EXHIBIT 4.5
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BANKERS TRUST NEW YORK CORPORATION
TO
THE CHASE MANHATTAN BANK (formerly The Chase
Manhattan Bank (National Association)), TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE
Dated as of October 1, 1997
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Supplemental to Indenture,
dated as of November 1, 1991
as amended by
First Supplemental Indenture,
dated as of September 1, 1993
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SECOND SUPPLEMENTAL INDENTURE, dated as of October 1, 1997, between BANKERS
TRUST NEW YORK CORPORATION, a corporation duly organized and existing under the
laws of the State of New York (the "Company"), and THE CHASE MANHATTAN BANK
(formerly The Chase Manhattan Bank (National Association)), a banking
corporation duly organized and existing under the laws of the State of New
York, as Trustee under the Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee are parties to the Indenture, dated as
of November 1, 1991, as previously supplemented by the First Supplemental
Indenture thereto, dated as of September 1, 1993 (as so supplemented, the
"Indenture"), pursuant to which the Company has issued certain Securities that
remain outstanding as of the date hereof; and
WHEREAS, Section 901 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may enter into a supplemental
indenture without the consent of any Holder to add to, change or eliminate any
of the provisions of the Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (i) shall not
apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor modify
the rights of the Holder of any such Security with respect to such provision, or
(ii) shall become effective only when there is no such Security Outstanding; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and
by this Second Supplemental Indenture to amend and supplement the Indenture in
certain respects, which amendment and supplement shall not apply to any
Securities created prior to the execution of this Second Supplemental Indenture;
and
WHEREAS, the Company has duly authorized the execution and delivery of this
Second Supplemental Indenture by a Board Resolution, as defined in the
Indenture, and all things necessary to make this Second Supplemental Indenture a
valid agreement of the Company, in accordance with the terms of the Indenture,
have been done;
NOW, THEREFORE, the Company and the Trustee hereby agree as follows:
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Article I
AMENDMENTS
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Section 1.01. Amendments to Section 101 of Indenture.
(a) Section 101 of the Indenture is hereby amended by replacing the words
"its Vice Chairman of the Board," in the definition of "Company Request" or
"Company Order" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
(b) Section 101 of the Indenture is hereby further amended by replacing the
words "a Vice Chairman of the Board," in the definition of "Officers'
Certificate" with the words "its Senior Vice Chairman, one of its Vice
Chairmen,".
(c) Section 101 of the Indenture is hereby further amended by inserting the
words "in Section 114 or, if different," in the definition of "Outstanding "
immediately following the words "the U.S. dollar equivalent, determined in the
manner provided" therein.
Section 1.02. Amendments to Section 201 of Indenture. Section 201 of the
Indenture is hereby amended by adding the following at the end of the first
paragraph thereof:
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action
shall be delivered at or before the time of issuance of the first Security
of such series.
Section 1.03. Amendments to Section 301 of Indenture.
(a) Section 301(5) of the Indenture is hereby amended by inserting the
words "(or the formula pursuant to which such rate or rates shall be
determined)" after the word "rates" the first time such word appears in such
section:
(b) The penultimate paragraph of Section 301 of the Indenture is hereby
amended by adding the following at the end thereof:
All Securities of any one series need not be issued at one time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
(c) The final paragraph of Section 301 of the Indenture is hereby amended
by adding the following at the end thereof:
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If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action
shall be delivered at or before the time of issuance of the first Security
of such series.
Section 1.04. Amendments to Section 303 of Indenture.
(a) The first paragraph of Section 303 of the Indenture is hereby amended
by replacing the words "its Vice Chairman of the Board," with the words ", its
Senior Vice Chairman, one of its Vice Chairmen".
(b) The third paragraph of Section 303 of the Indenture is hereby amended
by inserting the following after the first sentence thereof:
If all of the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities and determining the terms
of particular Securities of such series, such as interest rate, maturity
date, date of issuance and date from which interest shall accrue, and for
instructing the Trustee to authenticate and deliver such Securities
(including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents,
promptly confirmed in writing).
(c) Subparagraph (a) of the third paragraph of Section 303 of the Indenture
is hereby amended by inserting the words "or, if all the Securities of such
series are not to be issued at one time, will be" following the words "have
been" therein.
Section 1.05. Amendments to Section 305 of Indenture.
(a) The seventh paragraph of Section 305 of the Indenture is hereby amended
and restated as follows:
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of
that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of any such Securities selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
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(b) The eighth paragraph of Section 305 of the Indenture is hereby amended
by inserting the words "at a time when the Depository is required to be so
registered in order to act as such depository" after the words "as amended," and
before the words "(ii) the Company" in the first sentence thereof.
(c) Section 305 of the Indenture is hereby further amended by adding the
following paragraph at the end thereof:
Except as provided in the immediately preceding paragraph and as
otherwise provided as contemplated by Section 301 with respect to any
series of Securities evidenced in whole or in part by a Book-Entry
Security, (i) a Book-Entry Security may not be transferred except as a
whole by the Depository with respect to such Security to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository and (ii) the Depository may not sell, assign,
transfer or otherwise convey any beneficial interest in a Book-Entry
Security evidencing all or part of the Securities of such Series unless
such beneficial interest is in an amount equal to an authorized
denomination for Securities of such series.
Section 1.06. Amendments to Section 501 of Indenture. Subsections (e) and
(f) of Section 501 of the Indenture are hereby amended by replacing the words
"the Federal Bankruptcy Act" each time such words appear with the words "Title
11 of the United States Code".
Article II
MISCELLANEOUS
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Section 2.01. Defined Terms. For all purposes of this Second Supplemental
Indenture, except as otherwise stated herein, capitalized terms used but not
defined in this Second Supplemental Indenture shall have the respective meanings
assigned to them in the Indenture.
Section 2.02. Trustee's Rights, Duties and Immunities. All of the
provisions of the Indenture with respect to the rights, duties and immunities of
the Trustee shall be applicable in respect hereof as fully and with like effect
as if set forth herein in full.
Section 2.03. Application of Amendments. All amendments to the Indenture
made hereby shall have effect only with respect to the Securities of any series
created on or after the date hereof, and not with respect to the Securities of
any series created prior to the date hereof.
Section 2.04. Recitals. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
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SECTION 2.05. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.06. Counterparts. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
Section 2.07. Ratification and Confirmation. As amended and modified by
this Second Supplemental Indenture, the Indenture is in all respects ratified
and confirmed and the Indenture and this Second Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
BANKERS TRUST NEW YORK CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
ATTEST:
/s/ Xxxxxx X. Xxxxxx, Xx.
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THE CHASE MANHATTAN BANK (formerly The
Chase Manhattan Bank (National Association)),
as Trustee
By: /s/ Sheik Wiltshire
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Name: Sheik Wiltshire
Title: Second Vice President
ATTEST:
/s/ Xxxxxx Xxxxxxxx
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STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the 1st day of October, 1997, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that s/he
is Vice President of Bankers Trust New York Corporation, one of the corporations
described in and which executed the foregoing instrument; that s/he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that s/he signed her/his name thereto by like authority.
[Notarial Seal] /s/ Xxxxxxx X. Xxxxxxx
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STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the 30th day of September, 1997, before me personally came Sheik
Wiltshire to me known, who, being by me duly sworn, did depose and say that he
is Second Vice President of The Chase Manhattan Bank, one of the corporations
described in and which executed the foregoing instrument; that s/he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that s/he signed her/his name thereto by like authority.
[Notarial Seal] /s/ Xxxx X. Xxxx
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