time to time by the Board of Directors or vested in him by law or by
these By-Laws. He shall perform such other duties and shall make such
investigations, examinations and reports as may be prescribed or required by
the Audit Committee. The General Auditor shall have unrestricted access to all
records and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system
of internal controls of the Company which he deems advisable or which the
Audit Committee may request. Additionally, the General Auditor shall have the
duty of reporting independently of all officers of the Company to the Audit
Committee at least quarterly on any matters concerning the internal audit
program and the adequacy of the system of internal controls of the Company
that should be brought to the attention of the directors except those matters
responsibility for which has been vested in the General Credit Auditor. Should
the General Auditor deem any matter to be of special immediate importance, he
shall report thereon forthwith to the Audit Committee. The General Auditor
shall report to the Chief Financial Officer only for administrative purposes.
25
The General Credit Auditor shall be responsible to the Chief Executive
Officer and, through the Audit Committee, to the Board of Directors for the
systems of internal credit audit, shall perform such other duties as the Chief
Executive Officer may prescribe, and shall make such examinations and reports
as may be required by the Audit Committee. The General Credit Auditor shall
have unrestricted access to all records and may delegate such authority to
subordinates.
Section 3. The compensation of all officers shall be fixed under such plan
or plans of position evaluation and salary administration as shall be approved
from time to time by resolution of the Board of Directors.
Section 4. The Board of Directors, the Executive Committee, the Chairman of
the Board, the Chief Executive Officer or any person authorized for this
purpose by the Chief Executive Officer, shall appoint or engage all other
employees and agents and fix their compensation. The employment of all such
employees and agents shall continue during the pleasure of the Board of
Directors or the Executive Committee or the Chairman of the Board or the Chief
Executive Officer or any such authorized person; and the Board of Directors,
the Executive Committee, the Chairman of the Board, the Chief Executive
Officer or any such authorized person may discharge any such employees and
agents at will.
ARTICLE V
Indemnification of Directors, Officers and Others
Section 1. The Company shall, to the fullest extent permitted by Section
7018 of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by
or in the right of the Company to procure a judgment in its favor and an
action by or in the right of any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, which any director or officer of the Company
is servicing or served in any capacity at the request of the Company by reason
of the fact that he, his testator or intestate, is or was a director or
officer of the Company, or is serving or served such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
in any capacity, against judgments, fines, amounts paid in settlement, and
costs, charges and expenses, including attorneys' fees, or any appeal therein;
provided, however, that no indemnification shall be provided to any such
person if a judgment or other final adjudication adverse to the director or
officer establishes that (i) his acts were committed in bad faith or were the
result of active and deliberate dishonesty and, in either case, were material
to the cause of action so adjudicated, or (ii) he personally gained in fact a
financial profit or other advantage to which he was not legally entitled.
Section 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law,
26
whether pursuant to rights granted pursuant to, or provided by, the New York
Banking Law or other rights created by (i) a resolution of stockholders, (ii)
a resolution of directors, or (iii) an agreement providing for such
indemnification, it being expressly intended that these By-Laws authorize the
creation of other rights in any such manner.
Section 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 1, upon receipt of a written undertaking by
or on behalf of such person to repay such amount(s) if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
Section 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the
election of its directors is held by the Company, or (ii) any employee benefit
plan of the Company or any corporation referred to in clause (i) in any
capacity shall be deemed to be doing so at the request of the Company. In all
other cases, the provisions of this Article V will apply (i) only if the
person serving another corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise so served at the specific request of
the Company, evidenced by a written communication signed by the Chairman of
the Board, the Chief Executive Officer or the President, and (ii) only if and
to the extent that, after making such efforts as the Chairman of the Board,
the Chief Executive Officer or the President shall deem adequate in the
circumstances, such person shall be unable to obtain indemnification from such
other enterprise or its insurer.
Section 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect
at the time indemnification is sought.
Section 6. The right to be indemnified or to the reimbursement or
advancement of expense pursuant to this Article V (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Company and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
Section 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim.
27
Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board
of Directors, independent legal counsel, or its stockholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
Section 8. A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in Section 1 shall be entitled to indemnification only as provided
in Sections 1 and 3, notwithstanding any provision of the New York Banking Law
to the contrary.
ARTICLE VI
Seal
Section 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the
Company and such officers as the Chairman of the Board, the Chief Executive
Officer or the Secretary may from time to time direct in writing, to be
affixed to certificates of stock and other documents in accordance with the
directions of the Board of Directors or the Executive Committee.
Section 2. The Board of Directors may provide, in proper cases on a
specified occasion and for a specified transaction or transactions, for the
use of a printed or engraved facsimile seal of the Company.
ARTICLE VII
Capital Stock
Section 1. Registration of transfer of shares shall only be made upon the
books of the Company by the registered holder in person, or by power of
attorney, duly executed, witnessed and filed with the Secretary or other
proper officer of the Company, on the surrender of the certificate or
certificates of such shares properly assigned for transfer.
ARTICLE VIII
Construction
Section 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
Amendments
Section 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
28
I, Xxxxx Xxxxxxx, Assistant Vice President of Bankers Trust Company, New
York, New York, hereby certify that the foregoing is a complete, true and
correct copy of the By-Laws of Bankers Trust Company, and that the same are in
full force and effect at this date.
_____________________________________
Xxxxx Xxxxxxx
Assistant Vice President
DATED: March 1, 2000
29
Legal Title Bankers Trust Call Date: State#: 36- FFIEC 031
of Bank: Company 09/30/99 4840 Page RC-1
Address: 130 Liberty Vendor ID: D Cert#: 00623
City, State Street Transit#:
ZIP: 21001003
Xxx Xxxx, XX
00000
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December, 31 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
RCFD C400
---------------------
Dollar Amounts in Thousands
ASSETS
1. Cash and balances due from depository
institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency 0081 3,205,000 1.a.
and coin (1)..................................
b. Interest-bearing balances (2)............... 0071 1,850,000 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule 1754 0 2.a.
RC-B, column A)...............................
b. Available-for-sale securities (from Schedule 1773 3,129,000 2.b.
RC-B, column D)...............................
3. Federal funds sold and securities purchased 135 9,239,000 3.
under agreements to resell.....................
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income 2122 17,491,000 4.a.
(from Schedule RC-C ..........................
b. LESS: Allowance for loan and lease losses... 3123 477,000 4.b.
c. LESS: Allocated transfer risk reserve....... 3128 0 4.c.
d. Loans and leases, net of unearned income, 2125 17,014,000 4.d.
allowance, and reserve (item 4.a minus 4.b and
4.c)..........................................
5. Trading Assets (from schedule RC-D)......... 3545 12,551,000 5.
6. Premises and fixed assets (including 2145 625,000 6.
capitalized leases)............................
7. Other real estate owned (from Schedule RC- 2150 85,000 7.
M).............................................
8. Investments in unconsolidated subsidiaries 2130 564,000 8.
and associated companies (from Schedule RC-M)..
9. Customers' liability to this bank on 2155 262,000 9.
acceptances outstanding........................
10. Intangible assets (from Schedule RC-M)...... 2143 82,000 10.
11. Other assets (from Schedule RC-F)........... 2160 2,550,000 11.
12. Total assets (sum of items 1 through 11).... 2170 51,156,000 12.
--------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
30
Legal Title Bankers Trust Call Date: State#: FFIEC 031
of Bank: Company 06/30/99 364840 Page RC-2
Address: 130 Liberty Vendor ID: D Cert#: 00623
City, State Street Transit#:
Zip: New York, NY 21001003
10006
Schedule RC--Continued
Dollar Amounts in Thousands
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of RCON 2200
columns A and C from Schedule RC-E, part
I)......................................... 13,534,000 13.a.
(1) Noninterest-bearing(1)................ RCON 6631 2,815,000 13.a.(1)
(2) Interest-bearing...................... RCON 6636 10,719,000 13.a.(2)
b. In foreign offices, Edge and Agreement RCFN 2200
subsidiaries, and IBFs (from Schedule RC-E
part II)................................... 12,755,000 13.b.
(1) Noninterest-bearing................... RCFN 6631 2,404,000 13.b.(1)
(2) Interest-bearing...................... RCFN 6636 10,351,000 13.b.(2)
14. Federal funds purchased and securities RCFD 2800
sold under agreements to repurchase......... 5,483,000 14.
15. a. Demand notes issued to the U.S. RCON 2840
Treasury.................................... 500,000 15.a.
b. Trading liabilities (from Schedule RC- RCFD 3548
D)......................................... 2,950,000 15.b.
16. Other borrowed money (includes mortgage
indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one year or RCFD 2332
less....................................... 2,341,000 16.a.
b. With a remaining maturity of more than A547
one year through three years............... 1,798,000 16.b.
c. With a remaining maturity of more than A548
three years................................ 128,000 16.c
17. Not Applicable........................... 17.
18. Bank's liability on acceptances executed RCFD 2920
and outstanding............................. 262,000 18.
19. Subordinated notes and debentures(2)..... RCFD 3200 328,000 19.
20. Other liabilities (from Schedule RC-G)... RCFD 2930 4,888,000 20.
21. Total liabilities (sum of items 13 RCFD 2948
through 20)................................. 44,967,000 21.
22. Not Applicable........................... 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related RCFD 3838
surplus..................................... 1,500,000 23.
24. Common stock............................. RCFD 3230 2,127,000 24.
25. Surplus (exclude all surplus related to RCFD 3839
preferred stock)............................ 542,000 25.
26. a. Undivided profits and capital RCFD 3632
reserves.................................... 2,055,000 26.a.
b. Net unrealized holding gains (losses) on RCFD 8434
available-for-sale securities.............. (2,000) 26.b.
c. Accumulated net gains (losses) on cash RCFD 4336
flow xxxxxx................................ 0 26c.
27. Cumulative foreign currency translation RCFD 3284
adjustments................................. (33,000) 27.
28. Total equity capital (sum of items 23 RCFD 3210
through 27)................................. 6,189,000 28.
29. Total liabilities and equity capital (sum RCFD 3300
of items 21 and 28)......................... 51,156,000 29.
Memorandum
To be reported only with the March Report of Condition.
Number
--------------------
1. Indicate in the box at the right the
number of the statement below that best
describes the most comprehensive level of
auditing work performed for the bank by
independent external auditors
as of any date during 1997............... RCFD 6724 N/A M.1
1 = Independent audit of the bank 4 = Directors' examination of the
conducted in accordance with bank performed by other external
generally accepted auditing auditors (may be required by
standards by a certified public state chartering authority)
accounting firm which submits a 5 = Review of the bank's financial
report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's
parent holding company conducted financial statements by external
in accordance with generally auditors
accepted auditing standards by a 7 = Other audit procedures
certified public accounting firm (excluding tax preparation work)
which submits a report on the 8 = No eternal audit work.
consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the
bank conducted in accordance
with generally accepted auditing
standards by a certified public
accounting firm (may be required
by state chartering authority)
--------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
31
