EXHIBIT 1.1
BANKERS TRUST NEW YORK CORPORATION
BT PREFERRED CAPITAL TRUSTS I, II, III AND IV
Preferred Securities
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Underwriting Agreement
Standard Provisions
(January 1997)
______________________________
From time to time, BANKERS TRUST NEW YORK CORPORATION, a New York
corporation (the "Corporation"), and any of BT Preferred Capital Trust I, BT
Preferred Capital Trust II, BT Preferred Capital Trust III or BT Preferred
Capital Trust IV, each a statutory business trust created under the laws of
Delaware (each, an "Issuer Trust"), may enter into one or more underwriting
agreements (each, an "Underwriting Agreement") that provide for the sale of
series of preferred securities (the "Preferred Securities") of the applicable
Issuer Trust to one or more underwriters named therein (the "Underwriters"),
severally where there are more than one. The standard provisions set forth
herein may be incorporated by reference in any such Underwriting Agreement. The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as "this Agreement". The Corporation and the
Issuer Trust that is to issue the series of Preferred Securities to which any
Underwriting Agreement relates are referred to collectively in this Agreement as
the "Offerors". Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. If an Underwriting
Agreement provides for the purchase of the Offered Securities (as defined below)
by an Underwriter or Underwriters, but does not provide for a Manager or
Managers, the references to the Manager herein shall be deemed to refer to such
Underwriter or Underwriters.
The Preferred Securities issued by each Issuer Trust will be issued
pursuant to an amended and restated declaration of trust (the "Declaration of
Trust") relating to such Issuer Trust, among the Corporation, as depositor,
Wilmington Trust Company, a Delaware banking corporation, as property trustee
(the "Property Trustee"), Wilmington Trust
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Company, a Delaware banking corporation, as Delaware trustee (the "Delaware
Trustee"), the administrative trustees named therein (the "Administrative
Trustees"), and the holders from time to time of the undivided beneficial
interests in the assets of such Issuer Trust. The Preferred Securities of each
series will be guaranteed by the Corporation, to the extent set forth in the
Prospectus (as defined below), pursuant to a guarantee (each, a "Guarantee
Agreement") between the Corporation and Wilmington Trust Company, a Delaware
banking corporation, as guarantee trustee (the "Guarantee Trustee"). Each
Issuer Trust will hold a series of junior subordinated debentures (the "Junior
Subordinated Debentures") of the Corporation issued pursuant to a junior
subordinated indenture (the "Indenture") between the Corporation and Wilmington
Trust Company, as trustee (the "Debenture Trustee"). The Corporation will also
enter into an agreement as to expenses and liabilities (the "Expense Agreement")
with each Issuer Trust as described in the Prospectus. The Preferred
Securities, the Guarantee Agreements and the Junior Subordinated Debentures are
referred to collectively in this Agreement as the "Offered Securities".
I.
The Corporation and the Issuer Trusts have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(Registration Nos. 333-15809 and ▇▇▇-▇▇▇▇▇-▇▇ through 04), including a
prospectus relating to, among other securities, the Offered Securities and has
filed with, or mailed for filing to, the Commission, a prospectus supplement
specifically relating to the issue of the Offered Securities pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Securities Act"). The
term "Registration Statement" means such registration statement as amended to
the date of the Underwriting Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement specifically
relating to the Offered Securities, as filed with, or mailed for filing to, the
Commission pursuant to Rule 424. The term "preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the documents, if any, incorporated by
reference therein.
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II.
The Offerors are advised by the Manager that the Underwriters propose
to make a public offering of their respective portions of the Offered Securities
as soon after this Agreement is entered into as in the Manager's judgment is
advisable. The terms of the public offering of the Offered Securities are set
forth in the Prospectus.
III.
Payment for the Offered Securities shall be made by certified or
official bank check or checks or fedwire payable to the order of the Issuer
Trust in Federal (same day) funds or in such other manner and such other funds
as may be set forth in the Underwriting Agreement, at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Offered Securities
registered in such names and in such denominations as the Manager shall request
in writing not less than two full business days prior to the date of delivery or
as may be set forth in the Underwriting Agreement. The time and date of such
payment and delivery with respect to the Offered Securities are herein referred
to as the "Closing Date".
IV.
The several obligations of the Underwriters to purchase and pay for
the Offered Securities are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and there shall have been no
material adverse change (not in the ordinary course of business) in the
financial condition or results of operations of the Corporation and its
subsidiaries, taken as a whole, from that set forth in the Prospectus since
the effective dates as of which information is given therein; and the
Manager shall have received, on the Closing Date, a certificate, dated the
Closing Date and signed by an executive officer of the Corporation, to the
foregoing effect and also to the effect that the representations and
warranties of the Corporation in this Agreement are true and correct in all
material respects as of the Closing Date. The officer making
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such certificate may rely upon the best of his knowledge as to proceedings
pending or threatened.
(b) The Manager shall have received an opinion or opinions, dated the
Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Offerors, to
the effect set forth in Exhibit A.
(c) The Manager shall have received an opinion or opinions, dated the
Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., counsel to the Offerors, to the
effect set forth in Exhibit B.
(d) The Manager shall have received an opinion or opinions, dated the
Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special tax counsel to the Offerors,
to the effect set forth in Exhibit C.
(e) The Manager shall have received an opinion or opinions, dated the
Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, Delaware counsel to the
Offerors, to the effect set forth in Exhibit D.
(f) The Manager shall have received an opinion or opinions, dated the
Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Property Trustee,
the Delaware Trustee, the Guarantee Trustee and the Debenture Trustee, to
the effect set forth in Exhibit E.
(g) The Manager shall have received an opinion or opinions, dated the
Closing Date, of White & Case, counsel to the Underwriters, to the effect
set forth in Exhibit F.
(h) The Manager shall have received a letter, dated the Closing Date
and in form and substance satisfactory to the Manager, from the independent
accountants to the Corporation, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Registration Statement
and the Prospectus, and confirming that they are independent accountants
within the meaning of the Securities Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the respective applicable
published rules and regulations of the Commission thereunder.
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V.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Offerors covenant as follows:
(a) To furnish the Manager, without charge, a copy of the Registration
Statement including exhibits and materials, if any, incorporated by
reference therein and, during the period mentioned in paragraph (c) below,
as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as the Manager may
reasonably request. The terms "supplement" and "amendment" or "amend" as
used in this Agreement shall include all documents filed by the Corporation
with the Commission subsequent to the date of the Basic Prospectus, pursuant
to the Exchange Act, which are deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish the Manager
with a copy of each such proposed amendment or supplement.
(c) If, at any time during the period following the public offering of
the Offered Securities during which, in the opinion of counsel for the
Underwriters, the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to ensure that the Prospectus does not contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
their own expense, to the Underwriters, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances under which they
were made, be misleading or so that the Prospectus will comply with law, as
the case may be.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all reasonable expenses (including fees
and disbursements of counsel) in
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connection with such qualification, the determination of the eligibility of
the Offered Securities for investment under the laws of such jurisdictions
as the Manager may reasonably designate, the printing of any memoranda
concerning the aforesaid qualification or eligibility and the rating of the
Offered Securities by securities rating services.
(e) To make generally available to the Corporation's security holders
as soon as practicable, but not later than sixteen months, after the date of
each Underwriting Agreement an earnings statement covering a period of at
least twelve months beginning after the later of (i) the effective date of
the Registration Statement, (ii) the effective date of the most recent post-
effective amendment to the Registration Statement to become effective prior
to the date of such Underwriting Agreement, and (iii) the date of the
Corporation's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Underwriting Agreement, which shall
satisfy the provisions of Section 11(a) of the Securities Act.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of the Closing Date or
the removal by the Manager of trading restrictions on the Offered
Securities, not to offer, sell, contract to sell or otherwise dispose of
(other than upon exercise of warrants therefor, on conversion of convertible
securities or pursuant to registration rights agreements, in each case
outstanding at the date of the Underwriting Agreement, or in an offering
made exclusively outside the United States) any securities of either Offeror
substantially similar to the Preferred Securities without the prior written
consent of the Manager.
VI.
The Corporation covenants and agrees with each Underwriter that the
Corporation will pay or cause to be paid the following: (i) the fees for the
registration of the Offered Securities under the Securities Act; (ii) the fees,
disbursements and expenses of the Corporation's accountants in connection with
the registration of the Offered Securities under the Securities Act and all
other expenses incurred by it in connection with the preparation and filing of
the Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements
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thereto and delivery of copies thereof to the Underwriters; (iii) all expenses
(including reasonable fees and disbursements of counsel) payable pursuant to
paragraph (d) of Article V of this Agreement; (iv) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Offered Securities, fees paid in connection
with any listing of the Offered Securities on the New York Stock Exchange, Inc.
or any other stock exchange or quotation system and any fees of rating agencies;
(v) all costs and expenses incurred in the preparation and printing of the
Prospectus, the Registration Statement and any amendments or supplements
thereto, this Agreement and all other documents relating to the issuance,
underwriting and initial offering of the Offered Securities; (vi) all costs,
fees and expenses relating to the preparation and filing via the Commission's
Electronic Data Gathering and Retrieval System of the Prospectus, the
Registration Statement and any amendments or supplements thereto, this Agreement
and all other documents relating to the issuance, underwriting and initial
offering of the Offered Securities; and (vii) all other costs and expenses
incident to the performance by the Offerors of their obligations hereunder that
are not otherwise specifically provided for in this Article VI.
VII.
The Corporation represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder; (ii) each part of the Registration
Statement (including the documents incorporated by reference therein), filed
with the Commission pursuant to the Securities Act relating to the Offered
Securities, when such part became effective, did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; (iii)
each preliminary prospectus, if any, filed pursuant to Rule 424 under the
Securities Act complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder; (iv) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder; and (v) the Registration Statement and the Prospectus do
not contain and, as amended
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or supplemented, if applicable, will not contain, any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that these representations and warranties do not
apply to statements in or omissions from the Registration Statement, any
preliminary prospectus or the Prospectus based upon information furnished to the
Corporation in writing by an Underwriter expressly for use therein.
Each Offeror agrees, jointly and severally, to indemnify and hold
harmless each Underwriter and each person, if any, who controls such Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus, or in any blue sky application or related document
prepared pursuant to paragraph (d) of Article V hereof, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Corporation by an Underwriter
expressly for use therein; provided that the foregoing indemnity agreement with
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respect to any Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Securities, or any person controlling such Underwriter, if (i)
the loss, claim, damage or liability asserted by such purchaser was caused by a
defect in the Prospectus delivered to such purchaser after the period referred
to in paragraph (c) of Article V of this Agreement and such defect would not
have existed before the expiry of such period, or (ii) a copy of the Prospectus
(as then amended or supplemented if the Corporation shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of the Offered Securities to such person, and if the Prospectus (as so amended
or supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Corporation, its directors and its officers who sign the
Registration
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Statement, any authorized representative of the Corporation and any person
controlling the Corporation to the same extent as the foregoing indemnity from
the Corporation to each Underwriter, but only with reference to information
furnished in writing by such Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus and any amendments or
supplements thereto.
If any proceeding (including any governmental investigation) shall be
threatened or instituted involving any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. In
the case of parties indemnified pursuant to the second preceding paragraph, such
separate firm shall be designated in writing by the Manager. In the case of
parties indemnified pursuant to the immediately preceding paragraph, such
separate firm shall be designated in writing by the Corporation. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
If the indemnification provided for in this Article VII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect
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of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors on the one hand
and the Underwriters on the other in connection with the offering of the Offered
Securities shall be deemed to be in the same proportion as the total net
proceeds (before deducting expenses) from the offering of such Offered
Securities received by the Offerors bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Offerors on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Offerors or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statements or omissions.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if all of the Underwriters are treated as a single entity
for such purpose) or by any other method of allocation that does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Article VII, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total public offering price of the Offered Securities purchased by such
Underwriter exceeds the amount
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of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Article VII are
several, in proportion to the respective number of Preferred Securities
purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article
VII and the representations and warranties of the Corporation in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Offerors, their directors or officers, any authorized
representative of an Offeror or any person controlling an Offeror and (iii)
acceptance of and payment for any of the Offered Securities.
VIII.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Offerors, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange,
Inc., or on any other stock exchange or automated quotation system on which the
Offered Securities are or are to be listed or to which the Offered Securities
have been or are to be admitted for quotation, shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York State
authorities or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Manager, impracticable to market the Offered Securities.
IX.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Offered Securities that it or they have agreed to purchase
hereunder and the aggregate number of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed or
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refused to purchase is not more than one-tenth of the aggregate number of
Offered Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions which the number of Offered Securities
set forth opposite their names in the Underwriting Agreement bears to the
aggregate number of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Offered Securities and the aggregate number of Offered Securities with respect
to which such default occurs is more than one-tenth of the aggregate number of
Offered Securities to be purchased on such date, and arrangements satisfactory
to the Manager and the Offerors for the purchase of such Offered Securities are
not made within 36 hours after such default, this Agreement shall thereupon
terminate without liability on the part of any non-defaulting Underwriter or of
the Offerors. In any such case either the Manager or the Offerors shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
X.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Corporation to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Corporation shall be unable to perform its obligations under this
Agreement, the Corporation will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement, with respect to themselves, severally, for
all reasonable out-of-pocket expenses (including the fees and disbursements of
their counsel) reasonably incurred by such Underwriters in connection with the
Offered Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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EXHIBIT A
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The opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, as special counsel to the
Offerors, to be delivered pursuant to Article IV, paragraph (b) of this
Agreement shall be to the effect that:
1. This Agreement has been duly authorized, executed and delivered
by the Corporation.
2. The Declaration of Trust has been duly authorized, executed and
delivered by the Corporation and duly qualified under the Trust Indenture Act of
1939.
3. The Guarantee Agreement has been duly authorized, executed and
delivered by the Corporation and duly qualified under the Trust Indenture Act of
1939; and the Guarantee Agreement constitutes a valid and legally binding
obligation of the Corporation enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
4. The Indenture has been duly authorized, executed and delivered by
the Corporation and duly qualified under the Trust Indenture Act of 1939; the
Junior Subordinated Debentures have been duly authorized, executed,
authenticated and delivered; and the Indenture and the Junior Subordinated
Debentures constitute valid and legally binding obligations of the Corporation
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
5. The Trust is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in Investment
Company Act.
6. The statements set forth in the Prospectus Supplement under the
captions "Certain Terms of Preferred Securities", "Certain Terms of Subordinated
Debentures" and "Certain Terms of Guarantee" and in the Prospectus under the
captions "Description of Preferred Securities", "Description of Junior
Subordinated Debentures", "Description of Guarantees" and "Relationship Among
the Preferred Securities, the Corresponding Junior Subordinated
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Debentures, the Guarantees and the Expense Agreements", insofar as such
statements purport to describe the provisions of the laws and documents referred
to therein, fairly present the matters referred to therein.
In rendering such opinion, such counsel may rely as to certain matters
on information obtained from public officials, officers of the Offerors and
other sources believed by them to be responsible. Further, such counsel may
state that they do not express an opinion as to any laws other than the laws of
the State of New York and the Federal law of the United States of America. Such
counsel may also include such other exceptions and qualifications as may be
mutually agreed upon by such counsel and the Manager.
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EXHIBIT B
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The opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., as counsel to the Offerors, to
be delivered pursuant to Article IV, paragraph (c) of this Agreement shall be to
the effect that:
1. The Corporation has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New York, duly
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended, and has all requisite corporate power and authority to own its
properties and conduct its business as described in the Prospectus.
2. Bankers Trust Company has been duly incorporated, is an existing
banking corporation in good standing under the laws of the State of New York,
and has all requisite corporate power and authority to own its properties and
conduct its business as described in the Prospectus.
3. No consent, approval, authorization or order of any court or
governmental agency, authority or body is required for the consummation by the
Corporation of the transactions contemplated by this Agreement, it being
understood that such counsel expresses no opinion as to the securities or Blue
Sky laws of any jurisdiction.
4. The issuance and sale of the Preferred Securities by the Issuer
Trust and the execution, delivery and performance by the Corporation of this
Agreement will not contravene any applicable Federal or New York law or
regulation, the certificate of incorporation or by-laws of the Corporation, or
to such counsel's knowledge, any agreement or other instrument binding upon the
Corporation, subject in each case to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles, it
being understood that such counsel expresses no opinion as to the securities or
Blue Sky laws of any jurisdiction.
Such counsel shall further state that each part of the Registration
Statement, when such part became effective, and the Prospectus, as of the date
of the Prospectus Supplement, appeared on their face to be appropriately
responsive, in all material respects, to the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder; and that
nothing has come to
B-1
his attention that has caused him to believe that the Registration Statement, as
of its effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of the
date of the Prospectus Supplement, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
opinion as to the financial statements or other data of a financial or
statistical nature or the Statements of Eligibility (Forms T-1) under the Trust
Indenture Act of 1939, as amended, included in the Registration Statement.
In rendering such opinion, such counsel may rely as to certain matters
on information obtained from public officials, officers of the Offerors and
other sources believed by him to be responsible. Further, such counsel may
state that he does not express an opinion as to any laws other than the laws of
the State of New York and the Federal law of the United States of America. Such
counsel may also include such other exceptions and qualifications as may be
mutually agreed upon by such counsel and the Manager.
B-2
EXHIBIT C
---------
The opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, as special tax counsel to the
Offerors, to be delivered pursuant to Article IV, paragraph (d) of this
Agreement shall confirm the opinion set forth in the Prospectus Supplement under
the heading "Certain Federal Income Tax Consequences".
In rendering such opinion, such counsel may assume that the operative
documents for the Preferred Securities described in the Prospectus will be
performed in accordance with the terms described therein. Such counsel may also
include such other exceptions and qualifications as may be mutually agreed upon
by such counsel and the Manager.
C-1
EXHIBIT D
---------
The opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, as special Delaware counsel
to the Offerors, to be delivered pursuant to Article IV, paragraph (e) of this
Agreement shall be to the effect that:
1. The Issuer Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Issuer Trust as a business trust have been made, and, under the
Delaware Act and the Declaration of Trust, the Issuer Trust has the requisite
trust power and authority to conduct its business as presently conducted and as
described in the Prospectus.
2. No authorization, approval, consent or order of any Delaware court
or governmental authority or agency is required to be obtained by the Issuer
Trust solely in connection with the execution, delivery and performance by the
Issuer Trust of this Agreement or the consummation by the Issuer Trust of the
transactions contemplated thereby.
3. The issuance and sale by the Issuer Trust of the Preferred
Securities, the execution, delivery and performance by the Issuer Trust of this
Agreement and the consummation by the Issuer Trust of the transactions
contemplated thereby will not (i) violate any of the provisions of the
Certificate of Trust of the Issuer Trust, the Guarantee Agreement, the
Indenture, the Junior Subordinated Debentures or the Declaration of Trust, (ii)
violate any judgments, orders or decrees of any court of the State of Delaware,
(iii) violate any applicable Delaware law or administrative regulation, or (iv)
to our knowledge after consultation with the Property Trustee and the
Corporation, as depositor of the Issuer Trust, conflict with or result in a
breach of, or violation of any of the provisions of, or constitute a default
under, any agreement to which the Issuer Trust is a party.
4. Under the Delaware Act and the Declaration of Trust, the Issuer
Trust has the requisite power and authority to execute and deliver, and to
perform its obligations under, this Agreement and the Expense Agreement, and the
execution and delivery by the Issuer Trust of this Agreement and the Expense
Agreement and the performance of its obligations hereunder and thereunder have
been duly
D-1
authorized by the requisite trust action on the part of the Issuer Trust.
5. The Preferred Securities have been duly authorized by the
Declaration of Trust and, upon the execution of the certificate evidencing the
Preferred Securities by an Administrative Trustee on behalf of the Issuer Trust,
will have been duly executed by the Issuer Trust and, when duly issued,
delivered and paid for in accordance with this Agreement, will be validly issued
and, subject to the qualifications set forth in this paragraph 5, fully paid and
nonassessable beneficial interests in the assets of the Issuer Trust. The
Holders of the Preferred Securities, as beneficial owners of the Issuer Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Holders of the
Preferred Securities may be obligated, pursuant to the Declaration of Trust, to
(i) provide indemnity or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Securities
Certificates and the issuance of Preferred Securities Certificates and (ii)
provide indemnity or security in connection with requests of or directions to
the Property Trustee to exercise its rights and remedies under the Declaration
of Trust. Under Delaware law and the Declaration of Trust, the issuance of the
Preferred Securities is not subject to preemptive rights.
In rendering such opinion, such counsel may rely as to certain matters
on information obtained from public officials, officers of the Offerors and
other sources believed by them to be responsible. Further, such counsel may
state that they do not express an opinion as to any laws other than the laws of
the State of Delaware. Such counsel may also include such other exceptions and
qualifications as may be mutually agreed upon by such counsel and the Manager.
D-2
EXHIBIT E
---------
The opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, as counsel to the Property
Trustee, the Delaware Trustee, the Guarantee Trustee and the Debenture Trustee,
to be delivered pursuant to Article IV, paragraph (f) of this Agreement shall be
to the effect that:
1. Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation with trust powers under the
laws of the State of Delaware.
2. The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee Agreement, and
has taken all necessary corporate action to authorize the execution, delivery
and performance by it of the Guarantee.
4. The Property Trustee has the requisite power and authority to
execute and deliver the Declaration of Trust, and has taken all necessary
corporate action to authorize the execution and delivery of the Declaration of
Trust.
5. The Delaware Trustee has the requisite power and authority to
execute and deliver the Declaration of Trust, and has taken all necessary
corporate action to authorize the execution and delivery of the Declaration of
Trust.
6. Each of the Indenture, the Guarantee Agreement and the
Declaration of Trust has been duly executed and delivered by the Debenture
Trustee, the Guarantee Trustee, and the Property Trustee and Delaware Trustee,
respectively, and constitutes a legal, valid and binding obligation of the
Debenture Trustee, the Guarantee Trustee, and the Property Trustee and Delaware
Trustee, respectively, enforceable against the Debenture Trustee, the Guarantee
Trustee, and the Property Trustee and Delaware Trustee, respectively, in
accordance with its respective terms, except that certain payment obligations
may be enforceable solely against the assets of the Corporation or
E-1
the Issuer Trust, as applicable, and except that such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws applicable to Delaware banking
corporations affecting the enforcement of creditors' rights generally, and by
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
7. The Subordinated Debentures delivered on the date hereof have
been duly authenticated by the Debenture Trustee in accordance with the terms of
the Indenture.
In rendering such opinion, such counsel may rely as to certain matters
on information obtained from public officials, officers of the Offerors, the
Debenture Trustee, Guarantee Trustee, Property Trustee and Delaware Trustee and
other sources believed by them to be responsible. Further, such counsel may
state that they do not express an opinion as to any laws other than the laws of
the State of Delaware. Such counsel may also include such other exceptions and
qualifications as may be mutually agreed upon by such counsel and the Manager.
E-2
EXHIBIT F
---------
The opinion of White & Case, as counsel to the Underwriters, to be
delivered pursuant to Article IV, paragraph (g) of this Agreement shall be to
the effect that:
1. The Corporation has been duly incorporated and is validly
existing in good standing under the laws of the State of New York.
2. The Indenture has been duly authorized, executed and delivered by
the Corporation; the Indenture has been duly qualified under the Trust Indenture
Act of 1939; the Subordinated Debentures have been duly authorized, executed,
authenticated, issued and delivered; and the Indenture and the Subordinated
Debentures are valid, legal and binding obligations of the Corporation
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
3. The Guarantee Agreement and the Declaration of Trust have been
duly authorized, executed and delivered by the Corporation; the Guarantee
Agreement and the Declaration of Trust have been duly qualified under the Trust
Indenture Act of 1939; the Guarantee Agreement is a valid, legal and binding
obligation of the Corporation enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (regardless of whether the
issue of enforceability is considered in a proceeding in equity or at law).
4. This Agreement has been duly authorized, executed and delivered
by the Issuer Trust and the Corporation.
5. The Indenture, the Subordinated Debentures, the Guarantee
Agreement, the Declaration and the Preferred Securities conform in all material
respects to the statements relating thereto contained in the Offering Circular.
F-1
6. The Registration Statement has become effective, and to the best
of such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for that purpose have
been instituted or are pending or are threatened under the Securities Act.
Based upon such counsel's participation in the preparation of the
Registration Statement and Prospectus, but without independent check or
verification, and subject to certain other qualifications, (i) in such counsel's
opinion, each of the Registration Statement at the time of effectiveness and the
Prospectus as of its date (except for the financial statements and other
financial and statistical data included or incorporated by reference therein or
omitted therefrom, and other than the trustees' respective Statements of
Eligibility on Form T-1, as to which such counsel need express no opinion)
appears on its face to comply as to form in all material respects with the
require ments of the Securities Act and the rules and regulations of the
Commission thereunder; (ii) such counsel does not know of any legal or
governmental proceeding to which the Company is a party or to which it or its
properties are subject which is required to be described in the Registration
Statement which is not described as required, or of any contract or document of
a character required to be described or summarized in the Registration Statement
or to be filed as an exhibit to the Registration Statement which is not so
described, summarized or filed, and (iii) nothing has come to the attention of
such counsel which would cause such counsel to believe that (a) as of its
effective date the Registration Statement (other than the financial statements
and related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, and other than the
trustees' respective Statements of Eligibility on Form T-1, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (b) as of its date the
Prospectus, as amended or supplemented, (other than the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to which we express
no belief) contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (c) as of the date hereof either the Registration
Statement or the Prospectus, as amended or supplemented (other than the
financial statements
F-2
and related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, and other than the
trustees' respective Statements of Eligibility on Form T-1, as to which such
counsel need express no belief), contains an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
In rendering such opinion, such counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by them or by
the Offerors as to laws of any jurisdiction other than the United States or the
State of New York, provided that (i) such reliance is expressly authorized by
each opinion so relied upon and a copy of each such opinion is delivered to the
Manager, and (ii) such counsel shall state in their opinion that they believe
that they and the Manager are justified in relying thereon. Insofar as such
opinions involve factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Corporation, its
subsidiaries and the Issuer Trust and certificates of public officials. Such
counsel may also include such other exceptions and qualifications as may be
mutually agreed upon by such counsel and the Manager.
F-3
FORM OF UNDERWRITING AGREEMENT
Bankers Trust New York Corporation,
One Bankers Trust Plaza,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
BT Preferred Capital Trust [I/II/III/IV],
c/o Bankers Trust New York Corporation,
One Bankers Trust Plaza,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Dear Sirs:
We [, as [sole] Underwriter[s]] [, as representative[s] of the several
Underwriters (the "Manager[s]")], understand that Bankers Trust New York
Corporation, a New York corporation (the "Corporation"), and BT Preferred
Capital Trust [I/II/III/IV], a statutory business trust created under the laws
of Delaware (the "Issuer Trust"), propose to offer and sell, on the terms and
subject to the conditions set forth herein, ______________ of the __% Preferred
Securities, Series __ (Liquidation Amount $____ per Preferred Security") (the
"Preferred Securities") of the Issuer Trust, [to [us] [the Underwriters named in
Schedule I hereto (the "Underwriters")]. The terms of the Preferred Securities
are set forth in the Registration Statement and Basic Prospectus referred to in
the provisions incorporated herein by reference, as supplemented by a Prospectus
Supplement dated ___________ ___, 19__.
All the provisions contained in the document entitled Bankers Trust
New York Corporation-BT Preferred Capital Trust I, II, III and IV Preferred
Securities Underwriting Agreement Standard Provisions (January 1997) (including
the definition therein of certain terms), a copy of which you have previously
received, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein.
Subject to the terms and conditions set forth herein or incorporated
by reference herein, the Issuer Trust hereby agrees to sell and [we hereby
agree] [each of the Underwriters hereby agrees, severally and not jointly] to
purchase [the Preferred Securities] [the number of Preferred Securities set
forth opposite the name of such Underwriter in Schedule I hereto] at a purchase
price of ____$ of their
-2-
liquidation amount, plus accrued distributions, if any, from the date of
original issuance to the date of payment and delivery.
We will pay for the Offered Securities upon delivery thereof at the
offices of the Corporation, One Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M. (New York City time) on ________, __ 19__ or
at such other time, not later than, ________, __ 19__, as shall be designated by
us, such time being referred to herein as the "Closing Date".
[The certificates for the Preferred Securities shall be registered in
such names and in such denominations as we shall request and shall be available
for checking and packaging at the above office of the Corporation at least 24
hours prior to the Closing Date.]
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the
-3-
space set forth below and by returning the signed copy to us.
Very truly yours,
[UNDERWRITER[S]]
[MANAGER[S],]
[As representatives of the
Several Underwriters named in
Schedule I hereto]
By:____________________________
Title:
Accepted:
BANKERS TRUST NEW YORK CORPORATION
By:___________________________________
Name:
Title:
BT PREFERRED CAPITAL TRUST [I/II/III/IV]
By: BANKERS TRUST NEW YORK CORPORATION,
as Depositor
By:___________________________________
Name:
Title:
-4-
Schedule I
Number of
Name of Underwriter Preferred Securities
------------------- --------------------
