--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT 25.1
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 bank) Identification no.)
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)
------------------------
MIRANT AMERICAS GENERATION, INC
(Exact name of obligor as specified in its charter)
DELAWARE 00-0000000
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
0000 XXXXXXXXX XXXXXX XXXX
XXXXXXX, XXXXXXX 00000-0000
000-000-0000
(Address of principal executive offices)
SENIOR NOTES
(Title of indenture securities)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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. A copy of each 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, 2000. 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 day of , 2001.
BANKERS TRUST COMPANY
By: /s/ XXXXX XXXXXXX
----------------------------------------
Xxxxx Xxxxxxx
ASSOCIATE
3
STATE OF NEW YORK,
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
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 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.
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 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 extent 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 be payable on such shares if all
dividends were paid in full, provided, however, that any 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.
(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 first 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 rate 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 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 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% or 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 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 of 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 addresses 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 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 Xxxx
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 than 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.
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 )
) ss:
County of New York )
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
STATE OF NEW YORK,
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
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.
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
STATE OF NEW YORK,
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
----------------------------------------
P. Xxxxxxx Xxxxxx
DEPUTY SUPERINTENDENT OF BANKS
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.
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
BY-LAWS
JUNE 22, 1999
BANKERS TRUST CORPORATION
(INCORPORATED UNDER THE NEW YORK BUSINESS CORPORATION LAW)
BANKERS TRUST CORPORATION
------------------------
BY-LAWS
------------------------
ARTICLE I
SHAREHOLDERS
SECTION 1.01 ANNUAL MEETINGS. The annual meetings of shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday in April of
each year, if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at such hour as shall be designated by the Board of
Directors. If no other hour shall be so designated such meeting shall be held at
3 P.M.
SECTION 1.02 SPECIAL MEETINGS. Special meetings of the shareholders, except
those regulated otherwise by statute, may be called at any time by the Board of
Directors, or by any person or committee expressly so authorized by the Board of
Directors and by no other person or persons.
SECTION 1.03 PLACE OF MEETINGS. Meetings of shareholders shall be held at
such place within or without the State of New York as shall be determined from
time to time by the Board of Directors or, in the case of special meetings, by
such person or persons as may be authorized to call a meeting. The place in
which each meeting is to be held shall be specified in the notice of such
meeting.
SECTION 1.04 NOTICE OF MEETINGS. A copy of the written notice of the place,
date and hour of each meeting of shareholders shall be given personally or by
mail, not less than ten nor more than fifty days before the date of the meeting,
to each shareholder entitled to vote at such meeting. Notice of a special
meeting shall indicate that it is being issued by or at the direction of the
person or persons calling the meeting and shall also state the purpose or
purposes for which the meeting is called. Notice of any meeting at which is
proposed to take action which would entitle shareholders to receive payment for
their shares pursuant to statutory provisions must include a statement of that
purpose and to that effect. If mailed, such notices of the annual and each
special meeting are given when deposited in the United States mail, postage
prepaid, directed to the shareholder at his address as it appears in the record
of shareholders unless he shall have filed with the Secretary of the corporation
a written request that notices intended for him shall be mailed to some other
address, in which case it shall be directed to him at such other address.
SECTION 1.05 RECORD DATE. For the purpose of determining the shareholders
entitled to notice of or to vote any meeting of shareholders or any adjournment
thereof, or to express consent to or dissent from any proposal without a
meeting, or for the purpose of determining shareholders entitled to receive
payment of any dividend or the allotment of any rights, or for the purpose of
any other action, the Board of Directors may fix, in advance, a date as the
record date for any such determination of shareholders. Such date shall not be
more than fifty nor less than ten days before the date of such meeting, nor more
than fifty days prior to any other action.
SECTION 1.06 QUORUM. The presence, in person or by proxy, of the holders of
a majority of the shares entitled to vote thereat shall constitute a quorum at a
meeting of shareholders for the transaction of business, except as otherwise
provided by statute, by the Certificate of Incorporation or by the By-Laws. The
shareholders present in person or by proxy and entitled to vote at any meeting,
despite the absence of a quorum, shall have power to adjourn the meeting from
time to time, to a designated time and place, without notice other than by
announcement at the meeting, and at any adjourned meeting any business may be
transacted that might have been transacted on the original date of the meeting.
However, if after the adjournment the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice.
SECTION 1.07 NOTICE OF SHAREHOLDER BUSINESS AT ANNUAL MEETING. At an annual
meeting of shareholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the corporation who complies with the
notice procedures set forth in this Section 1.07. For business to be properly
brought before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation not less than thirty days nor
more than fifty days prior to the meeting; PROVIDED, HOWEVER, that in the event
that less than forty days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the shareholder to be timely
must be received not later than the close of business on the tenth day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made. A shareholder's notice to the Secretary shall
set forth as to each matter the shareholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the shareholder proposing such business, (c) the class and number of shares of
the corporation which are beneficially owned by the shareholder and (d) any
material interest of the shareholder in such business. Notwithstanding anything
in these By-Laws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 1.07
and Section 2.03. The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 1.07
and Section 2.03, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01 NUMBER AND QUALIFICATIONS. The business of the corporation
shall be managed by its Board of Directors. The number of directors constituting
the entire Board of Directors shall be not less than seven nor more than
fifteen, as shall be fixed from time to time by vote of a majority of the entire
Board of Directors. Each director shall be at least 21 years of age. Directors
need not be shareholders. 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 2.02 ELECTION. At each annual meeting of shareholders, directors
shall be elected by a plurality of the votes to hold office until the next
annual meeting. Subject to the provisions of the statute, of the Certificate of
Incorporation and of the By-Laws, each director shall hold office until the
expiration of the term for which elected, and until his successor has been
elected and qualified.
SECTION 2.03 NOMINATION AND NOTIFICATION OF NOMINATION. Subject to the
rights of holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation, nominations for the election
of directors may be made by the Board of Directors or to any committee appointed
by the Board of Directors or by any shareholder entitled to vote in the election
of directors generally. However, any shareholder entitled to vote in the
election of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such shareholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the corporation
not later than (i) with respect to an election to be held at an annual meeting
of shareholders ninety days in advance of such meeting, and (ii) with respect to
an election to be held at a special meeting of shareholders for the election of
directors, the close of business on the seventh day following the date on which
notice of such meeting is first given to shareholders. Each such notice shall
set forth: (a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the shareholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the
person or persons specified in the notice; (c) a description of all arrangements
or understandings between the shareholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (d) such other information
regarding each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or intended
to be nominated, by the Board of Directors; and (e) the consent of each nominee
to serve as a director of the corporation if so elected. At the request of the
Board of Directors, any person nominated by the Board of Directors for election
as a director shall furnish to the Secretary of the corporation that information
required to be set forth in a shareholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in the
By-Laws. The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these By-Laws, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
SECTION 2.04 REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such places and times as may be fixed from time to
time by resolution of the Board and a regular meeting for the purpose of
organization and transaction of other business shall be held each year after the
adjournment of the annual meeting of shareholders.
SECTION 2.05 SPECIAL MEETINGS. The Chairman of the Board, the Chief
Executive Officer, the President, the Senior Vice Chairman or any Vice Chairman
may, and at the request of three directors shall, call a special meeting of the
Board of Directors, two days' notice of which shall be given in person or by
mail, telegraph, radio, telephone or cable. Notice of a special meeting need not
be given to any director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him.
SECTION 2.06 PLACE OF MEETING. The directors may hold their meetings, have
one or more offices, and keep the books of the corporation (except as may be
provided by law) at any place, either within or without the State of New York,
as they may from time to time determine.
SECTION 2.07 QUORUM AND VOTE. At all meetings of the Board of Directors the
presence of one-third of the entire Board, but not less than two directors,
shall constitute a quorum for the transaction of business. Any one or more
members of the Board of Directors or of any committee thereof may participate in
a meeting of the Board of Directors or a 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. The vote of a majority of the directors present at the time of the
vote, if a quorum is present at such time, shall be the act of the Board of
Directors, except as may be otherwise provided by statute or the By-Laws.
SECTION 2.08 VACANCIES. Newly created directorships resulting from increase
in the number of directors and vacancies in the Board of Directors, whether
caused by resignation, death, removal or otherwise, may be filled by vote of a
majority of the directors then in office, although less than a quorum exists.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 3.01 DESIGNATION AND AUTHORITY. The Board of Directors, by
resolution adopted by a majority of the entire Board, may designate from among
its members an Executive Committee and other committees, each consisting of
three or more directors. Each such committee, to the extent
provided in the resolution or the By-Laws, shall have all the authority of the
Board, except that no such committee shall have authority as to:
(i) the submission to shareholders of any action as to which
shareholders' authorization is required by law.
(ii) the filling of vacancies in the Board of Directors or any
committee.
(iii) the fixing of compensation of directors for serving on the Board or
on any committee.
(iv) the amendment or appeal of the By-Laws, or the adoption of new
By-Laws.
(v) the amendment or repeal of any resolution of the Board which by its
terms shall not be so amendable or repealable.
The Board may designate one or more directors as alternate members of any
such committee, who may replace any absent member or members at any meeting of
such committee. Each such committee shall serve at the pleasure of the Board of
Directors.
SECTION 3.02 PROCEDURE. Except as may be otherwise provided by statute, by
the By-Laws or by resolution of the Board of Directors, each committee may make
rules for the call and conduct of its meetings. Each committee shall keep a
record of its acts and proceedings and shall report the same from time to time
to the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 4.01 TITLES AND GENERAL. The Board of Directors shall elect from
among their number a Chairman of the Board and a Chief Executive Officer, and
may also elect a President, a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Vice Presidents, one
or more Principals, one or more Vice Presidents, a Secretary, a Controller, a
Treasurer, a General Counsel, a General Auditor, and a General Credit Auditor,
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 4.02 CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside
at all meetings of the shareholders and of the Board of Directors. Subject to
the Board of Directors, he shall exercise all the powers and perform all the
duties usual to such office and shall have such other powers as may be
prescribed by the Board of Directors or the Executive Committee or vested in him
by the By-Laws.
SECTION 4.03 CHIEF EXECUTIVE OFFICER. The Board of Directors shall designate
the Chief Executive Officer of the corporation, which person may also hold the
additional title of Chairman of the Board, President, Senior Vice Chairman or
Vice Chairman. Subject to the Board of Directors, he shall exercise all the
powers and perform all the duties usual to such office and shall have such other
powers as may be prescribed by the Board of Directors or the Executive Committee
or vested in him by the By-Laws.
SECTION 4.04 CHAIRMAN OF THE BOARD, PRESIDENT, SENIOR VICE CHAIRMAN, VICE
CHAIRMEN, EXECUTIVE VICE PRESIDENTS, SENIOR VICE PRESIDENTS, PRINCIPALS AND VICE
PRESIDENTS. The Chairman of the Board or, in his absence or incapacity the
President or, in his absence or incapacity, the Senior Vice Chairman, the Vice
Chairmen, the Executive Vice Presidents, or in their absence, the Senior Vice
Presidents, in the order established by the Board of Directors shall, in the
absence or incapacity of the Chief Executive
Officer perform the duties of the Chief Executive Officer. The President, the
Senior Vice Chairman, the Vice Chairmen, the Executive Vice Presidents, the
Senior Vice Presidents, the Principals, and the Vice Presidents shall also
perform such other duties and have such other powers as may be prescribed or
assigned to them, respectively, from time to time by the Board of Directors, the
Executive Committee, the Chief Executive Officer, or the By-Laws.
SECTION 4.05 CONTROLLER. The Controller shall perform all the duties
customary to that office and except as may be otherwise provided by the Board of
Directors shall have the general supervision of the books of account of the
corporation and shall also perform such other duties and have such powers as may
be prescribed or assigned to him from time to time by the Board of Directors,
the Executive Committee, the Chief Executive Officer, or the By-Laws.
SECTION 4.06 SECRETARY. The Secretary shall keep the minutes of the meetings
of the Board of Directors and of the shareholders and shall have the custody of
the seal of the corporation. He shall perform all other duties usual to that
office, and shall also perform such other duties and have such powers as may be
prescribed or assigned to him from time to time by the Board of Directors, the
Executive Committee, the Chairman of the Board, the Chief Executive Officer, or
the By-Laws.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 5.01 The corporation shall, to the fullest extent permitted by
Section 721 of the New York Business Corporation 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 corporation 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
corporation is serving or served in any capacity at the request of the
corporation by reason of the fact that he, his testator or intestate, is or was
a director or officer of the corporation, 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 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (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 5.03 The corporation shall, from time to time, reimburse or advance
to any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, 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 5.04 Any director or officer of the corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation, or (ii) any employee benefit plan
of the corporation or any corporation referred to in clause (i), in any capacity
shall be deemed to be doing so at the request of the corporation. 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
corporation, evidenced by a written communication signed by the Chairman of the
Board, the Chief Executive Officer, the President, the Senior Vice Chairman or
any Vice Chairman, 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 5.05 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 the
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 5.06 The right to be indemnified or to the reimbursement or
advancement of expenses 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
corporation 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 5.07 If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the corporation
within thirty days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation 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. Neither the failure of the corporation (including its Board of Directors,
independent legal counsel, or its shareholders) 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
circumstances, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) 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 5.08 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 5.01 shall be entitled to indemnification only as provided
in Sections 5.01 and 5.03, notwithstanding any provision of the New York
Business Corporation Law to the contrary.
ARTICLE VI
SEAL
SECTION 6.01 CORPORATE SEAL. The corporate seal shall contain the name of
the corporation and the year and state of its incorporation. The seal may be
altered from time to time at the discretion of the Board of Directors.
ARTICLE VII
SHARE CERTIFICATES
SECTION 7.01 FORM. The certificates for shares of the corporation shall be
in such form as shall be approved by the Board of Directors and shall be signed
by the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Vice Chairman or any Vice Chairman
and the Secretary or an Assistant Secretary, and shall be sealed with the seal
of the corporation or a facsimile thereof. The signatures of the officers upon
the certificate may be facsimiles if the certificate is countersigned by a
transfer agent or registered by a registrar other than the corporation itself or
its employees.
ARTICLE VIII
CHECKS
SECTION 8.01 SIGNATURES. All checks, drafts and other orders for the payment
of money shall be signed by such officer or officers or agent or agents as the
Board of Directors may designate from time to time.
ARTICLE IX
AMENDMENT
SECTION 9.01 AMENDMENT OF BY-LAWS. The By-Laws may be amended, repealed or
added to by vote of the holders of the shares at the time entitled to vote in
the election of any directors. The Board of Directors may also amend, repeal or
add to the By-Laws, but any By-Laws adopted by the Board of Directors may be
amended or repealed by the shareholders entitled to vote thereon as provided
herein. If any By-Law regulating an impending election of directors is adopted,
amended or repealed by the Board, there shall be set forth in the notice of the
next meeting of shareholders for the election of directors the By-Laws so
adopted, amended or repealed, together with concise statement of the changes
made.
ARTICLE X
SECTION 10.01 CONSTRUCTION. The masculine gender, when appearing in these
By-Laws, shall be deemed to include the feminine gender.
I, Xxxxx Xxxxxxx, Associate 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.
/s/ XXXXX XXXXXXX
------------------------------------------------
Xxxxx Xxxxxxx
ASSOCIATE
DATED: May , 2001
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 2000
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 and coin(1)............ 0081 1,419,000 1.a.
b. Interest-bearing balances(2)...... 0071 1,423,000 1.b.
2. Securities:
a. Held-to-maturity securities (from
Schedule RC-B, column A)........ 1754 0 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column
D).............................. 1773 354,000 2.b.
3. Federal funds sold and securities
purchased under agreements to
resell.................................. 1350 8,525,000 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C)..... RCFD 2122 22,038,000 4.a.
b. LESS: Allowance for loan and lease
losses.......................... RCFD 3123 458,000 4.b.
c. LESS: Allocated transfer risk
reserve......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned
income, allowance, and reserve
(item 4.a minus 4.b and 4.c).... 2125 15,892,000 4.d.
5. Trading Assets (from schedule RC-D)..... 3545 12,779,000 5.
6. Premises and fixed assets (including
capitalized leases)..................... 2145 600,000 6.
7. Other real estate owned (from
Schedule RC-M).......................... 2150 103,000 7.
8. Investments in unconsolidated
subsidiaries and associated companies
(from Schedule RC-M).................... 2130 51,000 8.
9. Customers' liability to this bank on
acceptances outstanding................. 2155 254,000 9.
10. Intangible assets (from
Schedule RC-M).......................... 2143 70,000 10.
11. Other assets (from Schedule RC-F)....... 2160 2,854,000 11.
12. Total assets (sum of items 1 through
11)..................................... 2170 44,324,000 12.
--------- ----------
------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
SCHEDULE RC--CONTINUED
DOLLAR AMOUNTS IN THOUSANDS
LIABILITIES
13. Deposits:
In domestic offices (sum of totals of columns A and C from
a. Schedule RC-E,
part I).......................................................... RCON 2200 11,415,000 13.a.
(1) Noninterest-bearing(1)...................................... RCON 6631 3,195,000 13.a.(1)
(2) Interest-bearing............................................ RCON 6636 8,220,000 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E part II)..................................... RCFN 2200 7,744,000 13.b.
(1) Noninterest-bearing......................................... RCFN 6631 1,044,000 13.b.(1)
(2) Interest-bearing............................................ RCFN 6636 6,700,000 13.b.(2)
14. Federal funds purchased and securities sold under agreements to RCFD 2800 8,319,000 14.
repurchase
15. a. Demand notes issued to the U.S. Treasury......................... RCON 2840 439,000 15.a.
b. Trading liabilities (from Schedule RC-D)......................... RCFD 3548 1,814,000 15.b.
Other borrowed money (includes mortgage indebtedness and obligations
16. under
capitalized leases):
a. With a remaining maturity of one year or less.................... RCFD 2332 2,590,000 16.a.
b. With a remaining maturity of more than one year through three A547 842,000 16.b.
years............................................................
c. With a remaining maturity of more than three years............... A548 558,000 16.c
17. Not Applicable. 17.
18. Bank's liability on acceptances executed and outstanding.............. RCFD 2920 254,000 18.
19. Subordinated notes and debentures(2).................................. RCFD 3200 284,000 19.
20. Other liabilities (from Schedule RC-G)................................ RCFD 2930 3,467,000 20.
21. Total liabilities (sum of items 13 through 20)........................ RCFD 2948 37,726,000 21.
22. Not Applicable 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus......................... RCFD 3638 1,500,000 23.
24. Common stock.......................................................... RCFD 3230 2,127,000 24.
25. Surplus (exclude all surplus related to preferred stock).............. RCFD 3839 584,000 25.
26. a. Undivided profits and capital reserves........................... RCFD 3632 2,468,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale RCFD 8434 5,000 26.b.
securities.......................................................
c. Accumulated net gains (losses) on cash flow xxxxxx............... RCFD 4336 0 26c.
27. Cumulative foreign currency translation adjustments................... RCFD 3284 (86,000) 27.
28. Total equity capital (sum of items 23 through 27)..................... RCFD 3210 6,598,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28)......... RCFD 3300 44,324,000 29.
--------- ----------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of Number
auditing work performed for the bank by independent external --------
auditors as of any date during 1999......................... RCFD 6724 N/A M.1
1 = Independent audit of the bank conducted in 5 =
accordance with generally accepted auditing
standards by a certified public accounting
firm which submits a report on the bank
2 = Independent audit of the bank's parent 6 =
holding company conducted in accordance with
generally accepted auditing standards by a
certified public accounting firm which
submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted 7 =
in accordance with generally accepted
auditing standards by a certified public
accounting firm (may be required by state
chartering authority)
4 = Directors' examination of the bank performed 8 =
by other external auditors (may be required
by state chartering authority)
1 Review of the bank's financial statements by
external auditors
2 Compilation of the bank's financial
statements by external auditors
3 Other audit procedures (excluding tax
preparation work)
4 No external audit work
------------------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
