-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, GgrBPgz2Q3oZgqKnoWRJwvr6CD8kpN1B4R6Tfp3MFq+v9fPRhAsmKTJSW1/aprbc SfsAGfxFGqvTj/2r/7Bdrg== 0000950130-94-000728.txt : 19940510 0000950130-94-000728.hdr.sgml : 19940510 ACCESSION NUMBER: 0000950130-94-000728 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19940506 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BANKERS TRUST NEW YORK CORP CENTRAL INDEX KEY: 0000009749 STANDARD INDUSTRIAL CLASSIFICATION: 6022 IRS NUMBER: 136180473 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-51615 FILM NUMBER: 94526537 BUSINESS ADDRESS: STREET 1: 280 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2122502500 MAIL ADDRESS: STREET 1: 280 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: BT NEW YORK CORP DATE OF NAME CHANGE: 19671107 S-3/A 1 PRE-EFFECTIVE AMENDMENT As filed with the Securities and Exchange Commission on May 6, 1994 REGISTRATION NO. 33-51615 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 --------------- PRE-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- BANKERS TRUST NEW YORK CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) NEW YORK (STATE OR OTHER 13-6180473 (I.R.S. EMPLOYER JURISDICTION OF INCORPORATION OR IDENTIFICATION NUMBER) ORGANIZATION) 280 PARK AVENUE NEW YORK, NEW YORK 10017 (212) 250-2500 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) GORDON S. CALDER, JR., ESQ. JAMES J. BAECHLE, ESQ. BANKERS TRUST NEW YORK CORPORATION 130 LIBERTY STREET NEW YORK, NEW YORK 10006 (212) 250-2500 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) WITH A COPY TO: MICHAEL M. WISEMAN, ESQ. SULLIVAN & CROMWELL 125 BROAD STREET NEW YORK, NEW YORK 10004 --------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this registration statement. IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. [_] IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF 1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. [X] --------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION PROSPECTUS ISSUE DATE: MAY 6, 1994 - ---------- U.S.$500,000,000 LOGO BANKERS TRUST NEW YORK CORPORATION DEBT SECURITIES AND WARRANTS Bankers Trust New York Corporation (the "Corporation") may offer from time to time up to U.S.$500,000,000 aggregate public offering price (or net proceeds, in the case of debt securities issued at an original issue discount), or its equivalent (based on the applicable exchange rate at the time of offering) in such foreign currencies, or units of two or more currencies, as shall be designated by the Corporation at the time of offering, of one or more series of debt securities (the "Debt Securities"); warrants entitling the holders thereof to purchase Debt Securities or other debt obligations of the Corporation or another issuer ("Warrant Debt Securities") (the "Debt Warrants"); warrants entitling the holders thereof to receive from the Corporation, upon exercise, an amount in cash determined by reference to decreases or increases in the level of a specified stock or security index or the value of a specified stock or other debt or equity security or a portfolio of specified stocks or other debt or equity securities (which may, in each case, be based on U.S. or foreign stocks or securities or a combination thereof) (the "Index Warrants"); warrants entitling the holders thereof to receive from the Corporation, upon exercise, the cash value of the right to purchase or to sell a specified amount of one foreign currency or unit of two or more currencies for a specified amount of a different currency or unit of two or more currencies, each as shall be designated by the Corporation at the time of offering (the "Currency Warrants"); and warrants entitling the holders thereof to receive from the Corporation, upon exercise, an amount in cash determined by reference to decreases or increases in the yield or closing price of one or more specified debt instruments issued either by the United States government or by a foreign government (each, a "Debt Instrument"), in the interest rate or interest rate swap rate specified in the Prospectus Supplement relating to such warrants (each, a "Rate"), or in any specified combination of Debt Instruments and/or Rates (the "Interest Rate Warrants," and with the Debt Warrants, the Index Warrants and the Currency Warrants, the "Warrants"). The Debt Securities may be senior debt securities (the "Senior Debt Securities") or subordinated debt securities (the "Subordinated Debt Securities"). Debt Securities and Warrants (collectively, the "Offered Securities") will be offered on terms to be determined at the time of offering. Each issue of Debt Securities may vary as to aggregate principal or face amount, maturity date, public offering or purchase price, interest rate or rates, if any, and timing of payments thereof, provision for redemption, if any, any terms of conversion or exchange, currencies of denomination or currencies otherwise applicable thereto and any other terms and method of distribution. Each issue of Warrants may vary as to number, purchase price, exercise price and provisions, detachability and any other terms and method of distribution. The accompanying Prospectus Supplement (the "Prospectus Supplement") will set forth the specific terms with regard to the particular Offered Securities in respect of which this Prospectus is being delivered. The Offered Securities may be offered either separately or together as units and may be sold by the Corporation directly or through agents or dealers. In addition, the Offered Securities may be sold to or through underwriting syndicates led by one or more managing underwriters or through one or more underwriters acting alone pursuant to offering terms fixed at the time of offering. The agents, dealers or underwriters in connection with the sale of any Offered Securities will be set forth in the applicable Prospectus Supplement. The Senior Debt Securities, when issued, will rank on a parity with all other unsecured and unsubordinated indebtedness of the Corporation. The Subordinated Debt Securities, when issued, will be unsecured and subordinated as described herein under "Description of Debt Securities--Subordination of Subordinated Debt Securities." Payment of the principal of the Subordinated Debt Securities may be accelerated only in the case of certain events involving the bankruptcy, insolvency or reorganization of the Corporation. There is no right of acceleration of payment of Subordinated Debt Securities in the case of a default in the performance of any covenant of the Corporation, including the payment of principal or interest. See "Description of Debt Securities--Events of Default--Subordinated Debt Securities." ----------- THE OFFERED SECURITIES WILL NOT BE DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND WILL NOT BE INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY. ----------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is May , 1994. FOR NORTH CAROLINA INVESTORS: THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH CAROLINA HAS NOT APPROVED OR DISAPPROVED THIS OFFERING, NOR HAS THE COMMISSIONER PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT. AVAILABLE INFORMATION The Corporation is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information concerning the Corporation can be inspected and copied at the Commission's office at 450 Fifth Street, N.W., Washington, D.C. 20549, and the Commission's Regional Offices in New York (Seven World Trade Center, 13th Floor, New York, New York 10048) and Chicago (500 West Madison Street, Suite 1400, Chicago, Illinois 60661), and copies of such material can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, such material can be inspected at the offices of the New York Stock Exchange and the American Stock Exchange on which certain securities of the Corporation are listed. This Prospectus does not contain all of the information set forth in the registration statement of which this Prospectus is a part (the "Registration Statement") that the Corporation has filed with the Commission under the Securities Act of 1933, as amended (the "Securities Act"), and to which reference is hereby made. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Corporation hereby incorporates by reference in this Prospectus the following documents: (a) The Corporation's Annual Report on Form 10-K (file number 1-5920) for the year ended December 31, 1993, filed pursuant to Section 13 of the Exchange Act; and (b) The Corporation's Current Reports on Form 8-K (file number 1-5920) dated January 20, March 21 and April 19, 1994, filed pursuant to Section 13 of the Exchange Act. All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Offered Securities shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein or in any accompanying Prospectus Supplement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Any person who receives a copy of this Prospectus may obtain without charge, upon written or oral request, a copy of any of the documents incorporated by reference herein, except for the exhibits to such documents (unless such exhibits are specifically incorporated by reference herein). Written requests should be mailed to the Office of the Secretary, Bankers Trust New York Corporation, 280 Park Avenue, New York, New York 10017. Telephone requests may be directed to (212) 454-4022. ---------------- NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION AND REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION. THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO WHICH THEY RELATE OR AN OFFER TO ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER WOULD BE UNLAWFUL OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THEREOF OR, IN THE CASE OF INFORMATION INCORPORATED HEREIN OR THEREIN BY REFERENCE, THE DATE OF FILING WITH THE COMMISSION. 2 BANKERS TRUST NEW YORK CORPORATION GENERAL The Corporation is a bank holding company incorporated under the laws of the State of New York in 1965. At March 31, 1994, the Corporation had consolidated total assets of $103.7 billion. The Corporation's principal banking subsidiary is Bankers Trust Company ("Bankers"). Bankers, founded in 1903, is among the largest commercial banks in New York City and the United States, based on consolidated total assets. The Corporation concentrates its financial and managerial resources on selected markets, and services its clients by meeting their needs for financing, advisory, processing and sophisticated risk management solutions. The core organizational units of the Corporation are the Global Investment Bank, Global Markets Proprietary, Global Investment Management, Global Emerging Markets and Global Assets. Other business activities include real estate finance and principal investing. The Corporation also conducts its own proprietary operations. Among the institutional market segments served are corporations, banks, other financial institutions, governments and agencies, retirement plans, not-for-profit organizations, wealthy individuals, foundations, private companies and individual investors. Bankers originates loans and other forms of credit, accepts deposits, arranges financings and provides numerous other commercial banking and financial services. Bankers also provides a broad range of financial advisory services to its clients and engages in the proprietary trading of currencies, securities, derivatives and commodities. The Corporation is a legal entity separate and distinct from its subsidiaries, including Bankers. There are various legal limitations governing the extent to which the Corporation's banking subsidiaries may extend credit, pay dividends or otherwise supply funds to, or engage in transactions with, the Corporation or certain of its other subsidiaries. The rights of the Corporation to participate in any distribution of assets of any subsidiary, including Bankers, upon its dissolution, winding-up, liquidation or reorganization or otherwise are subject to the prior claims of creditors of that subsidiary, except to the extent that the Corporation is a creditor of that subsidiary and its claims are recognized. Claims on the Corporation's subsidiaries by creditors other than the Corporation include long-term debt and substantial obligations with respect to deposit liabilities, securities sold, not yet purchased, federal funds purchased, securities sold under repurchase agreements and commercial paper, as well as various other liabilities. The Corporation's principal executive offices are located at 280 Park Avenue, New York, New York 10017, and its telephone number is (212) 250-2500. CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
THREE MONTHS YEAR ENDED DECEMBER 31, ENDED ------------------------ MARCH 31, 1989 1990 1991 1992 1993 1994 ---- ---- ---- ---- ---- ------------ Excluding Interest on Deposits............ 0.67 1.30 1.40 1.44 1.71 1.34 Including Interest on Deposits............ 0.83 1.16 1.22 1.28 1.48 1.26
For purposes of computing these consolidated ratios, earnings represent income (loss) before income taxes, cumulative effects of accounting changes and equity in undistributed income of unconsolidated subsidiaries and affiliates, plus fixed charges excluding capitalized interest. Fixed charges represent all interest expense (ratios are presented both excluding and including interest on deposits), the portion of net rental expense that is deemed representative of the interest factor, the amortization of debt issuance expense and capitalized interest. For the year ended December 31, 1989, earnings, as defined, did not cover fixed charges, excluding and including interest on deposits, by $834 million as a result of the 1989 special provision for refinancing country credit losses of $1.6 billion. 3 USE OF PROCEEDS Unless otherwise indicated in the accompanying Prospectus Supplement, the net proceeds from the sale of the Offered Securities will be used for general corporate purposes, including investments in, or extensions of credit to, the Corporation's subsidiaries. Except as described in the accompanying Prospectus Supplement, specific allocations of the proceeds to such purposes have not been made, although management will have determined at the date of the accompanying Prospectus Supplement that funds should be borrowed at that time. The precise amount and timing of such investments in, or extensions of credit to, subsidiaries will depend on the subsidiaries' funding requirements and the availability of other funds. A substantial portion of the net proceeds from the sale of the Offered Securities may be used to hedge such Offered Securities by entering into transactions such as currency forwards, futures and options on futures, over-the-counter or exchange traded options, interest rate swaps, options on certain interest rates and other transactions relating to the currency, security, interest rate or index used to hedge the Corporation's obligations in respect of the Offered Securities. Pending such applications, such net proceeds may be temporarily invested or applied to the reduction of short-term indebtedness. DESCRIPTION OF DEBT SECURITIES Senior Debt Securities may be issued from time to time in one or more series under an Indenture, dated as of November 1, 1991, as amended by the First Supplemental Indenture, dated as of September 1, 1993 (as so supplemented, the "Senior Indenture"), between the Corporation and The Chase Manhattan Bank (National Association), as Trustee (the "Senior Trustee"). Subordinated Debt Securities may be issued from time to time in one or more series under either an Indenture, dated as of April 1, 1992, as amended by the First Supplemental Indenture, dated as of January 15, 1993 (as so supplemented, the "First Subordinated Indenture"), between the Corporation and Marine Midland Bank, as Trustee (the "First Subordinated Trustee"), or under an indenture (the "Second Subordinated Indenture," and with the First Subordinated Indenture, the "Subordinated Indentures"), to be entered into before the first issuance of securities thereunder, between the Corporation and a trustee to be named in the Prospectus Supplement applicable to the first series of Debt Securities to be issued pursuant to such Indenture (the "Second Subordinated Trustee," and with the First Subordinated Trustee, the "Subordinated Trustees"). The Senior Indenture and the Subordinated Indentures are sometimes referred to collectively as the "Indentures," and the Senior Trustee and the Subordinated Trustees are sometimes referred to collectively as the "Trustees." As used under this caption, unless the context otherwise requires, "debt securities" in lower case refers to all debt securities issued or issuable, as the case may be, under the Indentures, and "Debt Securities" refers to the Debt Securities covered by this Prospectus and any accompanying Prospectus Supplement. The statements under this caption are brief summaries of certain provisions contained in the Indentures, do not purport to be complete, and are qualified in their entirety by reference to the Indentures, including the definitions therein of certain terms, copies of which are filed or incorporated by reference as exhibits to the Registration Statement. The Debt Securities may be offered either alone or together with other Debt Securities or Warrants. GENERAL Each Indenture provides for the issuance of debt securities in one or more series, and does not limit the principal or face amount of debt securities that may be issued thereunder. Reference is made to the accompanying Prospectus Supplement for the following terms of the Debt Securities being offered hereby: (1) the specific title of the Debt Securities; (2) whether the Debt Securities are Senior Debt Securities or Subordinated Debt Securities; (3) the aggregate principal amount of such Debt Securities; (4) the percentage of their principal amount at which the Debt Securities will be issued; (5) the date on which the Debt Securities will mature; (6) whether the Debt Securities will bear interest and, if so, the rate or rates per annum or the method for determining the rate or rates per annum at which the Debt Securities will bear interest; (7) any index used to determine the amount of principal of, and premium, if any, 4 and interest, if any, on, the Debt Securities; (8) the time or times at which any such principal, premium or interest will be payable; (9) any provisions relating to optional or mandatory redemption of the Debt Securities; (10) the denominations in which the Debt Securities are authorized to be issued; (11) the place or places at which, the period or periods within which, the price or prices at which and the terms and conditions, if any, upon which the Debt Securities may be exchanged for or converted into other securities of the Corporation, including capital securities; (12) the currency, or unit of two or more currencies, in which the Debt Securities are denominated, if other than U.S. dollars, and the currency, or unit of two or more currencies, in which interest is payable if other than the currency in which the Debt Securities are denominated; (13) the place or places at which the Corporation will make payments of principal, premium, if any, and interest, if any, and the method of such payment; (14) whether the Debt Securities will be issued, in whole or in part, in the form of one or more Global Debt Securities (as hereinafter defined) and, in such case, the depository for such Global Debt Security or Global Debt Securities; (15) the person to whom any Debt Security of such series will be payable, if other than the person in whose name that Debt Security (or one or more Predecessor Securities (as defined in the applicable Indenture)) is registered at the close of business on the Regular Record Date (as defined in the applicable Indenture) for such interest; (16) the extent to which, or the manner in which, any interest payable on a Global Debt Security on an Interest Payment Date (as defined in the applicable Indenture) will be paid; (17) any additional covenants and Events of Default (as defined in the applicable Indenture) and the remedies with respect thereto not set forth in the respective Indenture; and (18) any other specific terms of the Debt Securities. SUBORDINATION OF SUBORDINATED DEBT SECURITIES Unless otherwise indicated in the accompanying Prospectus Supplement, the Subordinated Debt Securities will be subject to the subordination provisions set forth in the applicable Subordinated Indenture and described below. The payment of the principal of, premium, if any, and interest on the Subordinated Debt Securities will, to the extent set forth in the applicable Subordinated Indenture, be subordinated in right of payment to the prior payment in full of all Senior Indebtedness (as defined below). In certain events of insolvency, the payment of the principal of, and premium, if any, and interest on, the Subordinated Debt Securities will, to the extent set forth in the applicable Subordinated Indenture, also be effectively subordinated in right of payment to the prior payment in full of all Other Financial Obligations (as defined below). Upon any payment or distribution of assets to creditors upon any liquidation, dissolution, winding up, reorganization, assignment for the benefit of creditors, marshalling of assets or any bankruptcy, insolvency or similar proceedings of the Corporation, the holders of all Senior Indebtedness will first be entitled to receive payment in full of all amounts due or to become due thereon before the holders of the Subordinated Debt Securities will be entitled to receive any payment in respect of the principal of, premium, if any, or interest on the Subordinated Debt Securities. If upon any such payment or distribution of assets to creditors, there remain, after giving effect to such subordination provisions in favor of the holders of Senior Indebtedness, any amounts of cash, property or securities available for payment or distribution in respect of Subordinated Debt Securities (as defined in each Subordinated Indenture, "Excess Proceeds") and if, at such time, any persons entitled to payment in respect of Other Financial Obligations have not received payment in full of all amounts due or to become due on or in respect of such Other Financial Obligations, then such Excess Proceeds will first be applied to pay or provide for the payment in full of such Other Financial Obligations before any payment or distribution may be made in respect of the Subordinated Debt Securities. In the event of the acceleration of the maturity of any Subordinated Debt Securities, the holders of all Senior Indebtedness will first be entitled to receive payment in full of all amounts due thereon before the holders of the Subordinated Debt Securities will be entitled to receive any payment upon the principal of, premium, if any, or interest on the Subordinated Debt Securities. No payments on account of principal of, premium, if any, or interest on the Subordinated Debt Securities or on account of the purchase or acquisition of Subordinated Debt Securities may be made if there has occurred and is continuing a default in any payment with respect to Senior Indebtedness, or if any judicial proceeding is pending with respect to any such default. 5 By reason of such subordination in favor of the holders of Senior Indebtedness, in the event of insolvency, creditors of the Corporation who hold obligations other than Senior Indebtedness and the Subordinated Debt Securities may recover less in respect of such obligations, ratably, than holders of Senior Indebtedness and may recover more in respect of such obligations, ratably, than the holders of the Subordinated Debt Securities. By reason of the obligation of the holders of the Subordinated Debt Securities to pay over any Excess Proceeds to persons entitled to payment in respect of Other Financial Obligations, in the event of insolvency, holders of Existing Subordinated Indebtedness (as defined in the applicable Indenture) that are not required to pay over Excess Proceeds may recover less, ratably, than persons entitled to payment in respect of Other Financial Obligations and may recover more, ratably, than the holders of Subordinated Debt Securities. "Senior Indebtedness," unless otherwise specified with respect to any series of debt securities, is defined in each Subordinated Indenture as the principal of, premium, if any, and interest (including interest accruing subsequent to the commencement of any proceeding for the bankruptcy or reorganization of the Corporation) on (a) all indebtedness for money borrowed, whether outstanding on the date of execution of such Subordinated Indenture or thereafter created, assumed or incurred, except such indebtedness as is by its terms expressly stated to be not superior in right of payment to the Subordinated Debt Securities issued under such Subordinated Indenture or to rank pari passu with such Subordinated Debt Securities or is identified in a Board Resolution or any indenture supplemental to such Subordinated Indenture as not superior in right of payment or to rank pari passu with such Subordinated Debt Securities and (b) any deferrals, renewals or extensions of any such indebtedness for money borrowed. Senior Indebtedness does not, however, include any obligations on account of Existing Subordinated Indebtedness (as defined below). The term "indebtedness for money borrowed," unless otherwise specified with respect to any series of debt securities, is defined to mean any obligation of, or any obligation guaranteed by, the Corporation for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, and any deferred obligation for the payment of the purchase price of property or assets. "Existing Subordinated Indebtedness" means, unless otherwise specified with respect to any series of debt securities, the Corporation's 6.00% Subordinated Notes due October 15, 2008, 7.50% Convertible Capital Securities due 2033, Subordinated LIBOR/CMT Floating Rate Debentures due 2003, 7 5/8% Convertible Capital Securities due 2033, Subordinated Floating Rate Notes due 2005, Subordinated Constant Maturity Treasury Floating Rate Debentures due 2003, 7.25% Subordinated Debentures due January 15, 2003, Subordinated Floating Rate Notes due 2002, 7 1/8% Subordinated Debentures due July 31, 2002, 8 1/8% Subordinated Debentures due May 15, 2002, 7.50% Subordinated Debentures due January 15, 2002, 9.00% Subordinated Debentures due August 1, 2001, 9.40% Subordinated Debentures due March 1, 2001, 9.50% Subordinated Debentures due June 14, 2000, Zero Coupon Subordinated Yen Notes due 1997-2004, 10.20% Subordinated Debentures due March 15, 1999, 9.20% Subordinated Capital Notes due July 15, 1999, Subordinated Money Market Capital Notes, Series A, B and C due 1999, 8% Subordinated Debentures due March 15, 1997, 8 1/4% Subordinated Debentures due July 2, 1996, and the Corporation's guaranty in respect of the 6.90% Subordinated Notes due March 1, 1995 of Bankers and such other indebtedness as may be specified in the accompanying Prospectus Supplement. "Other Financial Obligations" means, unless otherwise specified with respect to any series of debt securities, all obligations of the Corporation to make payment pursuant to the terms of financial instruments, such as (i) securities contracts and foreign currency exchange contracts, (ii) derivative instruments, such as swap agreements (including interest rate and foreign exchange rate swap agreements), cap agreements, floor agreements, collar agreements, interest rate agreements, foreign exchange rate agreements, options, commodity futures contracts, commodity option contracts, and (iii) in the case of both (i) and (ii) above, similar financial instruments, other than (A) obligations on account of Senior Indebtedness and (B) obligations on account of indebtedness for money borrowed ranking pari passu with or subordinate to the Subordinated Debt Securities. The Corporation's obligations under the Subordinated Debt Securities will rank pari passu in right of payment with each other and with the Existing Subordinated Indebtedness, subject to the obligations of the 6 holders of Subordinated Debt Securities to pay over any Excess Proceeds to persons entitled to payment in respect of Other Financial Obligations as provided in the applicable Subordinated Indenture. As of March 31, 1994, Senior Indebtedness and Other Financial Obligations of the Corporation aggregated approximately $12.0 billion. The Subordinated Indentures do not limit or prohibit the incurrence of additional Senior Indebtedness and Other Financial Obligations, which may include indebtedness that is senior to the Subordinated Debt Securities but subordinate to other obligations of the Corporation, including obligations of the Corporation in respect of Other Financial Obligations. FORM, EXCHANGE, REGISTRATION AND TRANSFER Debt Securities of a series may be issuable in definitive or global form. Unless otherwise specified in the applicable Prospectus Supplement, Debt Securities will be issued in the form of Global Securities (as defined below) held in book-entry form. See "Book-Entry Securities" below. Debt Securities may be presented for registration of transfer (with the form of transfer printed thereon duly executed) at the office of the Security Registrar (as defined in the applicable Indenture), or at the office of any transfer agent designated by the Corporation for such purpose with respect to any series of Debt Securities and referred to in the applicable Prospectus Supplement, without service charge and upon payment of any taxes and other governmental charges as described in the applicable Indenture. Such transfer or exchange will be effected upon the Security Registrar or such transfer agent, as the case may be, being satisfied with the documents of title and identity of the person making the request. The Corporation has appointed Bankers as Security Registrar with respect to both the Senior Debt Securities and the Subordinated Debt Securities. If a Prospectus Supplement refers to any transfer agents (in addition to the Security Registrar) initially designated by the Corporation with respect to any series of Debt Securities, the Corporation may at any time rescind the designation of any such transfer agent or approve a change in the location through which any such transfer agent acts, except that the Corporation will be required to maintain a transfer agent in each Place of Payment (as defined in the applicable Indenture) for such series. The Corporation may at any time designate additional transfer agents with respect to any series of Debt Securities. In the event of any redemption in part, the Corporation shall not be required to (i) issue, register the transfer of or exchange any Debt Security during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of Debt Securities of like tenor and of the series of which such Debt Security is a part, and ending at the close of business on the earliest date in which the relevant notice of redemption is deemed to have been given to all holders of Debt Securities of like tenor and of such series to be redeemed or (ii) register the transfer of or exchange any Debt Security so selected for redemption, in whole or in part, except the unredeemed portion of any Debt Security being redeemed in part. PAYMENT AND PAYING AGENTS Unless otherwise indicated in the applicable Prospectus Supplement, payment of principal of and premium, if any, on any Debt Security will be made only against surrender to the Paying Agent (as defined in the applicable Indenture) of such Debt Security. Unless otherwise indicated in the applicable Prospectus Supplement, principal of, premium, if any, and interest on Debt Securities will be payable, subject to any applicable laws and regulations, at the office of such Paying Agent or Paying Agents as the Corporation may designate from time to time, except that at the option of the Corporation payment of any interest may be made by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register (as defined in the applicable Indenture) with respect to such Debt Securities. Unless otherwise indicated in an applicable Prospectus Supplement, payment of interest on a Debt Security on any Interest Payment Date (as defined in the applicable Indenture) will be made to the person in whose name such Debt 7 Security (or Predecessor Security) is registered at the close of business on the Regular Record Date for such interest. Unless otherwise indicated in the applicable Prospectus Supplement, the Corporate Trust Office (as defined in the applicable Indenture) of Bankers in The City of New York will be designated as the Corporation's sole Paying Agent for payments with respect to Debt Securities of each series. Any Paying Agents outside of the United States and any other Paying Agents in the United States initially designated by the Corporation for the Debt Securities of any series will be named in the applicable Prospectus Supplement. The Corporation may at any time designate additional Paying Agents or rescind the designation of any Paying Agent or approve a change in the office through which any Paying Agent acts, except that the Corporation will be required to maintain a Paying Agent in each Place of Payment for each series of Debt Securities. All moneys paid by the Corporation to a Paying Agent for the payment of the principal of, premium, if any, or interest on any Debt Security of any series and that remain unclaimed at the end of two years after such principal, premium, if any, or interest shall have become due and payable will be repaid to the Corporation and the holder of such Debt Security must thereafter look only to the Corporation for payment of such amounts. MODIFICATION OF THE INDENTURES Each Indenture contains provisions that permit the Corporation and the applicable Trustee, with the consent of the holders of not less than 66 2/3% in principal amount of the debt securities that are affected by the modification, to modify the particular Indenture or any supplemental indenture or the rights of the holders of the debt securities issued under such Indenture. However, no such modification may, without the consent of the holder of each outstanding debt security affected thereby, (a) change the stated maturity date of the principal of, or any installment of principal of or interest on, any such debt security, (b) reduce the principal amount of, or premium or rate of interest on, any such debt security, (c) reduce the amount of principal of an original issue discount debt security payable upon acceleration of the maturity thereof, (d) change the place or currency of payment of principal of, or premium or interest on, any such debt security, (e) impair the right to institute suit for the enforcement of any payment on or with respect to any such debt security, or (f) reduce the percentage in principal amount of Outstanding Debt Securities (as defined in such Indenture) of any series the consent of whose holders is required for modification or amendment of the Indenture or for waiver of compliance with certain provisions of such Indenture or for waiver of certain defaults. EVENTS OF DEFAULT Senior Debt Securities. An Event of Default with respect to Senior Debt Securities of any series is defined in the Senior Indenture as being: default for 30 days in payment of any interest on Senior Debt Securities of such series; default in payment of principal of, or premium, if any, on, Senior Debt Securities of such series; default for 30 days in payment of any mandatory sinking fund payment required by the Senior Debt Securities of such series; default for 90 days after notice in performance of any other covenant in the Senior Debt Securities of such series or in the Senior Indenture; or certain events of bankruptcy, insolvency or reorganization. If an Event of Default with respect to Senior Debt Securities of any series occurs and is continuing, the Senior Trustee or the holders of not less than 25% in principal or face amount of the Senior Debt Securities of such series then outstanding may declare the principal of all such Senior Debt Securities to be due and payable. The Corporation is required to furnish to the Senior Trustee annually a statement as to the performance by the Corporation of its obligations under the Senior Indenture and as to any default in such performance. Under certain circumstances, any declaration of acceleration with respect to Senior Debt Securities of any series may be rescinded and past defaults (except, unless theretofore cured, a default in the payment of principal of, premium, if any, or interest on the Senior Debt Securities) may be waived by the holders of a majority in aggregate principal amount of the Senior Debt Securities of such series then outstanding. The Senior Trustee may withhold notice to the holders of Senior Debt Securities of any series of 8 any continuing default (except in the payment of the principal of, or premium, if any, or interest on any Senior Debt Securities of such series or in the payment of any sinking fund installment) if the Senior Trustee considers it in the interest of holders of such series of Senior Debt Securities to do so. Subordinated Debt Securities. An Event of Default with respect to Subordinated Debt Securities of any series is defined in each Subordinated Indenture as being one of certain events involving a bankruptcy, insolvency or reorganization of the Corporation. If an Event of Default with respect to Subordinated Debt Securities of any series shall have occurred and be continuing, either the applicable Subordinated Trustee or the holders of not less than 25% in aggregate principal or face amount of the Subordinated Debt Securities of such series then outstanding may declare the principal of such Subordinated Debt Securities to be due and payable immediately. The Corporation is required to furnish to each Subordinated Trustee annually a statement as to the performance by the Corporation of its obligations under the applicable Subordinated Indenture and as to any default in such performance. Under certain circumstances, any declaration of acceleration with respect to Subordinated Debt Securities of any series may be rescinded and past defaults (except, unless theretofore cured, a default in the payment of principal of, premium, if any, or interest on such Subordinated Debt Securities) may be waived by the holders of a majority in aggregate principal amount of the Subordinated Debt Securities of such series then outstanding. Each Subordinated Trustee may withhold notice to the holders of the Subordinated Debt Securities of any series issued under the applicable Indenture of any continuing default (except in the payment of the principal of, or premium, if any, or interest on any Subordinated Debt Securities of such series or in the payment of any sinking fund installment) if such Subordinated Trustee considers it in the interest of the holders of such series of Subordinated Debt Securities to do so. The Subordinated Indentures do not provide for any right of acceleration of the payment of the principal of a series of Subordinated Debt Securities upon a default in the payment of principal, premium, if any, or interest or a default in the performance of any covenant or agreement in the Subordinated Debt Securities of the particular series or in the Subordinated Indenture. In the event of a default in the payment of interest, principal or premium, if any, the holder of a Subordinated Debt Security (or the Subordinated Trustee on behalf of the holders of all of the series of Subordinated Debt Securities affected) may, subject to certain limitations and conditions, seek to enforce payment of such interest, principal or premium, if any. CONSOLIDATION, MERGER, SALE OR CONVEYANCE The Corporation has covenanted in the Indentures that it will not merge or consolidate with any other corporation or sell or convey all or substantially all of its assets to any person, firm or corporation unless the Corporation is the continuing corporation, or the successor corporation is a corporation organized under the laws of the United States of America or a state thereof and such corporation expressly assumes the obligations under any outstanding debt securities and the respective Indentures and the Corporation or such successor corporation is not, immediately after such merger, consolidation, sale or conveyance, in default in the performance of any of the covenants or conditions of the respective Indentures. The Indentures do not contain any other covenant that restricts the Corporation's ability to merge or consolidate with any other corporation, sell or convey all or substantially all of its assets to any person, firm or corporation or otherwise engage in restructuring transactions. Further, the Indentures do not contain any provisions that would provide protection to holders of Debt Securities against a sudden and dramatic decline in credit quality resulting from a takeover, recapitalization or similar restructuring of the Corporation. TITLE The Corporation, the Trustees and any agent of the Corporation or the relevant Trustee may treat the registered owner of any Debt Security as the absolute owner thereof (whether or not such Debt Security shall be overdue and notwithstanding any notice to the contrary) for the purpose of making payment and for all other purposes. 9 REPLACEMENT OF DEBT SECURITIES Any mutilated Debt Security will be replaced by the Corporation at the expense of the holder upon surrender of such Debt Security to the Trustee. Debt Securities that are destroyed, lost or stolen will be replaced by the Corporation at the expense of the holder upon delivery to the relevant Trustee of evidence of the destruction, loss or theft thereof satisfactory to the Corporation and the relevant Trustee. In the case of a destroyed, lost or stolen Debt Security, an indemnity satisfactory to the relevant Trustee and the Corporation may be required at the expense of the holder of such Debt Security before a replacement Debt Security will be issued. GOVERNING LAW The Indentures and the Debt Securities will be governed by, and construed in accordance with, the laws of the State of New York. INFORMATION CONCERNING THE TRUSTEES Subject to the provisions of the relevant Indenture relating to its duties, each Trustee will be under no obligation to exercise any of its rights or powers under such Indenture at the request, order or direction of any of the holders of debt securities issued thereunder, unless such holders have offered to such Trustee reasonable indemnity. Subject to such provision for indemnification, the holders of a majority in principal amount of the debt securities then outstanding thereunder will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee under the relevant Indenture, or exercising any trust or power conferred on such Trustee. Senior Trustee. Bankers serves as trustee under various indentures for The Chase Manhattan Corporation, parent company of the Senior Trustee. The Senior Trustee also serves as trustee under another indenture with the Corporation relating to other issues of its debt securities. In addition, the Corporation and Bankers have other relationships arising in the ordinary course of business with the Senior Trustee. First Subordinated Trustee. Bankers serves as trustee under an indenture for an affiliate of the First Subordinated Trustee. In addition, the Corporation and Bankers have other relationships arising in the ordinary course of business with the First Subordinated Trustee. Second Subordinated Trustee. The Second Subordinated Trustee will be named in the Prospectus Supplement relating to the first series of Subordinated Debt Securities issued under the Second Subordinated Indenture. DESCRIPTION OF WARRANTS The Corporation may issue from time to time, either together with Debt Securities or other Warrants or separately, one or more series of Debt Warrants, Currency Warrants, Index Warrants or Interest Rate Warrants. The Warrants are to be issued under separate warrant agreements (each, a "Warrant Agreement") to be entered into between the Corporation and a bank or trust company, as warrant agent (each, a "Warrant Agent"), all as will be set forth in the applicable Prospectus Supplement. Copies of the forms of Warrant Agreements relating to Debt Warrants, Currency Warrants, Index Warrants, and Interest Rate Warrants, including the forms of global certificates representing such Warrants (the "Warrant Certificates"), are filed as exhibits to the Registration Statement and incorporated herein by reference. The statements under this caption are brief summaries of certain provisions contained in the Warrant Agreements, do not purport to be complete, and are qualified in their entirety by reference to the forms of such agreements, including the definitions therein of certain terms, copies of which are filed or incorporated by reference as exhibits to the Registration Statement. 10 DESCRIPTION OF DEBT WARRANTS General. Unless otherwise specified in the applicable Prospectus Supplement, each Debt Warrant will entitle the holder of such Warrant to purchase for cash the principal or face amount of Warrant Debt Securities at the exercise price set forth in, or determined as set forth in, the applicable Prospectus Supplement. Unless earlier terminated or cancelled, Debt Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable Prospectus Supplement. After the close of business on such expiration date (or such later date to which such expiration date may be extended by the Corporation), unexercised Debt Warrants will become void. The applicable Prospectus Supplement will describe the terms of the Debt Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants and the Warrant Certificates representing such Debt Warrants, including the following: (1) the title of such Debt Warrants; (2) the aggregate number of such issue of Debt Warrants; (3) the initial offering price of such Debt Warrants; (4) the designation, aggregate face or principal amount, aggregate price at which such principal or face amount may be purchased upon exercise, and terms of the Warrant Debt Securities purchasable upon exercise of such Debt Warrants, including, in the case of Debt Warrants exercisable for Debt Securities, whether such Debt Securities are Senior Debt Securities or Subordinated Debt Securities; (5) the circumstances, if any, in which the exercise price of such Debt Warrants may change; (6) the principal or face amount of Warrant Debt Securities purchasable upon exercise of each such Debt Warrant and the price at which such face or principal amount of Warrant Debt Securities may be purchased upon such exercise; (7) the currency, or unit of two or more currencies, in which the initial offering price and/or the exercise price of such Debt Warrants is payable; (8) the minimum number, if any, of such Debt Warrants that must be exercised at any one time, other than upon automatic exercise, if any; (9) the maximum number, if any, of such Debt Warrants that may, subject to election by the Corporation, be exercised by all owners (or by any person or entity) on any day; (10) any provisions for the automatic exercise of such Debt Warrants; (11) whether and under what circumstances such Debt Warrants may be cancelled by the Corporation prior to expiration; (12) any other procedures and conditions relating to the exercise of such Debt Warrants; (13) if applicable, the designation and terms of any related Debt Securities or other Warrants with which such Debt Warrants are issued, including whether such Debt Securities are Senior Debt Securities or Subordinated Debt Securities and whether such other Warrants are Debt Warrants, Currency Warrants, Index Warrants or Interest Rate Warrants, and the number of such Debt Warrants issued with each such Debt Security or other Warrant; (14) the date, if any, on and after which such Debt Warrants and any related Debt Securities or other Warrants will be separately transferable; (15) the date on which the right to exercise such Debt Warrants will commence and the date on which such right will expire; (16) the identity of the Warrant Agent under the applicable Warrant Agreement; (17) any national securities exchange on which such Debt Warrants will be listed; and (18) any other terms of such Debt Warrants. Unless otherwise specified in the applicable Prospectus Supplement, Debt Warrants will be issued in the form of Global Securities held in book-entry form. See "Book-Entry Securities" below. Exercise of Debt Warrants. Debt Warrants may be exercised in the manner set forth in the applicable Prospectus Supplement. Unless otherwise specified in the applicable Prospectus Supplement, in the case of Debt Warrants held in book-entry form, as described under "Book-Entry Securities" below, upon receipt by the Warrant Agent of payment of the exercise price and notice of exercise and delivery of the applicable Debt Warrants to the account of the Corporation free on the books of DTC (as defined below), the Corporation will, as soon as practicable, forward to the holder of such Debt Warrants the Warrant Debt Securities purchasable upon such exercise. In the case of Debt Warrants held in definitive form, the Corporation will make available to the Warrant Agent the Warrant Debt Securities purchasable upon such exercise for delivery to the holders of such Debt Warrants as soon as practicable upon receipt of payment of the exercise price and the Warrant Certificate properly completed and duly executed at the corporate trust office of the applicable Warrant Agent or any other office indicated in the applicable Prospectus Supplement. If fewer 11 than all of the Debt Warrants represented by such Warrant Certificate are exercised, a new Warrant Certificate will be issued for the remaining number of Debt Warrants. Before the exercise of their Debt Warrants, holders of Debt Warrants will not have any of the rights of holders of the Warrant Debt Securities purchasable upon such exercise, will not be entitled to payments of principal of, premium, if any, or interest on, the Warrant Debt Securities purchasable upon such exercise, and will not have the right to enforce any of the covenants in the Indenture applicable to such Warrant Debt Securities. Other Information. Other important information regarding the Debt Warrants is set forth below under "--Certain Items Applicable to All Warrants" and under "Book-Entry Securities," "United States Taxation" and "Foreign Currency Risks." DESCRIPTION OF CURRENCY WARRANTS General. Currency Warrants may be issued in the form of (i) Currency Warrants ("Currency Put Warrants") entitling the holders thereof to receive from the Corporation upon exercise the cash settlement value of the right to sell a specified amount of one foreign currency, or unit of two or more currencies (the "Base Currency"), for a specified amount of another foreign currency, or unit of two or more currencies (the "Reference Currency"), (ii) Currency Warrants ("Currency Call Warrants") entitling the holders thereof to receive from the Corporation upon exercise the cash settlement value of the right to purchase a specified amount of a Base Currency for a specified amount of a Reference Currency, or (iii) any combination of the foregoing. Unless otherwise provided in the applicable Prospectus Supplement, each Currency Warrant will entitle the holder thereof to receive from the Corporation upon exercise the cash settlement value of such Currency Warrant. Unless earlier terminated or cancelled, Currency Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable Prospectus Supplement. Certain Currency Warrants will, if specified in the applicable Prospectus Supplement, entitle the holders thereof to receive from the Corporation a certain amount upon cancellation of the Currency Warrants by the Corporation upon the occurrence of specified events. If specified in the applicable Prospectus Supplement, the Currency Warrants will be deemed automatically exercised if not exercised by the holder thereof on or before the expiration date of such Warrants (or such other date as is specified in the applicable Prospectus Supplement). In addition, if so specified in the applicable Prospectus Supplement, following the occurrence of an Extraordinary Event (as defined in the applicable Prospectus Supplement), the cash settlement value of a Currency Warrant may, at the option of the Corporation, be determined on a different basis, including in connection with automatic exercise at expiration. The applicable Prospectus Supplement will describe the terms of the Currency Warrants offered thereby, the Warrant Agreement relating to such Currency Warrants and the Warrant Certificates representing such Currency Warrants, including the following: (1) the title of such Currency Warrants; (2) whether such Currency Warrants shall be Currency Put Warrants, Currency Call Warrants, or any combination thereof; (3) the aggregate number of such issue of Currency Warrants; (4) the initial offering price of such Currency Warrants; (5) the exercise price, if any, of such Currency Warrants; (6) the currency, or unit of two or more currencies, in which the initial offering price, the exercise price, if any, and/or the cash settlement value of such Currency Warrants is payable; (7) the Base Currency and Reference Currency for such Currency Warrants; (8) the formula for determining the cash settlement value of such Currency Warrants; (9) the circumstances, if any, in which the exercise price, if any, or the formula for determining the cash settlement value may change; (10) whether and under what circumstances a maximum expiration value is applicable upon the expiration or exercise of such Currency Warrants; (11) the effect or effects, if any, of the occurrence of an Extraordinary Event; (12) the minimum number, if any, of such Currency Warrants that must be exercised at any one time, other than upon automatic exercise, if any; (13) the maximum number, if any, of 12 such Currency Warrants that may, subject to election by the Corporation, be exercised by all owners (or by any person or entity) on any day; (14) any provisions for the automatic exercise of such Currency Warrants; (15) whether and under what circumstances such Currency Warrants may be cancelled by the Corporation prior to expiration; (16) any provisions permitting a holder of such Currency Warrants to condition any notice of exercise on the absence of certain specified changes in the values or relative values of the Base Currency or Reference Currency after the date of exercise; (17) any other procedures and conditions relating to the exercise of such Currency Warrants; (18) if applicable, the designation and terms of any related Debt Securities or other Warrants with which such Currency Warrants are issued, including whether such Debt Securities are Senior Debt Securities or Subordinated Debt Securities and whether such other Warrants are Debt Warrants, Currency Warrants, Index Warrants or Interest Rate Warrants, and the number of such Currency Warrants issued with each such Debt Security or other Warrant; (19) the date, if any, on and after which such Currency Warrants and any related Debt Securities or other Warrants will be separately transferable; (20) the date on which the right to exercise such Currency Warrants will commence and the date on which such right will expire; (21) the identity of the Warrant Agent under the applicable Warrant Agreement; (22) any national securities exchange on which such Currency Warrants will be listed; and (23) any other terms of such Currency Warrants. Unless otherwise specified in the applicable Prospectus Supplement, Currency Warrants will be issued in the form of Global Securities held in book-entry form. See "Book-Entry Securities" below. Unless otherwise specified in the applicable Prospectus Supplement, the cash settlement value (and, if applicable, the amount payable on cancellation) of the Currency Warrants will be payable in U.S. dollars. Exercise of Currency Warrants. Currency Warrants may be exercised in the manner set forth in the applicable Prospectus Supplement. Unless otherwise specified in the applicable Prospectus Supplement, in the case of Currency Warrants held in book-entry form, as described under "Book-Entry Securities" below, upon receipt by the Warrant Agent of payment of the exercise price, if any, and notice of exercise and delivery of the applicable Currency Warrants to the account of the Corporation free on the books of DTC, the Corporation will, as soon as practicable, make payment of the applicable amounts to the account of the holder of such Currency Warrants specified in the applicable notice of exercise. In the case of Currency Warrants held in definitive form, the Corporation will make adequate funds available to the Warrant Agent to make such payment upon such exercise as soon as practicable upon receipt of payment of the exercise price, if any, and the applicable Warrant Certificate properly completed and duly executed at the corporate trust office of the applicable Warrant Agent or any other office indicated in the applicable Prospectus Supplement. If fewer than all of the Currency Warrants represented by such Warrant Certificate are exercised, a new Warrant Certificate will be issued for the remaining number of Currency Warrants. The holders of Currency Warrants will not receive any interest on any cash settlement value or amount payable on cancellation of the Currency Warrants. Extraordinary Events. If so specified in the applicable Prospectus Supplement, following the occurrence of an Extraordinary Event, Currency Warrants may be cancelled by the Corporation, the cash settlement value of such Currency Warrants may be determined on a different basis than under normal circumstances, or the exercise or valuation of, or payment for, such Currency Warrants may be delayed or postponed. Upon cancellation, the holders of such Currency Warrants will be entitled to receive only the applicable amount payable on cancellation specified in such Prospectus Supplement. The amount payable on cancellation may be either a fixed amount or an amount that varies during the term of the Currency Warrants in accordance with a schedule or formula as specified in the applicable Prospectus Supplement. Other Information. Other important information regarding the Currency Warrants is set forth below under "--Certain Items Applicable to All Warrants" and under "Book-Entry Securities," "United States Taxation" and "Foreign Currency Risks." 13 DESCRIPTION OF INDEX WARRANTS General. Index Warrants may be issued in the form of (i) Index Warrants ("Index Put Warrants") entitling the holders thereof to receive from the Corporation upon exercise an amount in cash determined by reference to decreases in the level of a specified stock or security index or the value of a specified stock or other debt or equity security or a portfolio of specified stocks or other debt or equity securities (the "Index"), (ii) Index Warrants ("Index Call Warrants") entitling the holders thereof to receive from the Corporation upon exercise an amount in cash determined by reference to increases in the specified Index, or (iii) any combination of the foregoing. The Index may be composed of one or more U.S. or foreign stocks, bonds or other debt or equity securities or a combination thereof (the "Underlying Securities"), and may be a preexisting U.S. or foreign index compiled and published by a third party or an index based on one or more such securities selected by the Corporation solely in connection with the issuance of such Index Warrants. An Index Warrant will not require or entitle the holder thereof to purchase or take delivery of or sell or make delivery of any securities (including Underlying Securities), nor will the Corporation be under any obligation to, nor will it, purchase or take delivery of or sell or make delivery of any securities (including Underlying Securities) from or to holders of the Index Warrants pursuant to the Index Warrants. Unless otherwise provided in the applicable Prospectus Supplement, each Index Warrant will entitle the holder thereof to receive from the Corporation upon exercise the cash settlement value of such Index Warrant. Unless earlier terminated or cancelled, Index Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable Prospectus Supplement. Certain Index Warrants will, if specified in the applicable Prospectus Supplement, entitle the holders thereof to receive from the Corporation a certain amount upon cancellation of the Index Warrants by the Corporation upon the occurrence of specified events. If specified in the applicable Prospectus Supplement, the Index Warrants may be deemed automatically exercised if not exercised by the holder thereof on or before the expiration date of such Warrants (or such other date as is specified in the applicable Prospectus Supplement). In addition, if so specified in the applicable Prospectus Supplement, following the occurrence of an Extraordinary Event (as defined in the applicable Prospectus Supplement), the cash settlement value of an Index Warrant may, at the option of the Corporation, be determined on a different basis, including in connection with automatic exercise at expiration. The applicable Prospectus Supplement will describe the terms of the Index Warrants offered thereby, the Warrant Agreement relating to such Index Warrants and the Warrant Certificates representing such Index Warrants, including the following: (1) the title of such Index Warrants; (2) whether such Index Warrants shall be Index Put Warrants, Index Call Warrants, or any combination thereof; (3) the aggregate number of such issue of Index Warrants; (4) the initial offering price of such Index Warrants; (5) the exercise price, if any, of such Index Warrants; (6) the currency, or unit of two or more currencies, in which the initial offering price, the exercise price, if any, and/or the cash settlement value of such Index Warrants is payable; (7) the Index or Indices for such Index Warrants, and certain information relating to such Index or Indices and the Underlying Securities, including, to the extent possible, the policies of the publisher of the Index, if any, with respect to additions, deletions and substitutions of such Underlying Securities; (8) the method of providing for a substitute Index or Indices or otherwise determining any amount payable with respect to such Index Warrants if any Index changes or ceases to be made available by its publisher; (9) the formula for determining the cash settlement value of such Index Warrants; (10) the circumstances, if any, in which the exercise price, if any, or the formula for determining the cash settlement value may change; (11) whether and under what circumstances a maximum expiration value is applicable upon the expiration or exercise of such Index Warrants; (12) the effect or effects, if any, of the occurrence of an Extraordinary Event; (13) the minimum number, if any, of such Index Warrants that must be exercised at any one time, other than upon automatic exercise, if any; (14) the maximum number, if any, of such Index Warrants that may be exercised by all owners (or by any person or entity) on any day; (15) any provisions for the automatic exercise of such Index Warrants; (16) whether and under what circumstances such Index Warrants may be cancelled by the Corporation prior to expiration; (17) any provisions permitting a holder of such Index Warrants to condition any notice of exercise on the absence of certain specified changes in the value of the Index after the date of 14 exercise; (18) any other procedures and conditions relating to the exercise of such Index Warrants; (19) if applicable, the designation and terms of any related Debt Securities or other Warrants with which such Index Warrants are issued, including whether such Debt Securities are Senior Debt Securities or Subordinated Debt Securities and whether such other Warrants are Debt Warrants, Currency Warrants, Index Warrants or Interest Rate Warrants, and the number of such Index Warrants issued with each such Debt Security or other Warrant; (20) the date, if any, on and after which such Index Warrants and any related Debt Securities or other Warrants will be separately transferable; (21) the date on which the right to exercise such Index Warrants will commence and the date on which such right will expire; (22) the identity of the Warrant Agent under the applicable Warrant Agreement; (23) any national securities exchange on which such Index Warrants will be listed; and (24) any other terms of such Index Warrants. Unless otherwise specified in the applicable Prospectus Supplement, Index Warrants will be issued in the form of Global Securities held in book-entry form. See "Book-Entry Securities" below. Unless otherwise specified in the applicable Prospectus Supplement, each Index will be an established, broadly-based index related to a major domestic or foreign securities trading market or based upon a portfolio of specified stocks or other securities, and the cash settlement value (and, if applicable, the amount payable on cancellation) of the Index Warrants will be payable in U.S. dollars. Exercise of Index Warrants. Index Warrants may be exercised in the manner set forth in the applicable Prospectus Supplement. Unless otherwise specified in the Applicable Prospectus Supplement, in the case of Index Warrants held in book-entry form, as described under "Book-Entry Securities" below, upon receipt by the Warrant Agent of payment of the exercise price, if any, and notice of exercise and delivery of the applicable Index Warrants to the account of the Corporation free on the books of DTC, the Corporation will, as soon as practicable, make adequate funds available to the Warrant Agent to make payment of the applicable amounts to the account of the holder of such Index Warrants specified in the applicable notice of exercise. In the case of Index Warrants held in definitive form, the Corporation will make such payment upon such exercise as soon as practicable upon receipt of payment of the exercise price, if any, and the applicable Warrant Certificate properly completed and duly executed at the corporate trust office of the applicable Warrant Agent or any other office indicated in the applicable Prospectus Supplement. If fewer than all of the Index Warrants represented by such Warrant Certificate are exercised, a new Warrant Certificate will be issued for the remaining number of Index Warrants. Index Warrants will be settled only in cash and, accordingly, will not require or entitle the holder thereof to sell, make delivery, purchase or take delivery of any securities (including any Underlying Security), nor will the Corporation be under any obligation to, nor will it, purchase or take delivery of or sell or make delivery of any securities (including any Underlying Security) from or to holders of Index Warrants pursuant to such Index Warrants. The holders of Index Warrants will not receive any interest on any cash settlement value or amount payable on cancellation of the Index Warrants, and the Index Warrants will not entitle the holders thereof to any of the rights of holders of any securities (including any Underlying Security). Extraordinary Events. If so specified in the applicable Prospectus Supplement, following the occurrence of an Extraordinary Event, Index Warrants may be cancelled by the Corporation, the cash settlement value of such Index Warrants may be determined on a different basis than under normal circumstances, or the exercise or valuation of, or payment for, such Index Warrants may be delayed or postponed. Upon cancellation, the holders of such Index Warrants will be entitled to receive only the applicable amount payable on cancellation specified in such Prospectus Supplement. The amount payable on cancellation may be either a fixed amount or an amount that varies during the term of the Index Warrants in accordance with a schedule or formula as specified in the applicable Prospectus Supplement. Other Information. Other important information regarding the Index Warrants is set forth below under "--Certain Items Applicable to All Warrants" and under "Book-Entry Securities," "United States Taxation" and "Foreign Currency Risks." 15 DESCRIPTION OF INTEREST RATE WARRANTS General. Interest Rate Warrants may be issued in the form of (i) Interest Rate Warrants ("Interest Rate Put Warrants") entitling the holders thereof to receive from the Corporation upon exercise an amount in cash determined by reference to decreases in a fixed yield, price or rate of a Debt Instrument, in a Rate or in any combination of Debt Instruments and/or Rates or in a yield, price or rate that varies during the term of the Interest Rate Warrants in accordance with a schedule or formula, (ii) Interest Rate Warrants ("Interest Rate Call Warrants") entitling the holders thereof to receive from the Corporation upon exercise an amount in cash determined by reference to increases in such characteristics or rates, or (iii) any combination of the foregoing. The applicable Prospectus Supplement will set forth the formula pursuant to which the cash settlement value of the Interest Rate Warrants will be determined, including any multipliers, if applicable. The "Debt Instrument," if any, will be one or more instruments issued either by the United States government or by a foreign government and will be specified in the applicable Prospectus Supplement. The "Rate," if any, will be one or more interest rates or interest rate swap rates specified in the applicable Prospectus Supplement. An Interest Rate Warrant will not require or entitle the holder thereof to purchase or take delivery of or sell or make delivery of any securities (including Debt Instruments), nor will the Corporation be under any obligation to, nor will it, purchase or take delivery of or sell or make delivery of any securities (including Debt Instruments) from or to holders of the Interest Rate Warrants pursuant to the Interest Rate Warrants. Unless otherwise provided in the applicable Prospectus Supplement, each Interest Rate Warrant will entitle the holder thereof to receive from the Corporation upon exercise the cash settlement value of such Interest Rate Warrant. Unless earlier terminated or cancelled, Interest Rate Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable Prospectus Supplement. Certain Interest Rate Warrants will, if specified in the applicable Prospectus Supplement, entitle the holders thereof to receive from the Corporation a certain amount upon cancellation of the Interest Rate Warrants by the Corporation upon the occurrence of specified events. If specified in the applicable Prospectus Supplement, the Interest Rate Warrants may be deemed automatically exercised if not exercised by the holder thereof on or before the expiration date of such Warrants (or such other date as is specified in the applicable Prospectus Supplement). In addition, if so specified in the applicable Prospectus Supplement, following the occurrence of an Extraordinary Event (as defined in the applicable Prospectus Supplement), the cash settlement value of an Interest Rate Warrant may, at the option of the Corporation, be determined on a different basis, including in connection with automatic exercise at expiration. The Prospectus Supplement will describe the terms of Interest Rate Warrants offered thereby, the Warrant Agreement relating to such Interest Rate Warrants and the Warrant Certificates representing such Interest Rate Warrants, including the following: (1) the title of such Interest Rate Warrants; (2) whether such Interest Rate Warrants shall be Interest Rate Put Warrants, Interest Rate Call Warrants, or any combination thereof; (3) the aggregate number of such issue of Interest Rate Warrants; (4) the initial offering price of such Interest Rate Warrants; (5) the exercise price, if any, of such Interest Rate Warrants; (6) the currency, or unit of two or more currencies, in which the initial offering price, the exercise price, if any, and/or the cash settlement value of such Interest Rate Warrants is payable; (7) the Debt Instrument, Rate, or other yield, price or rate utilized for such Interest Rate Warrants, and certain information regarding such Debt Instrument, Rate or other measure; (8) the method of providing for a substitute Debt Instrument, Rate or other measure or otherwise determining the amount payable with respect to such Interest Rate Warrants if such Debt Instrument is no longer issued or changes or such Rate or other measure changes or is no longer made available; (9) the formula for determining the cash settlement value of such Interest Rate Warrants; (10) the circumstances, if any, in which the exercise price, if any, or the formula for determining the cash settlement value may change; (11) whether and under what circumstances a maximum expiration value is applicable upon the expiration or exercise of such Interest Rate Warrants; (12) the effect or effects, if any, of the occurrence of an Extraordinary Event; (13) the minimum number, if any, of such Interest Rate Warrants that must be exercised at any one time, other than upon automatic exercise, if any; (14) the maximum number, if any, of such Interest Rate Warrants, that may be exercised by all owners (or by any person or entity) on 16 any day; (15) any provisions for the automatic exercise of such Interest Rate Warrants; (16) whether and under what circumstances such Interest Rate Warrants may be cancelled by the Corporation prior to expiration; (17) any provisions permitting a holder of such Interest Rate Warrants to condition any notice of exercise on the absence of certain specified changes in the value of the Debt Instrument, Rate or other measure after the date of exercise; (18) any other procedures and conditions relating to the exercise of such Interest Rate Warrants; (19) if applicable, the designation and terms of any related Debt Securities or other Warrants with which such Interest Rate Warrants are issued, including whether such Debt Securities are Senior Debt Securities or Subordinated Debt Securities and whether such other Warrants are Debt Warrants, Currency Warrants, Index Warrants or Interest Rate Warrants, and the number of such Interest Rate Warrants issued with each such Debt Security or other Warrant; (20) the date, if any, on and after which such Interest Rate Warrants and any related Debt Securities or other Warrants will be separately transferable; (21) the date on which the right to exercise such Interest Rate Warrants shall commence and the date on which such right will expire; (22) the identity of the Warrant Agent under the applicable Warrant Agreement; (23) any national securities exchange on which such Interest Rate Warrants will be listed; and (24) any other terms of such Interest Rate Warrants. Unless otherwise specified in the applicable Prospectus Supplement, Interest Rate Warrants will be issued in the form of Global Securities held in book- entry form. See "Book-Entry Securities" below. Unless otherwise specified in the applicable Prospectus Supplement, the cash settlement value (and, if applicable, the amount payable on cancellation) of the Interest Rate Warrants will be payable in U.S. dollars. Exercise of Interest Rate Warrants. Interest Rate Warrants may be exercised in the manner set forth in the applicable Prospectus Supplement. Unless otherwise specified in the applicable Prospectus Supplement, in the case of Interest Rate Warrants held in book-entry form, as described under "Book-Entry Securities" below, upon receipt by the Warrant Agent of payment of the exercise price, if any, and notice of exercise and delivery of the applicable Interest Rate Warrants to the account of the Corporation free on the books of DTC, the Corporation will, as soon as practicable, make adequate funds available to the Warrant Agent to make payment of the applicable amounts to the account of the holder of such Interest Rate Warrants specified in the applicable notice of exercise. In the case of Interest Rate Warrants held in definitive form, the Corporation will make such payment upon such exercise as soon as practicable upon receipt of payment of the exercise price, if any, and the applicable Warrant Certificate properly completed and duly executed at the corporate trust office of the applicable Warrant Agent or any other office indicated in the applicable Prospectus Supplement. If fewer than all of the Interest Rate Warrants represented by such Warrant Certificate are exercised, a new Warrant Certificate will be issued for the remaining number of Interest Rate Warrants. Interest Rate Warrants will be settled only in cash and, accordingly, will not require or entitle the holder thereof to sell, make delivery, purchase or take delivery of any securities (including any Debt Instrument), nor will the Corporation be under any obligation to, nor will it, purchase or take delivery of or sell or make delivery of any securities (including any Debt Instrument) from or to holders of Interest Rate Warrants pursuant to such Interest Rate Warrants. The holders of Interest Rate Warrants will not receive any interest on any cash settlement value or amount payable on cancellation of the Interest Rate Warrants, and the Interest Rate Warrants will not entitle the holders thereof to any of the rights of holders of any securities (including any Debt Instrument). Extraordinary Events. If so specified in the applicable Prospectus Supplement, following the occurrence of an Extraordinary Event, Interest Rate Warrants may be cancelled by the Corporation, the cash settlement value of such Interest Rate Warrants may be determined on a different basis than under normal circumstances, or the exercise or valuation of, or payment for, such Interest Rate Warrants may be delayed or postponed. Upon cancellation, the holders of such Interest Rate Warrants will be entitled to receive only the applicable amount payable on cancellation specified in such Prospectus Supplement. The amount payable on cancellation may be either a fixed amount or an amount that varies during the term of the Interest Rate Warrants in accordance with a schedule or formula as specified in the applicable Prospectus Supplement. 17 Other Information. Other important information regarding the Interest Rate Warrants is set forth below under "--Certain Items Applicable to All Warrants" and under "Book-Entry Securities," "United States Taxation" and "Foreign Currency Risks." CERTAIN ITEMS APPLICABLE TO ALL WARRANTS Modification. Any Warrant Agreement and the terms of the related Warrants may be amended by the Corporation and the applicable Warrant Agent (which amendment shall take the form of a supplemental warrant agreement (collectively referred to as "Supplemental Agreements")), without the consent of the holders of any such Warrants, for the purpose of (i) curing any ambiguity or of curing, correcting or supplementing any defective or inconsistent provision contained therein, or of making any other provisions with respect to matters or questions arising under the Warrant Agreement that shall not be inconsistent with the provisions of the Warrant Agreement or the Warrant Certificates, (ii) evidencing the succession of another corporation to the Corporation and the assumption by any such successor of the covenants of the Corporation contained in such Warrant Agreement and the Warrants, (iii) appointing a successor depository, (iv) evidencing and providing for the acceptance of appointment by a successor Warrant Agent with respect to the Warrants, (v) adding to the covenants of the Corporation for the benefit of the holders of such Warrants or surrendering any right or power conferred upon the Corporation under the Warrant Agreement, (vi) issuing Warrants in definitive form, if such Warrants are initially issued in book-entry form, or (vii) amending the Warrant Agreement and the Warrants in any manner that the Corporation may deem to be necessary or desirable and that will not materially and adversely affect the interests of the holders of such Warrants. The Corporation and the Warrant Agent may also amend any Warrant Agreement and the terms of the related Warrants (which amendment shall take the form of a Supplemental Agreement) with the consent of the holders of not less than 66 2/3% in number of the unexercised Warrants affected by such amendment, for the purpose of adding any provisions to or modifying in any manner or eliminating any of the provisions of such Warrant Agreement or of modifying in any manner the rights of the holders of such Warrants, except that no such amendment that (i) changes the determination of the cash settlement value or amount payable on cancellation, if any, of such Warrants (or any aspects of such determination) so as to reduce the amount receivable upon exercise or deemed exercise, (ii) shortens the period of time during which the Warrants may be exercised, (iii) otherwise materially and adversely affects the exercise rights of the holders of such Warrants, or (iv) reduces the number of unexercised Warrants the consent of holders of which is required for amendment of the Warrant Agreement or the related Warrants, may be made without the consent of each holder affected thereby. Merger, Consolidation, Sale, Lease or Other Dispositions. Each Warrant Agreement will provide that the Corporation may consolidate or merge with or into any other corporation or sell, lease or convey all or substantially all of its assets to any other corporation, provided that (i) either the Corporation must be the continuing corporation or the corporation (if other than the Corporation) that is formed by or results from any such consolidation or merger or that receives such assets must be a corporation organized and existing under the laws of the United States of America or a state thereof and must assume the obligations of the Corporation to make due and punctual payment of the cash settlement value (or amount payable on cancellation, if applicable) with respect to all the unexercised Warrants and the performance and observance of all of the covenants and conditions of the applicable Warrant Agreement to be performed or observed by the Corporation and (ii) the Corporation or such successor corporation, as the case may be, must not immediately be in default under such Warrant Agreement. Enforceability of Rights by Holders of Warrants. Each Warrant Agent will act solely as the agent of the Corporation under the applicable Warrant Agreement and will not assume any obligation or relationship of agency or trust for or with any holder of any Warrant. A single bank or trust company may act as Warrant Agent for more than one issue of Warrants. A Warrant Agent will have no duty or responsibility in case of any default by the Corporation in the performance of its obligations under the applicable Warrant Agreement or Warrant including, without limitation, any duty or responsibility to initiate any proceedings at law or otherwise or to make any demand upon the Corporation. Any holder of a Warrant may, without the consent 18 of the related Warrant Agent enforce by appropriate legal action, in and for its own behalf, its right to exercise, and receive payment for, its Warrants. Listing. Unless otherwise indicated in the applicable Prospectus Supplement, each issue of Warrants will be listed on a national securities exchange as specified in the Prospectus Supplement, subject only to official notice of issuance, as a condition of sale of any such Warrants. It is expected that such exchange will cease trading an issue of Warrants at the close of business on the related expiration date of such Warrants. In the event that the Warrants are delisted from, or permanently suspended from trading on, such exchange, the expiration date for such Warrants will be the date such delisting or trading suspension becomes effective and Warrants not previously exercised will be deemed automatically exercised on such expiration date. The Corporation will notify holders of Warrants as soon as practicable of any such delisting or permanent trading suspension. The applicable Warrant Agreement will contain a covenant of the Corporation not to seek delisting of the Warrants from, or suspension of their trading on, such exchange. Title. The Corporation, each Warrant Agent and each agent of the Corporation or the relevant Warrant Agent may treat the registered owner of any Warrant as the absolute owner thereof (notwithstanding any notice to the contrary) for the purpose of making payment and for all other purposes. See "Book-Entry Securities" below. Replacement of Warrant Certificates. Any mutilated Warrant Certificate will be replaced by the Corporation at the expense of the holder upon surrender of such Warrant Certificate to the applicable Warrant Agent. Warrant Certificates that are destroyed, lost or stolen will be replaced by the Corporation at the expense of the holder upon delivery to the relevant Warrant Agent of evidence of the destruction, loss or theft thereof satisfactory to the Corporation and the relevant Warrant Agent. In the case of a destroyed, lost or stolen Warrant Certificate, an indemnity satisfactory to the relevant Warrant Agent and the Corporation may be required at the expense of the holder of such Warrant before a replacement Warrant Certificate will be issued. Governing Law. The Warrant Agreements and Warrants will be governed by, and construed in accordance with, the laws of the State of New York. "Reopening" of an Issue of Warrants. The Corporation will have the right to "reopen" a previous issue of Warrants and to issue additional Warrants of such issue without the consent of any holder of Warrants of such issue. BOOK-ENTRY SECURITIES Unless otherwise specified in the applicable Prospectus Supplement, the Offered Securities will be issued in the form of one or more global certificates (collectively, with respect to each series or issue of Offered Securities, the "Global Security") registered in the name of a depositary or a nominee of a depositary. Unless otherwise specified in the applicable Prospectus Supplement, the depositary will be The Depository Trust Company ("DTC"). The Corporation has been informed by DTC that its nominee will be Cede & Co. ("Cede"). Accordingly, Cede is expected to be the initial registered holder of the Offered Securities that are issued in global form. No person that acquires an interest in such Offered Securities (each such person, a "Holder") will be entitled to receive a certificate representing such person's interest in the Offered Securities except as set forth herein or in the accompanying Prospectus Supplement. Unless and until definitive Offered Securities are issued under the limited circumstances described herein, all references to actions by holders of Offered Securities issued in global form shall refer to actions taken by DTC upon instructions from its Participants (as defined below), and all references herein to payments and notices to holders shall refer to payments and notices to DTC or Cede, as the registered holder of such Offered Securities. 19 DTC has informed the Corporation that it is a limited purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, that it is a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered pursuant to Section 17A of the Exchange Act, and that it was created to hold securities for its participating organizations ("Participants") and to facilitate the clearance and settlement of securities transactions among Participants through electronic book-entry, thereby eliminating the need for physical movement of certificates. Participants include securities brokers and dealers, banks, trust companies and clearing corporations, and may include certain other organizations. Indirect access to the DTC system also is available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly ("Indirect Participants"). Holders that are not Participants or Indirect Participants but that desire to purchase, sell or otherwise transfer ownership of, or other interests in, Offered Securities may do so only through Participants and Indirect Participants. Under a book-entry format, Holders may experience some delay in their receipt of payments, as such payments will be forwarded by the agent designated by the Corporation to Cede, as nominee for DTC. DTC will forward such payments to its Participants, which thereafter will forward them to Indirect Participants or Holders. Holders will not be recognized by the applicable Trustee or Warrant Agent as registered holders of the Offered Securities entitled to the benefits of the applicable Indenture or Warrant Agreement. Holders that are not Participants will be permitted to exercise their rights as such only indirectly through and subject to the procedures of Participants and, if applicable, Indirect Participants. Under the rules, regulations and procedures creating and affecting DTC and its operations as currently in effect (the "Rules"), DTC will be required to make book-entry transfers of Offered Securities among Participants and to receive and transmit payments to Participants. Participants and Indirect Participants with which Holders have accounts with respect to the Offered Securities similarly are required by the Rules to make book-entry transfers and receive and transmit such payments on behalf of their respective Holders. Because DTC can act only on behalf of Participants, who in turn act only on behalf of Holders or Indirect Participants, and on behalf of certain banks, trust companies and other persons approved by it, the ability of a Holder to pledge Offered Securities to persons or entities that do not participate in the DTC system, or to otherwise act with respect to such Offered Securities, may be limited due to the absence of physical certificates for such Offered Securities. DTC has advised the Corporation that DTC will take any action permitted to be taken by a registered holder of any Offered Securities under the applicable Indenture or Warrant Agreement only at the direction of one or more Participants to whose accounts with DTC such Offered Securities are credited. A Global Security will be exchangeable for the relevant definitive Offered Securities registered in the names of persons other than DTC or its nominee only if (i) DTC notifies the Corporation that it is unwilling or unable to continue as depository for such Global Security or if at any time DTC ceases to be a clearing agency registered under the Exchange Act at a time when DTC is required to be so registered in order to act as such depository, (ii) the Corporation executes and delivers to the applicable Trustee and/or Warrant Agent an order complying with the requirements of the applicable Indenture and/or Warrant Agreement that such Global Security shall be so exchangeable or (iii) there has occurred and is continuing a default in the payment of principal of, premium, if any, or interest on, the Debt Securities or the payment of the cash settlement amount, or cancellation amount, if any, of the Warrants, or, in the case of Debt Securities, an Event of Default or an event that, with the giving of notice or lapse of time, or both, would constitute an Event of Default with respect to such Debt Securities. Any Global Security that is exchangeable pursuant to the preceding sentence will be exchangeable for Debt Securities or Warrants registered in such names as DTC directs. Upon the occurrence of any event described in the immediately preceding paragraph, DTC is generally required to notify all Participants of the availability through DTC of definitive Offered Securities. Upon surrender by DTC of the Global Security representing the Offered Securities and delivery of instructions for 20 re-registration, the Trustee or Warrant Agent, as the case may be, will reissue the Offered Securities as definitive Debt Securities or Warrants, and thereafter such Trustee or Warrant Agent will recognize the Holders of such definitive Offered Securities as registered holders of Offered Securities entitled to the benefits of the applicable Indenture or Warrant Agreement. Except as described above, the Global Security may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or to a successor depositary appointed by the Corporation. Except as described above, DTC may not sell, assign, transfer or otherwise convey any beneficial interest in a Global Security evidencing all or part of the Offered Securities unless such beneficial interest is in an amount equal to an authorized denomination for the Offered Securities. UNITED STATES TAXATION Certain special United States federal income tax considerations may be applicable to the Debt Securities and Warrants. The applicable Prospectus Supplement will describe such tax considerations. The summary of United States federal income tax considerations contained in such Prospectus Supplement will be presented for informational purposes only, however, and will not be intended as legal or tax advice to prospective purchasers. Prospective purchasers of Debt Securities and Warrants are urged to consult their own tax advisors prior to any acquisition of such Offered Securities. FOREIGN CURRENCY RISKS GENERAL Debt Securities of a series, and payments made in respect of Warrants of an issue, may be denominated in such foreign currency, or unit of two or more currencies, as may be designated by the Corporation at the time of offering (such Offered Securities, "Foreign Currency Securities"). THIS PROSPECTUS DOES NOT DESCRIBE ALL RISKS OF AN INVESTMENT IN FOREIGN CURRENCY SECURITIES THAT RESULT FROM SUCH FOREIGN CURRENCY SECURITIES, OR AMOUNTS PAYABLE IN RESPECT OF SUCH FOREIGN CURRENCY SECURITIES, BEING DENOMINATED IN A FOREIGN CURRENCY, OR UNIT OF TWO OR MORE CURRENCIES, EITHER AS SUCH RISKS EXIST AT THE DATE OF THIS PROSPECTUS OR AS SUCH RISKS MAY CHANGE FROM TIME TO TIME. PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN FOREIGN CURRENCY SECURITIES. FOREIGN CURRENCY SECURITIES ARE NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY TRANSACTIONS. ADDITIONAL FACTORS MAY BE SET FORTH IN CONNECTION WITH A SPECIFIC FOREIGN CURRENCY SECURITY IN THE APPLICABLE PROSPECTUS SUPPLEMENT. Unless otherwise indicated in the applicable Prospectus Supplement, a Foreign Currency Security will not be sold in, or to a resident of, the country of the Specified Currency (as defined below) in which such Foreign Currency Security is denominated. The information set forth below is by necessity incomplete and prospective purchasers of Foreign Currency Securities should consult their own financial and legal advisors with respect to any matters that may affect the purchase or holding of a Foreign Currency Security or the receipt of payments of principal of, and premium, if any, and interest on, a Foreign Currency Security in a Specified Currency. EXCHANGE RATES AND EXCHANGE CONTROLS An investment in Foreign Currency Securities entails significant risks that are not associated with a similar investment in a security denominated in U.S. dollars. Such risks include, without limitation, the 21 possibility of significant changes in the rate of exchange between the U.S. dollar and the currency, or unit of two or more currencies, designated by the Corporation at the time of offering (the "Specified Currency") and the possibility of the imposition or modification of foreign exchange controls by either the United States or foreign governments. Such risks generally depend on economic and political events and the supply of and demand for the relevant currencies, over which the Corporation has no control. In recent years, rates of exchange between the U.S. dollar and certain foreign currencies have been highly volatile and such volatility may be expected in the future. Fluctuations in any particular exchange rate that have occurred in the past are not necessarily indicative, however, of fluctuations in the rate that may occur during the term of any Foreign Currency Security. Depreciation of the Specified Currency applicable to a Foreign Currency Security against the U.S. dollar would result in a decrease in the U.S. dollar-equivalent yield of such Foreign Currency Security, in the U.S. dollar-equivalent value of the principal repayable at maturity of such Foreign Currency Security and, generally, in the U.S. dollar-equivalent market value of such Foreign Currency Security. Governments have imposed from time to time exchange controls and may in the future impose or revise exchange controls at or prior to a Foreign Currency Security's maturity or expiration. Even if there are no exchange controls in effect with respect to a Specified Currency, it is possible that the Specified Currency for any particular Foreign Currency Security would not be available at such Foreign Currency Security's maturity or expiration due to other circumstances beyond the control of the Corporation. JUDGMENTS If an action based on Foreign Currency Securities were commenced in a court of the United States, it is likely that such court would grant judgment relating to such Foreign Currency Securities only in U.S. dollars. It is not clear, however, whether, in granting such judgment, the rate of conversion into U.S. dollars would be determined with reference to the date of default, the date on which judgment is rendered or some other date. Holders of Foreign Currency Securities would bear the risk of exchange rate fluctuations between the time the amount of the judgment is calculated and the time the applicable Trustee or Warrant Agent converts U.S. dollars to the Specified Currency for payment of the judgment. VALIDITY OF OFFERED SECURITIES The validity of the Offered Securities to which this Prospectus relates will be passed upon for the Corporation by Gordon S. Calder, Jr., Esq., a Managing Director and Counsel of Bankers, and for any underwriters or agents by Sullivan & Cromwell, New York, New York. Sullivan & Cromwell performs services for the Corporation, and may act as special tax counsel to the Corporation in connection with offerings of Offered Securities. Mr. Calder has an interest in a number of shares equal to less than .015% of the Corporation's outstanding Common Stock, par value $1.00 per share. EXPERTS The consolidated financial statements of the Corporation for the year ended December 31, 1993, appearing in the Corporation's Annual Report on Form 10-K for the year ended December 31, 1993, and incorporated by reference into this Prospectus, have been audited by Ernst & Young, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in auditing and accounting. PLAN OF DISTRIBUTION The Corporation may sell Offered Securities to one or more underwriters for public offering and sale by them or may sell Offered Securities to investors directly or through agents. Any underwriter or agent involved in the offer and sale of the Offered Securities will be named in the applicable Prospectus Supplement. 22 Underwriters may offer and sell the Offered Securities at a fixed price or prices, which may be changed, or from time to time at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The Corporation also may, from time to time, authorize firms acting as the Corporation's agents to offer and sell the Offered Securities upon the terms and conditions set forth in the applicable Prospectus Supplement. In connection with the sale of Offered Securities, underwriters may be deemed to have received compensation from the Corporation in the form of underwriting discounts or commissions and may also receive commissions from purchasers of Offered Securities for whom they may act as agents. Underwriters may sell Offered Securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions (which may be changed from time to time) from the purchasers for whom they may act as agents. Any underwriting compensation paid by the Corporation to underwriters or agents in connection with the offering of Offered Securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in the applicable Prospectus Supplement. Underwriters, dealers and agents participating in the distribution of the Offered Securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the Offered Securities may be deemed to be underwriting discounts and commissions under the Securities Act. Underwriters, dealers and agents may be entitled, under agreements with the Corporation, to indemnification against and contribution toward certain civil liabilities, including liabilities under the Securities Act, and to reimbursement by the Corporation for certain expenses. If so indicated in the applicable Prospectus Supplement, the Corporation will authorize dealers acting as the Corporation's agents to solicit offers by certain institutions to purchase Offered Securities from the Corporation at the public offering price set forth in such Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts") providing for payment and delivery on the date or dates stated in such Prospectus Supplement. Each Contract will be for an amount not less than, and the aggregate principal or face amount or number of Offered Securities sold pursuant to Contracts shall be not less nor more than, the respective amounts stated in such Prospectus Supplement. Institutions with whom Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but will in all cases be subject to the approval of the Corporation. Contracts will not be subject to any conditions except (i) the purchase by an institution of the Offered Securities covered by its Contracts shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject, and (ii) if the Offered Securities are being sold to underwriters, the Corporation shall have sold to such underwriters the total principal or face amount or number of the Offered Securities less the principal or face amount or number thereof covered by Contracts. Agents and underwriters will have no responsibility in respect of the delivery or performance of Contracts. Each series of Offered Securities will be a new issue of securities with no established trading market. Any underwriters to whom Offered Securities are sold by the Corporation for public offering and sale may make a market in such Offered Securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of or the trading markets for any Offered Securities. This Prospectus and the applicable Prospectus Supplement may also be delivered in connection with sales of Offered Securities by affiliates of the Corporation that have acquired such Offered Securities. The offer and sale of the Offered Securities will comply with the requirements of Schedule E of the By-Laws of the National Association of Securities Dealers, Inc. regarding underwriting securities of an affiliate. Certain of the underwriters or agents and their associates may be customers of, engage in transactions with, and perform services for, the Corporation in the ordinary course of business. 23 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The expenses in connection with the issuance and distribution of the securities being registered, other than underwriting compensation, are: Filing fee for registration statement........................... $172,415 Legal fees and expenses......................................... 50,000* Accounting fees and expenses.................................... 50,000* Blue sky fees and expenses...................................... 25,000* Printing and engraving fees..................................... 100,000* Trust indenture fees and expenses............................... 50,000* Warrant agent fees and expenses................................. 10,000* Rating agency fees.............................................. 100,000* NASD fees....................................................... 30,500 Listing fees and expenses....................................... 100,000* Miscellaneous................................................... 27,085 -------- Total......................................................... $715,000 ========
-------- *Estimated ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article V of the By-Laws of Bankers Trust New York Corporation provides as follows: 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 II-1 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 specific request of the corporation, evidenced by a written communication signed by the Chairman of the Board, the President or any Vice Chairman, and (ii) only if and to the extent that, after making such efforts as the Chairman of the Board, the President or any Vice Chairman 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. With certain limitations, Sections 721 through 726 of the New York Business Corporation Law permit a corporation to indemnify a director or officer made a party to an action (i) by a corporation or in its right in order to procure a judgment in its favor unless he shall have breached his duties, or (ii) other than an action by or in the right of the corporation in order to procure a judgment in its favor if such director or officer acted in good faith and in a manner he reasonably believed to be in or, in certain cases, not opposed to such corporation's best interests, and additionally, in criminal actions, has no reasonable cause to believe his conduct was unlawful. II-2 In addition, a Directors and Officers Liability and Corporation Reimbursement Policy is maintained covering the Corporation and its directors and officers for amounts, subject to policy limits, that the Corporation might be required to pay by way of indemnification to its directors or officers under its By-Laws or otherwise and for the protection of individual directors and officers from loss for which they might not be indemnified by the Corporation. Reference is made to the forms of Underwriting Agreements filed as Exhibits 1.1 and 1.2 hereto for a description of certain indemnity arrangements. ITEM 16. EXHIBITS
EXHIBIT NUMBER DESCRIPTION ------- ----------- *1.1 --Form of Underwriting Agreement for Debt Securities. *1.2 --Form of Underwriting Agreement for Warrants. **4.1 --Indenture, dated as of November 1, 1991, between the Registrant and The Chase Manhattan Bank (National Association) relating to Senior Debt Securities (filed as an Exhibit to the Registrant's Current Re- port on Form 8-K, dated November 12, 1991, file number 1-5920). **4.2 --First Supplemental Indenture, dated as of September 1, 1993, between the Registrant and The Chase Manhattan Bank (National Association) (filed as an Exhibit to the Registrant's Current Report on Form 8-K, dated October 22, 1993, file number 1-5920). **4.3 --Indenture, dated as of April 1, 1992, between the Registrant and Ma- rine Midland Bank, N.A. relating to Subordinated Debt Securities (filed as an Exhibit to the Registrant's Registration Statement on Form S-3, file number 33-50395, as filed on September 24, 1993). **4.4 --First Supplemental Indenture, dated as of January 15, 1993, between the Registrant and Marine Midland Bank, N.A. (filed as an Exhibit to the Registrant's Current Report on Form 8-K dated January 14, 1993, file number 1-5920). 4.5 --Form of Indenture relating to Subordinated Debt Securities. 4.6 --Form of Debt Warrant Agreement, including form of global Warrant Certificate. 4.7 --Form of Currency Warrant Agreement, including form of global Warrant Certificate. 4.8 --Form of Index Warrant Agreement, including form of global Warrant Certificate. 4.9 --Form of Interest Rate Warrant Agreement, including form of global Warrant Certificate. 5.1 --Opinion re: Legality. **12.1 --Computation of Consolidated Ratios of Earnings to Fixed Charges (filed as an Exhibit to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1993, file number 1-5920). 23.1 --Consent of Independent Auditors. 23.2 --Consent of Counsel (contained in the opinion filed as Exhibit 5.1 to this Registration Statement). *24.1 --Powers of Attorney. *25.1 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Chase Manhattan Bank (National Association). 25.2 --Amendment to Form T-1 Statement of Eligibility under the Trust In- denture Act of 1939 of Marine Midland Bank.
- -------- * Previously filed. ** Incorporated by reference. ITEM 17. UNDERTAKINGS. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; II-3 (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. II-4 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON THE 6TH DAY OF MAY, 1994. BANKERS TRUST NEW YORK CORPORATION /s/ Duncan P. Hennes By: ____________________________________ NAME: DUNCAN P. HENNES TITLE: SENIOR VICE PRESIDENT PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED: SIGNATURES TITLE DATE *Charles S. Sanford, Jr. Chairman of the - ------------------------------------- Board, Chief May 6, 1994 (CHARLES S. SANFORD, JR.) Executive Officer and Director (Principal Executive Officer) *Timothy T. Yates Executive Vice - ------------------------------------- President and Chief May 6, 1994 (TIMOTHY T. YATES) Financial Officer (Principal Financial Officer) *Geoffrey M. Fletcher Senior Vice - ------------------------------------- President (Principal May 6, 1994 (GEOFFREY M. FLETCHER) Accounting Officer) *George B. Beitzel Director - ------------------------------------- May 6, 1994 (GEORGE B. BEITZEL) Director - ------------------------------------- May 6, 1994 (WILLIAM R. HOWELL) *Jon M. Huntsman Director - ------------------------------------- May 6, 1994 (JON M. HUNTSMAN) *Vernon E. Jordan, Jr. Director - ------------------------------------- May 6, 1994 (VERNON E. JORDAN, JR.) II-5 SIGNATURES TITLE DATE Director - ------------------------------------- May 6, 1994 (HAMISH MAXWELL) *Donald F. McCullough Director - ------------------------------------- May 6, 1994 (DONALD F. MCCULLOUGH) *N.J. Nicholas Jr. Director - ------------------------------------- May 6, 1994 (N.J. NICHOLAS JR.) *Russell E. Palmer Director - ------------------------------------- May 6, 1994 (RUSSELL E. PALMER) *Didier Pineau-Valencienne Director - ------------------------------------- May 6, 1994 (DIDIER PINEAU-VALENCIENNE) *Eugene B. Shanks, Jr. Director - ------------------------------------- May 6, 1994 (EUGENE B. SHANKS, JR.) *Patricia C. Stewart Director - ------------------------------------- May 6, 1994 (PATRICIA C. STEWART) *George J. Vojta Director - ------------------------------------- May 6, 1994 (GEORGE J. VOJTA) /s/ Duncan P. Hennes *By_________________________________ (DUNCAN P. HENNES, ATTORNEY-IN-FACT) II-6 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION ------- ----------- *1.1 --Form of Underwriting Agreement for Debt Securities. *1.2 --Form of Underwriting Agreement for Warrants. **4.1 --Indenture, dated as of November 1, 1991, between the Registrant and The Chase Manhattan Bank (National Association) relating to Senior Debt Securities (filed as an Exhibit to the Registrant's Current Report on Form 8-K, dated November 12, 1991, file number 1-5920). **4.2 --First Supplemental Indenture, dated as of September 1, 1993, between the Registrant and The Chase Manhattan Bank (National Association) (filed as an Exhibit to the Registrant's Current Report on Form 8-K, dated October 22, 1993, file number 1-5920). **4.3 --Indenture, dated as of April 1, 1992, between the Registrant and Marine Midland Bank, N.A. relating to Subordinated Debt Securities (filed as an Exhibit to the Registrant's Registration Statement on Form S-3, file number 33-50395, as filed on September 24, 1993). **4.4 --First Supplemental Indenture, dated as of January 15, 1993, between the Registrant and Marine Midland Bank, N.A. (filed as an Exhibit to the Registrant's Current Report on Form 8-K dated January 14, 1993, file number 1-5920). 4.5 --Form of Indenture relating to Subordinated Debt Securities. 4.6 --Form of Debt Warrant Agreement, including form of global Warrant Certificate. 4.7 --Form of Currency Warrant Agreement, including form of global Warrant Certificate. 4.8 --Form of Index Warrant Agreement, including form of global Warrant Certificate. 4.9 --Form of Interest Rate Warrant Agreement, including form of global Warrant Certificate. 5.1 --Opinion re: Legality. **12.1 --Computation of Consolidated Ratios of Earnings to Fixed Charges (filed as an Exhibit to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1993, file number 1-5920). 23.1 --Consent of Independent Auditors. 23.2 --Consent of Counsel (contained in the opinion filed as Exhibit 5.1 to this Registration Statement). *24.1 --Powers of Attorney. *25.1 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Chase Manhattan Bank (National Association). 25.2 --Amendment to Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Marine Midland Bank.
- -------- * Previously filed. ** Incorporated by reference. EX-4.5 2 INDENTURE EXHIBIT 4.5 ================================================================================ BANKERS TRUST NEW YORK CORPORATION TO ......................................................... Trustee ______________ INDENTURE Dated as of ..................., 199_ ______________ ================================================================================ .............................................................. Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939: Trust Indenture Act Section Indenture Section (S)310(a)(1) .......................................... 609 (a)(2) .......................................... 609 (a)(3) .......................................... Not Applicable (a)(4) .......................................... Not Applicable (b) .......................................... 608 610 (S)311(a) .......................................... 613 (b) .......................................... 613 (S)312(a) .......................................... 701 702 (b) .......................................... 702 (c) .......................................... 702 (S)313(a) .......................................... 703 (b) .......................................... 703 (c) .......................................... 703 (d) .......................................... 703 (S)314(a) .......................................... 704 (a)(4) .......................................... 101 1004 (b) .......................................... Not Applicable (c)(1) .......................................... 102 (c)(2) .......................................... 102 (c)(3) .......................................... Not Applicable (d) .......................................... Not Applicable (e) .......................................... 102 (S)315(a) .......................................... 601 (b) .......................................... 602 (c) .......................................... 601 (d) .......................................... 601 (e) .......................................... 514 (S)316(a) .......................................... 101 (a)(1)(A).......................................... 502 512 (a)(1)(B).......................................... 513 (a)(2) .......................................... Not Applicable (b) .......................................... 508 (c) .......................................... 104 (S)317(a)(1) .......................................... 503 (a)(2) .......................................... 504 (b) .......................................... 1003 (S)318(a) .......................................... 107 ___________________ Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. TABLE OF CONTENTS __________ Page ---- Parties............................................................ 1 Recitals of the Corporation........................................ 1 ARTICLE ONE Definitions and Other Provisions of General Application Section 101. Definitions: Act................................................... 2 Affiliate............................................. 2 Authenticating Agent.................................. 2 Bankers............................................... 2 Board of Directors.................................... 2 Board Resolution...................................... 2 Business Day.......................................... 2 Commission............................................ 2 Corporate Trust Office................................ 3 corporation........................................... 3 Corporation........................................... 3 Corporation Request; Corporation Order................ 3 Covenant Defeasance................................... 3 Default............................................... 3 Defaulted Interest.................................... 3 Defeasance............................................ 3 Depositary............................................ 3 Entitled Person....................................... 3 Event of Default...................................... 3 Excess Proceeds....................................... 3 Exchange Act.......................................... 3 Existing Subordinated Indebtedness.................... 4 Expiration Date....................................... 4 Global Security....................................... 4 Holder................................................ 4 indebtedness for money borrowed....................... 4 Indenture............................................. 4 interest.............................................. 4 Interest Payment Date................................. 4 Investment Company Act................................ 5 Maturity.............................................. 5 - ---------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. Page ---- Notice of Default..................................... 5 Officers' Certificate................................. 5 Opinion of Counsel.................................... 5 Original Issue Discount Security...................... 5 Other Financial Obligations........................... 5 Outstanding........................................... 5 Paying Agent.......................................... 6 Person................................................ 6 Place of Payment...................................... 6 Predecessor Security.................................. 7 Redemption Date....................................... 7 Redemption Price...................................... 7 Regular Record Date................................... 7 Responsible Officer................................... 7 Securities............................................ 7 Securities Act........................................ 7 Security Register; Security Registrar................. 7 Senior Indebtedness................................... 7 Special Record Date................................... 8 Stated Maturity....................................... 8 Trust Indenture Act................................... 8 Trustee............................................... 8 U.S. Government Obligation............................ 8 Vice President........................................ 8 Section 102. Compliance Certificates and Opinions.................. 8 Section 103. Form of Documents Delivered to Trustee................ 9 Section 104. Acts of Holders; Record Dates......................... 9 Section 105. Notices, Etc., to Trustee and Corporation............. 12 Section 106. Notice to Holders; Waiver............................. 12 Section 107. Conflict with Trust Indenture Act..................... 12 Section 108. Effect of Headings and Table of Contents.............. 13 Section 109. Successors and Assigns................................ 13 Section 110. Separability Clause................................... 13 Section 111. Benefits of Indenture................................. 13 Section 112. Governing Law......................................... 13 Section 113. Legal Holidays........................................ 13 Section 114. Currency Conversion................................... 14 -ii- Page ---- ARTICLE TWO Security Forms Section 201. Forms Generally....................................... 14 Section 202. Form of Face of Security.............................. 15 Section 203. Form of Reverse of Security........................... 16 Section 204. Form of Legend for Global Securities.................. 21 Section 205. Form of Trustee's Certificate of Authentication....... 21 ARTICLE THREE The Securities Section 301. Amount Unlimited; Issuable in Series.................. 22 Section 302. Denominations......................................... 25 Section 303. Execution, Authentication, Delivery and Dating........ 25 Section 304. Temporary Securities.................................. 27 Section 305. Registration, Registration of Transfer and Exchange... 27 Section 306. Mutilated, Destroyed, Lost and Stolen Securities...... 29 Section 307. Payment of Interest; Interest Rights Preserved........ 30 Section 308. Persons Deemed Owners................................. 31 Section 309. Cancellation.......................................... 31 Section 310. Computation of Interest............................... 32 ARTICLE FOUR Satisfaction and Discharge Section 401. Satisfaction and Discharge of Indenture............... 32 Section 402. Application of Trust Money............................ 33 ARTICLE FIVE Remedies Section 501. Events of Default..................................... 33 Section 502. Acceleration of Maturity; Rescission and Annulment.... 34 -iii- Page ---- Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee............................ 35 Section 504. Trustee May File Proofs of Claim...................... 36 Section 505. Trustee May Enforce Claims Without Possession of Securities..................................... 36 Section 506. Application of Money Collected........................ 37 Section 507. Limitation on Suits................................... 37 Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.............................. 38 Section 509. Restoration of Rights and Remedies.................... 38 Section 510. Rights and Remedies Cumulative........................ 38 Section 511. Delay or Omission Not Waiver.......................... 38 Section 512. Control by Holders.................................... 39 Section 513. Waiver of Past Defaults............................... 39 Section 514. Undertaking for Costs................................. 40 Section 515. Waiver of Usury, Stay or Extension Laws............... 40 ARTICLE SIX The Trustee Section 601. Certain Duties and Responsibilities................... 40 Section 602. Notice of Defaults.................................... 40 Section 603. Certain Rights of Trustee............................. 41 Section 604. Not Responsible for Recitals or Issuance of Securities 42 Section 605. May Hold Securities................................... 42 Section 606. Money Held in Trust................................... 42 Section 607. Compensation and Reimbursement........................ 42 Section 608. Conflicting Interests................................. 43 Section 609. Corporate Trustee Required; Eligibility............... 43 Section 610. Resignation and Removal; Appointment of Successor..... 43 Section 611. Acceptance of Appointment by Successor................ 45 Section 612. Merger, Conversion, Consolidation or Succession to Business....................................... 46 Section 613. Preferential Collection of Claims Against Corporation. 46 Section 614. Appointment of Authenticating Agent................... 46 -iv- Page ---- ARTICLE SEVEN Holders' Lists and Reports by Trustee and Corporation Section 701. Corporation to Furnish Trustee Names and Addresses of Holders........................................ 48 Section 702. Preservation of Information; Communications to Holders........................................ 48 Section 703. Reports by Trustee.................................... 48 Section 704. Reports by Corporation................................ 49 ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease Section 801. Corporation May Consolidate, Etc., Only on Certain Terms..................................... 49 Section 802. Successor Substituted................................. 49 ARTICLE NINE Supplemental Indentures Section 901. Supplemental Indentures Without Consent of Holders.... 50 Section 902. Supplemental Indentures with Consent of Holders....... 51 Section 903. Execution of Supplemental Indentures.................. 52 Section 904. Effect of Supplemental Indentures..................... 52 Section 905. Conformity with Trust Indenture Act................... 52 Section 906. Reference in Securities to Supplemental Indentures.... 53 Section 907. Subordination Unimpaired.............................. 53 ARTICLE TEN Covenants Section 1001. Payment of Principal, Premium and Interest............ 53 Section 1002. Maintenance of Office or Agency....................... 53 Section 1003. Money for Securities Payments to Be Held in Trust..... 54 Section 1004. Statement by Officers as to Default................... 55 -v- Page ---- Section 1005. Existence............................................. 55 Section 1006. Waiver of Certain Covenants........................... 55 ARTICLE ELEVEN Redemption of Securities Section 1101. Applicability of Article.............................. 56 Section 1102. Election to Redeem; Notice to Trustee................. 56 Section 1103. Selection by Trustee of Securities to Be Redeemed..... 56 Section 1104. Notice of Redemption.................................. 57 Section 1105. Deposit of Redemption Price........................... 58 Section 1106. Securities Payable on Redemption Date................. 58 Section 1107. Securities Redeemed in Part........................... 58 ARTICLE TWELVE Sinking Funds Section 1201. Applicability of Article.............................. 59 Section 1202. Satisfaction of Sinking Fund Payments with Securities. 59 Section 1203. Redemption of Securities for Sinking Fund............. 59 ARTICLE THIRTEEN Defeasance and Covenant Defeasance Section 1301. Corporation's Option to Effect Defeasance or Covenant Defeasance............................... 60 Section 1302. Defeasance and Discharge.............................. 60 Section 1303. Covenant Defeasance................................... 61 Section 1304. Conditions to Defeasance or Covenant Defeasance....... 61 Section 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions..... 63 Section 1306. Reinstatement......................................... 63 -vi- Page ---- ARTICLE FOURTEEN Subordination of Securities Section 1401. Securities Subordinate to Senior Indebtedness......... 64 Section 1402. Payment Over of Proceeds Upon Dissolution, Etc........ 64 Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of Securities........................ 66 Section 1404. No Payment When Senior Indebtedness in Default........ 66 Section 1405. Payment Permitted If No Default....................... 67 Section 1406. Subrogation to Rights of Holders of Senior Indebtedness...................................... 67 Section 1407. Provisions Solely to Define Relative Rights........... 67 Section 1408. Authorization of Trustee to Effectuate Subordination of Securities....................... 68 Section 1409. No Waiver of Subordination Provisions................. 68 Section 1410. Notice to Trustee; Trustee Not Charged with Knowledge of Prohibition.......................... 69 Section 1411. Reliance on Judicial Order or Certificate of Liquidating Agent................................. 69 Section 1412. No Fiduciary Duty to Holders of Senior Indebtedness of Corporation.................................... 70 Section 1413. Right of Trustee to Hold Senior Indebtedness of Corporation....................................... 70 Section 1414. Article Applicable to Paying Agents................... 70 Section 1415. Securities to Rank Pari Passu with Existing Subordinated Indebtedness; Payment of Proceeds in Certain Cases..................................... 70 Testimonium......................................................... 72 Signatures and Seals................................................ 73 Acknowledgements.................................................... 74 -vii- INDENTURE, dated as of ................, 199.., between Bankers Trust New York Corporation, a corporation duly organized and existing under the laws of the State of New York (herein called the "Corporation"), having its principal office at 280 Park Avenue, New York, New York 10017, and .............................., a ........................... duly organized and existing under the laws of ........, as Trustee (herein called the "Trustee"). Recitals of the Corporation The Corporation has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided. All things necessary to make this Indenture a valid agreement of the Corporation, in accordance with its terms, have been done. Now, Therefore, This Indenture Witnesseth: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows: ARTICLE ONE Definitions and Other Provisions of General Application Section 101. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles; (4) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; and (5) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. "Act", when used with respect to any Holder, has the meaning specified in Section 104. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series. Each reference herein to authentication by the Trustee includes authentication by an Authentication Agent. "Bankers" means Bankers Trust Company, a New York State banking corporation, and its successors and assigns. "Board of Directors" means the board of directors of the Corporation or the Executive Committee of the board of directors of the Corporation (or any other committee of the board of directors of the Corporation performing similar functions) or, for purposes of the Indenture, a committee designated by the board of directors of the Corporation, comprised of two or more members of the board of directors of the Corporation or officers of the Corporation, or both. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Corporation to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day", when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. -2- "Corporate Trust Office" means the principal office of the Trustee in ................................................................ at which at any particular time its corporate trust business shall be administered. "corporation" means a corporation, association, company, joint-stock company or business trust. "Corporation" means the Person named as the "Corporation" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Corporation" shall mean such successor Person. "Corporation Request" or "Corporation Order" means a written request or order signed in the name of the Corporation by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Covenant Defeasance" has the meaning specified in Section 1303. "Default" shall mean, with respect to Securities of any series, any Event of Default with respect to such series and, to the extent not included in the foregoing, any of the events specified in Clauses (1), (2) and (3) of Section 503, in each case not including periods of grace, if any, provided for therein or in the terms of any Securities and irrespective of the giving of the notice, if any, specified therein or in the terms of any Securities. "Defaulted Interest" has the meaning specified in Section 307. "Defeasance" has the meaning specified in Section 1302. "Depositary" means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301. "Entitled Person" means any Person entitled to payment pursuant to the terms of Other Financial Obligations. "Event of Default" has the meaning specified in Section 501. "Excess Proceeds" has the meaning specified in Section 1415(c). "Exchange Act" means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time. "Existing Subordinated Indebtedness" means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, the Corporation's 7.50% Convertible -3- Capital Securities due 2033, Subordinated LIBOR/CMT Floating Rate Debentures due 2003, 7 5/8% Convertible Capital Securities due 2033, Subordinated Floating Rate Notes due 2005, Subordinated Constant Maturity Treasury Floating Rate Debentures due 2003, 7.25% Subordinated Debentures due January 15, 2003, Floating Rate Subordinated Notes due 2002, 7-1/8% Subordinated Debentures due July 31, 2002, 8-1/8% Subordinated Debentures due May 15, 2002, 7.50% Subordinated Debentures due January 15, 2002, 9.00% Subordinated Debentures due August 1, 2001, 9.40% Subordinated Debentures due March 1, 2001, 9.50% Subordinated Debentures due June 14, 2000, Zero Coupon Subordinated Yen Notes due 1997-2004, Floating Rate Subordinated Notes due March 2000, 10.20% Subordinated Debentures due March 15, 1999, 9.20% Subordinated Capital Notes due July 15, 1999, Subordinated Money Market Capital Notes, Series A, B and C due 1999, 8% Subordinated Debentures due March 15, 1997, 8 1/4% Subordinated Debentures due July 2, 1996, and the Corporation's guaranty in respect of the 6.90% Subordinated Notes due March 1, 1995 of Bankers. "Expiration Date" has the meaning specified in Section 104. "Global Security" means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities). "Holder" means a Person in whose name a Security is registered in the Security Register. "indebtedness for money borrowed" as used in the definitions of "Other Financial Obligations" and "Senior Indebtedness" means any obligation of, or any obligation guaranteed by, the Corporation for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, and any deferred obligation for the payment of the purchase price of property or assets. "Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and to govern this instrument and any such supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 301. "interest", when used with respect to an Original Issue Discount Security that by its terms bears interest only after Maturity, means interest payable after Maturity. "Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security. "Investment Company Act" means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time. -4- "Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise. "Notice of Default" means a written notice of the kind specified in Section 501(4). "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Corporation, and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who may be counsel to or an employee of the Corporation. "Original Issue Discount Security" means any Security that is issued at a price lower than the amount payable at the Stated Maturity thereof and that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. "Other Financial Obligations" means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, all obligations of the Corporation to make payment pursuant to the terms of financial instruments, such as (i) securities contracts and foreign currency exchange contracts, (ii) derivative instruments, such as swap agreements (including interest rate and foreign exchange rate swap agreements), cap agreements, floor agreements, collar agreements, interest rate agreements, foreign exchange rate agreements, options, commodity futures contracts, commodity options contracts, and (iii) financial instruments similar to those referred to in (i) and (ii) above, other than (A) obligations on account of Senior Indebtedness and (B) obligations on account of indebtedness for money borrowed ranking pari passu with or subordinate to the Securities. "Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Corporation) in trust or set aside and segregated in trust by the Corporation (if the Corporation shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; -5- (3) Securities as to which Defeasance has been effected pursuant to Section 1302; and (4) Securities that have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Corporation; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security that shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units that shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided in Section 114 or, if different, as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Corporation or any other obligor upon the Securities or any Affiliate of the Corporation or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities that the Trustee knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Corporation or any other obligor upon the Securities or any Affiliate of the Corporation or of such other obligor. "Paying Agent" means any Person authorized by the Corporation to pay the principal of or any premium or interest on any Securities on behalf of the Corporation. "Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under -6- Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "Registered Security" means any Security that is registered as to principal and interest, if any. "Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301. "Responsible Officer", when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture. "Securities Act" means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time. "Security Register" and "Security Registrar" have the respective meanings specified in Section 305. "Senior Indebtedness" of the Corporation means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, the principal of, premium, if any, and interest (including interest accruing subsequent to the commencement of any proceeding for the bankruptcy or reorganization of the Corporation under applicable bankruptcy, insolvency or similar law now or hereafter in effect) on (a) all indebtedness for money borrowed, whether outstanding on the date of execution of this Indenture or thereafter created, assumed or incurred, except such indebtedness as is by its terms expressly stated to be not superior in right of payment to the Securities or to rank pari passu with the Securities or is identified in a Board Resolution or any indenture supplemental hereto as not superior in right of payment or to rank pari passu with the -7- Securities and (b) any deferrals, renewals or extensions of any such indebtedness for money borrowed; provided, however, that Senior Indebtedness shall not include any obligations on account of Existing Subordinated Indebtedness. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307. "Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series. "U.S. Government Obligation" has the meaning specified in Section 1304. "Vice President", when used with respect to the Corporation or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president". Section 102. Compliance Certificates and Opinions. Upon any application or request by the Corporation to the Trustee to take any action under any provision of this Indenture, the Corporation shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by an officer of the Corporation, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include, (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; -8- (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 103. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Corporation may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such officer's certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Corporation stating that the information with respect to such factual matters is in the possession of the Corporation, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Section 104. Acts of Holders; Record Dates. Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when -9- such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Corporation. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Corporation, if made in the manner provided in this Section. The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient. The ownership of Securities shall be proved by the Security Register. Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Corporation in reliance thereon, whether or not notation of such action is made upon such Security. The Corporation may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Corporation may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Corporation from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Corporation, at its own expense, shall -10- cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106. The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Corporation's expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Corporation in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106. With respect to any record date set pursuant to this Section, the party hereto that sets such record date may designate any day as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto that set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date. Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. -11- Section 105. Notices, Etc., to Trustee and Corporation. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Corporation shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: ................., or (2) the Corporation by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Corporation addressed to it at the address of its principal office specified in the first paragraph of this instrument to the attention of the Office of the Secretary or at any other address previously furnished in writing to the Trustee by the Corporation. Section 106. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder's address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. Section 107. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter -12- provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. Section 108. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 109. Successors and Assigns. All covenants and agreements in this Indenture by the Corporation shall bind its successors and assigns, whether so expressed or not. Section 110. Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 111. Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders and, subject to Section 907, holders of Senior Indebtedness and Entitled Persons in respect of Other Financial Obligations, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 112. Governing Law. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York. Section 113. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security that specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest -13- Payment Date or Redemption Date, or at Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. Section 114. Currency Conversion. In the event that the principal amount of a Security is denominated in units of a currency or currencies other than U.S. dollars or units of two or more currencies, and it is necessary to determine as of any date the U.S. dollar value of such Security, the principal amount of such Security shall be deemed to be the amount of U.S. dollars that could have been purchased by the principal amount of the units of the currency or currencies, or units of two or more currencies, in which such Security is denominated based, except as otherwise set forth in the Board Resolution or Supplemental Indenture establishing such series of Securities, on the average of the mean of the buying and selling spot rates in effect at 11:00 A.M., New York City time, in The City of New York on the date of such determination or, if such date is not a Business Day, on the next succeeding Business Day, quoted by three banks who are members of the New York Clearing House Association (other than Bankers) chosen by the Corporation. ARTICLE TWO Security Forms Section 201. Forms Generally. The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Corporation and delivered to the Trustee at or prior to the delivery of the Corporation Order contemplated by Section 303 for the authentication and delivery of such Securities. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. -14- Section 202. Form of Face of Security. [Insert any legend required by the Internal Revenue Code and the regulations thereunder.] .......................................................... .......................................................................... No. ......... $ ........ Bankers Trust New York Corporation, a corporation duly organized and existing under the laws of the State of New York (herein called the "Corporation", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ..............................................., or registered assigns, the principal sum of ...................................... Dollars on ........................................................ [if the Security is to bear interest prior to Maturity, insert -- , and to pay interest thereon from ............. or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on ............ and ............ in each year, commencing ........., at the rate of ....% per annum, until the principal hereof is paid or made available for payment [if applicable, insert -- , provided that any principal and premium, and any such installment of interest, that is overdue shall bear interest at the rate of ...% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the ....... or ....... (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture]. [If the Security is not to bear interest prior to Maturity, insert -- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of ....% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any -15- overdue principal or premium shall be payable on demand. [Any such interest on overdue principal or premium that is not paid on demand shall bear interest at the rate of ......% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]] Payment of the principal of (and premium, if any) and [if applicable, insert - -- any such] interest on this Security will be made at the office or agency of the Corporation maintained for that purpose in ............, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if applicable, insert -- ; provided, however, that at the option of the Corporation payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register]. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. In Witness Whereof, the Corporation has caused this instrument to be duly executed under its corporate seal. Dated: ...................................................... By................................................... Attest: ......................................... Section 203. Form of Reverse of Security. This Security is one of a duly authorized issue of securities of the Corporation (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of ............... (herein called the "Indenture", which term shall have the meaning assigned to it in such instrument), between the Corporation and ..................., as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities -16- thereunder of the Corporation, the Trustee[, the holders of Senior Debt] and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert -- , limited in aggregate principal amount to $...........]. [If applicable, insert -- The Securities of this series are subject to redemption upon not less than 30 days' notice by mail, [if applicable, insert -- (1) on ........... in any year commencing with the year ...... and ending with the year ...... through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert -- on or after .........., 19..], as a whole or in part, at the election of the Corporation, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert -- on or before ..............., ...%, and if redeemed] during the 12-month period beginning ............. of the years indicated,
Redemption Redemption Year Price Year Price ------ ---------- ---- ----------
and thereafter at a Redemption Price equal to .....% of the principal amount, together in the case of any such redemption [if applicable, insert -- (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.] [If applicable, insert -- The Securities of this series are subject to redemption upon not less than 30 days' notice by mail, (1) on ............ in any year commencing with the year .... and ending with the year .... through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert -- on or after ............], as a whole or in part, at the election of the Corporation, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning ............ of the years indicated, -17-
Redemption Price For Redemption Redemption Price For Through Operation Redemption Otherwise of the Than Through Operation Year Sinking Fund of the Sinking Fund ------ ----------------- ----------------------
and thereafter at a Redemption Price equal to .....% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.] [If applicable, insert -- Notwithstanding the foregoing, the Corporation may not, prior to ............., redeem any Securities of this series as contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Corporation (calculated in accordance with generally accepted financial practice) of less than .....% per annum.] [If applicable, insert -- The sinking fund for this series provides for the redemption on ............ in each year beginning with the year ....... and ending with the year ...... of [if applicable, insert -- not less than $.......... ("mandatory sinking fund") and not more than] $......... aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Corporation otherwise than through [if applicable, insert -- mandatory] sinking fund payments may be credited against subsequent [if applicable, insert -- mandatory] sinking fund payments otherwise required to be made [if applicable, insert -- , in the inverse order in which they become due].] [If the Security is subject to redemption of any kind, insert -- In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.] The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, agrees that -18- each holder of Senior Indebtedness, whether created or acquired before or after the issuance of the Securities, shall be deemed conclusively to have relied on such provisions in acquiring, or in continuing to hold, such Senior Indebtedness. The Indenture also provides that if, upon the occurrence of certain events of bankruptcy or insolvency relating to the Corporation, there remains, after giving effect to such subordination provisions, any amount of cash, property or securities available for payment or distribution in respect of Securities (as defined in the Indenture, "Excess Proceeds"), and if, at such time, any Entitled Person has not received payment in full of all amounts due or to become due on or in respect of Other Financial Obligations, then such Excess Proceeds shall first be applied to pay or provide for the payment in full of such Other Financial Obligations before any payment or distribution may be made in respect of Securities. This Security is also issued subject to the provisions of the Indenture regarding payments to Entitled Persons in respect of Other Financial Obligations. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination of this Security and payment of Excess Proceeds as provided in the Indenture, and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. [For purposes of this Security, Existing Subordinated Indebtedness includes, in addition to that indebtedness listed in the Indenture, the following: [if subordinated securities have been issued since the date of the Indenture, insert their names here].] [If applicable, insert -- The Indenture contains provisions for defeasance at any time of [the entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security] [, in each case] upon compliance with certain conditions set forth in the Indenture.] [If the Security is not an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.] [If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Corporation's obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.] The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders of the Securities of each series to be affected under the Indenture -19- at any time by the Corporation and the Trustee with the consent of the Holders of 66 2/3% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Corporation with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. "Events of Default" include any of certain events involving a bankruptcy, insolvency or reorganization of the Corporation, and do not include defaults in the payment of principal of, or premium or interest on, this Security. As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Corporation in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of $....... and any integral multiple thereof. As provided in the -20- Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any such agent shall be affected by notice to the contrary. All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture. Section 204. Form of Legend for Global Securities. Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form: This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for a Security registered, and no transfer of this Security in whole or in part may be registered, in the name of any Person other than such Depositary or a nominee thereof, except in the limited circumstances described in the Indenture. Section 205. Form of Trustee's Certificate of Authentication. The Trustee's certificates of authentication shall be in substantially the following form: -21- This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. .........................................., As Trustee By......................................... Authorized Officer or, if an Authenticating Agent has been appointed pursuant to Section 614, in substantially the following form: .........................................., As Trustee By......................................... Authenticating Agent By......................................... Authorized Officer ARTICLE THREE The Securities Section 301. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided, in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, (1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series); (2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 -22- and except for any Securities that, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder); (3) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest; (4) the date or dates on which the principal of any Securities of the series is payable; (5) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date; (6) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable; (7) the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Corporation and, if other than by a Board Resolution, the manner in which any election by the Corporation to redeem the Securities shall be evidenced; (8) the obligation, if any, of the Corporation to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable; (10) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined; (11) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and, if other than as set forth in Section 114, the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of "Outstanding" in Section 101; (12) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Corporation or the Holder thereof, in one or -23- more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined); (13) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; (14) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount that shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof that shall be due and payable upon any Maturity other than the Stated Maturity or that shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined); (15) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Corporation to defease such Securities shall be evidenced; (16) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends that shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 204 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof; (17) any addition to or change in the Events of Default that applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502; (18) the place or places at which, the period or periods within which, the price or prices at which and the terms and conditions, if any, upon which the Securities may be exchanged for or converted into the Corporation's common stock or preferred stock; (19) any addition to or change in the covenants set forth in Article Ten that applies to Securities of the series; -24- (20) whether any different subordination provisions, including a different definition of any or all of the terms "Senior Indebtedness", "Entitled Persons", "Existing Subordinated Indebtedness" or "Other Financial Obligations", shall apply to the securities of such series; and (21) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)). All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers' Certificate referred to above or in any such indenture supplemental hereto. If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Corporation and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series. The Securities shall be subordinated in right of payment to Senior Debt as provided in Article Fourteen. The Securities shall not be superior in right of payment to, and shall rank pari passu with, all indebtedness of the Corporation issued pursuant to its Indenture, dated as of November 1, 1991, as amended by the First Supplemental Indenture thereto, dated as of January 15, 1993 and as further modified amended or supplemented from time to time, between the Corporation and Marine Midland Bank, N.A., as Trustee, provided that the provisions of Article Fourteen of such indenture are applicable to such indebtedness, and [list additional pari passu subordinated indebtedness]. Section 302. Denominations. The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof. Section 303. Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Corporation by its Chairman of the Board, its President or one of its Vice Presidents, under its corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Corporation shall bind the Corporation, notwithstanding -25- that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. At any time and from time to time after the execution and delivery of this Indenture, the Corporation may deliver Securities of any series executed by the Corporation to the Trustee for authentication, together with a Corporation Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Corporation Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating, (1) if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture; (2) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Corporation in the manner and subject to any conditions specified in such Opinion of Counsel, will 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. If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 301 or the Corporation Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated the date of its authentication. No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of -26- authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Corporation, and the Corporation shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture. Section 304. Temporary Securities. Pending the preparation of definitive Securities of any series, the Corporation may execute, and upon Corporation Order the Trustee shall authenticate and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. If temporary Securities of any series are issued, the Corporation will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Corporation in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Corporation shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor. Section 305. Registration, Registration of Transfer and Exchange. The Corporation shall cause to be kept at an office or agency to be maintained by the Corporation in accordance with Section 1002 a register (the register maintained in such office and in any other office or agency of the Corporation in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Corporation shall provide for the registration of Securities and of transfers of Securities. Bankers is hereby appointed "Security Registrar" for the purpose of registering Securities and transfers of Securities as herein provided. -27- Upon surrender for registration of transfer of any Security of a series at the office or agency of the Corporation in a Place of Payment for that series, the Corporation shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Corporation shall execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive. All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Corporation, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Corporation or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed, by the Holder thereof or the Holder's attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer. If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Corporation 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. The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities: (1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. -28- (2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary has notified the Corporation that it is unwilling or unable to continue as Depositary for such Global Security or if at any time it has ceased to be a clearing agency registered under the Exchange Act at a time when it is required to be so registered in order to act as Depositary, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301. (3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct. (4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof. Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Corporation shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Corporation and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Corporation or the Trustee that such Security has been acquired by a bona fide purchaser, the Corporation shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Corporation in its discretion may, instead of issuing a new Security, pay such Security. Upon the issuance of any new Security under this Section, the Corporation may require the payment of a sum sufficient to cover any tax or other governmental charge -29- that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Corporation, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. Section 307. Payment of Interest; Interest Rights Preserved. Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Any interest on any Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Corporation, at its election in each case, as provided in Clause (1) or (2) below: (1) The Corporation may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Corporation shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Corporation shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Corporation of such Special Record Date and, in the name and at the expense of the Corporation, shall cause notice of the proposed payment of such Defaulted Interest and the Special -30- Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2). (2) The Corporation may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Corporation to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security. Section 308. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 307) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Corporation, the Trustee nor any agent of the Corporation or the Trustee shall be affected by notice to the contrary. Section 309. Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Corporation may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Corporation may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder that the Corporation has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Corporation Order. -31- Section 310. Computation of Interest. Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. ARTICLE FOUR Satisfaction and Discharge Section 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Corporation Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Corporation, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (1) either (A) all Securities theretofore authenticated and delivered (other than (i) Securities that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Corporation and thereafter repaid to the Corporation or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or (B) all such Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity within one year, or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation, and the Corporation, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (2) the Corporation has paid or caused to be paid all other sums payable hereunder by the Corporation; and -32- (3) the Corporation has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Corporation to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive. Section 402. Application of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Corporation acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee. ARTICLE FIVE Remedies Section 501. Events of Default. The occurrence of any of the following events shall constitute an "Event of Default" with respect to any particular series of Securities unless such event is specifically deleted or modified in the Board Resolution or supplemental indenture authorizing that series (whatever the reason for such Event of Default and whether it shall be occasioned by the provisions of Article Fourteen or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Corporation a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Corporation under the Federal Bankruptcy Act or any other similar applicable Federal or State law, and such decree or order shall have continued undischarged and unstayed for a period of 60 days; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation or substantially all of its property (other than the appointment of a conservator with respect to Bankers or any other depository institution subsidiary of the Corporation insured by the Federal Deposit Insurance Corporation or any successor -33- agency), or for the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of 60 days; or (2) the Corporation shall institute proceedings to be adjudicated a bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under the Federal Bankruptcy Act or any other similar applicable Federal or State law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or substantially all of its property (other than the appointment of a conservator with respect to Bankers or any other depository institution subsidiary of the Corporation insured by the Federal Deposit Insurance Corporation or any successor agency), or shall make an assignment for the benefit of creditors; or (3) any other Event of Default provided with respect to Securities of that series. Section 502. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Corporation (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Corporation and the Trustee, may rescind and annul such declaration and its consequences if (1) the Corporation has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue interest on all Securities of that series, (B) the principal of (and premium, if any, on) any Securities of that series that have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and -34- (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and (2) all Defaults with respect to Securities of that series, other than the non-payment of the principal of Securities of that series that have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent Default or impair any right consequent thereon. Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Corporation covenants that if (1) default is made in the payment of any interest or mandatory sinking fund payment on any Security when such interest or mandatory sinking fund payment becomes due and payable and such Default continues for a period of 30 days, (2) default is made in the payment (other than any mandatory sinking fund payment) of the principal of (or premium, if any, on) any Security when due and payable, whether at the Maturity thereof or by declaration or otherwise, or (3) default is made in the performance of any covenant of the Corporation in this Indenture or in the terms of the Securities of a series (other than a covenant a Default in whose performance is specifically addressed elsewhere in this Section or in the terms of the Securities of such series), and such Default continues for a period of 60 days after there has been given, by registered or certified mail to the Corporation by the Trustee or to the Corporation and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities of any affected series, a written notice specifying such Default and requiring that it be remedied, the Corporation will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If a Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the -35- Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Section 504. Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Corporation (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607. No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee. Section 505. Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. Section 506. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of -36- the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: First: To the payment of all amounts due the Trustee under Section 607; and Second: Subject to Article Fourteen, to the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively. Section 507. Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) such Holder has previously given written notice to the Trustee of a continuing Default with respect to the Securities of that series; (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. -37- Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. Section 509. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Corporation, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. Section 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Default shall impair any such right or remedy or constitute a waiver of any such Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. -38- Section 512. Control by Holders. The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that (1) such direction shall not be in conflict with any rule of law or with this Indenture, (2) the Trustee shall not determine that the action so directed would be unjustly prejudicial to Holders not taking part in such direction, and (3) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Section 513. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past Default hereunder with respect to such series and its consequences, except a default (1) in the payment of the principal of or any premium or interest on any Security of such series, or (2) in respect of a covenant or provision hereof that under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. Section 514. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Corporation. -39- Section 515. Waiver of Usury, Stay or Extension Laws. The Corporation covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Corporation (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE SIX The Trustee Section 601. Certain Duties and Responsibilities. The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 602. Notice of Defaults. If a Default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such Default as and to the extent provided by the Trust Indenture Act. Section 603. Certain Rights of Trustee. Subject to the provisions of Section 601: (1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; -40- (2) any request or direction of the Corporation mentioned herein shall be sufficiently evidenced by a Corporation Request or Corporation Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution; (3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction; (6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Corporation, personally or by agent or attorney; and (7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. Section 604. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Corporation, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Corporation of Securities or the proceeds thereof. -41- Section 605. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Corporation, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Corporation with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. Section 606. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Corporation. Section 607. Compensation and Reimbursement. The Corporation agrees (1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. Section 608. Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series [or a trustee under -- list -42- here any prior indentures between the Corporation and the Trustee that have not been satisfied and discharged and that may be excluded by the proviso to Section 310(b)(1) of the Trust Indenture Act]. Section 609. Corporate Trustee Required; Eligibility. There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Section 610. Resignation and Removal; Appointment of Successor. No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611. The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Corporation. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Corporation. If at any time: (1) the Trustee shall fail to comply with Section 608 after written request therefor by the Corporation or by any Holder who has been a bona fide Holder of a Security for at least six months, or (2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Corporation or by any such Holder, or -43- (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the Corporation by a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees. If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Corporation, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Corporation and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Corporation. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Corporation or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. The Corporation shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. Section 611. Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Trustee an instrument accepting such -44- appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Corporation or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Corporation, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and that (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Corporation or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Upon request of any such successor Trustee, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be. No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. -45- Section 612. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. Section 613. Preferential Collection of Claims Against Corporation. If and when the Trustee shall be or become a creditor of the Corporation (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Corporation (or any such other obligor). Section 614. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities that shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Corporation and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such -46- Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Corporation. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Corporation. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent that shall be acceptable to the Corporation and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607. Bankers is initially designated as the Authenticating Agent for the Securities. ARTICLE SEVEN Holders' Lists and Reports by Trustee and Corporation Section 701. Corporation to Furnish Trustee Names and Addresses of Holders. The Corporation will furnish or cause to be furnished to the Trustee, not more than 60 days after every other quarter-annual interest payment or each semi-annual interest payment, as the case may be, where such interest payments are to be made, and at such other times as the Trustee may request in writing, within 30 days after receipt by the Corporation of any such request, a list in such form as the Trustee may reasonably require containing all information in the possession or control of the Corporation, or any of its Paying Agents other than the Trustee, as to the names and addresses of the Holders -47- of Securities obtained since the date as of which the next previous list, if any, was furnished. Section 702. Preservation of Information; Communications to Holders. The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. Every Holder of Securities, by receiving and holding the same, agrees with the Corporation and the Trustee that neither the Corporation nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. Section 703. Reports by Trustee. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Corporation. The Corporation will notify the Trustee when any Securities are listed on any stock exchange. Section 704. Reports by Corporation. The Corporation shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same are so required to be filed with the Commission. -48- ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease Section 801. Corporation May Consolidate, Etc., Only on Certain Terms. The Corporation covenants that it will not merge or consolidate with any other corporation or sell or convey all or substantially all of its assets to any Person, firm or corporation, except that the Corporation may merge or consolidate with, or sell or convey all or substantially all of its assets to, any other corporation, provided that (i) either the Corporation shall be the continuing corporation, or the successor corporation (if other than the Corporation) shall be a corporation organized and existing under the laws of the United States of America or a State thereof and such corporation shall expressly assume the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Corporation by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such corporation, and (ii) the Corporation or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition. Section 802. Successor Substituted. Upon any consolidation of the Corporation with, or merger of the Corporation into, any other Person or any conveyance, transfer or lease of the properties and assets of the Corporation substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Corporation is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Corporation under this Indenture with the same effect as if such successor Person had been named as the Corporation herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities. ARTICLE NINE Supplemental Indentures Section 901. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Corporation, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or -49- more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another Person to the Corporation and the assumption by any such successor of the covenants of the Corporation herein and in the Securities; or (2) to add to the covenants of the Corporation for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Corporation; or (3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or (4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or (5) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (A) shall neither (i) 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 (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or (6) to secure the Securities; or (7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or (9) subject to Section 907, to add to, change or eliminate any of the provisions of Article Fourteen in respect of one or more series of Securities, including Outstanding Securities, provided that any such addition, change or elimination shall not adversely affect the interests of the Holders of Outstanding Securities of any series in any material respect; or -50- (10) to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (10) shall not adversely affect the interests of the Holders of Securities of any series. Section 902. Supplemental Indentures With Consent of Holders. With the consent of the Holders of not less than 66 2/3% in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Corporation and the Trustee, the Corporation, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby, (1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this Indenture with respect to the subordination of the Securities in a manner adverse to the Holders, or (2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain Defaults hereunder and their consequences) provided for in this Indenture, or (3) modify any of the provisions of this Section, Section 513 or Section 1006, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1006, or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(8). -51- A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one or more particular series of Securities, or that modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Section 903. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Section 904. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. Section 905. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act. Section 906. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Corporation shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Corporation, to any such supplemental indenture may be prepared and executed by the Corporation and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. -52- Section 907. Subordination Unimpaired. The provisions of Section 111 notwithstanding, no provision in any supplemental indenture that affects the superior position of the holders of Senior Indebtedness shall be effective against any holder of Senior Indebtedness, unless such holder shall have consented thereto. Notwithstanding any provision in this Indenture or otherwise, the rights of Entitled Persons in respect of Other Financial Obligations under this Indenture and otherwise in respect of the Securities or any series of the Securities may, at any time and from time to time, be modified in any respect or eliminated without the consent of any Entitled Person in respect of Other Financial Obligations. ARTICLE TEN Covenants Section 1001. Payment of Principal, Premium and Interest. The Corporation covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. Section 1002. Maintenance of Office or Agency. The Corporation will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Corporation in respect of the Securities of that series and this Indenture may be served. The Corporation will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Corporation shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Corporation hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Corporation may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Corporation of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Corporation will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. -53- Section 1003. Money for Securities Payments to Be Held in Trust. If the Corporation shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. Whenever the Corporation shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Corporation will promptly notify the Trustee of its action or failure so to act. The Corporation will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any Default by the Corporation (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series. The Corporation may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Corporation Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Corporation or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Corporation or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or then held by the Corporation, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Corporation on Corporation Request, or (if then held by the Corporation) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Corporation for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Corporation as trustee thereof, shall thereupon cease. -54- Section 1004. Statement by Officers as to Default. The Corporation will deliver to the Trustee, within 120 days after the end of each fiscal year of the Corporation ending after the date hereof, an Officers' Certificate, stating whether or not to the best knowledge of the signers thereof the Corporation is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Corporation shall be in default, specifying all such Defaults and the nature and status thereof of which they may have knowledge. Section 1005. Existence. Subject to Article Eight, the Corporation will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Corporation shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Corporation and that the loss thereof is not disadvantageous in any material respect to the Holders. Section 1006. Waiver of Certain Covenants. Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Corporation may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such series or in any of Sections 1001 to 1005, inclusive, if before the time for such compliance the Holders of at least 66 2/3% in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Corporation and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. -55- ARTICLE ELEVEN Redemption of Securities Section 1101. Applicability of Article. Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article. Section 1102. Election to Redeem; Notice to Trustee. The election of the Corporation to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Corporation of less than all the Securities of any series (including any such redemption affecting only a single Security), the Corporation shall, at least 60 days prior to the Redemption Date fixed by the Corporation (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Corporation shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction. Section 1103. Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence. -56- The Trustee shall promptly notify the Corporation in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed. The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities that has been or is to be redeemed. Section 1104. Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at such Holder's address appearing in the Security Register. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed, (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date, (5) the place or places where each such Security is to be surrendered for payment of the Redemption Price, and (6) that the redemption is for a sinking fund, if such is the case. Notice of redemption of Securities to be redeemed at the election of the Corporation shall be given by the Corporation or, at the Corporation's request, by the Trustee in the name and at the expense of the Corporation and shall be irrevocable. -57- Section 1105. Deposit of Redemption Price. Prior to any Redemption Date, the Corporation shall deposit with the Trustee or with a Paying Agent (or, if the Corporation is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities that are to be redeemed on that date. Section 1106. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Corporation shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Corporation at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. Section 1107. Securities Redeemed in Part. Any Security that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Corporation or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Corporation and the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing), and the Corporation shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. -58- ARTICLE TWELVE Sinking Funds Section 1201. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities. The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an "optional sinking fund payment". If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities. Section 1202. Satisfaction of Sinking Fund Payments with Securities. The Corporation (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series that have been redeemed either at the election of the Corporation pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. Section 1203. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any Securities, the Corporation will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, that is to be satisfied by payment of cash and the portion thereof, if any, that is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 45 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be -59- given in the name of and at the expense of the Corporation in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107. ARTICLE THIRTEEN Defeasance and Covenant Defeasance Section 1301. Corporation's Option to Effect Defeasance or Covenant Defeasance. The Corporation may elect, at its option at any time, to have Section 1302 or Section 1303 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities. Section 1302. Defeasance and Discharge. Upon the Corporation's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Corporation shall be deemed to have been discharged from its obligations, and the provisions of Article Fourteen shall cease to be effective, with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance means that the Corporation shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Corporation, shall execute proper instruments acknowledging the same), subject to the following, which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the Corporation's obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Corporation may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such Securities. -60- Section 1303. Covenant Defeasance. Upon the Corporation's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (1) the Corporation shall be released from its obligations under Section 801(3) and any covenants provided pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such Securities, and (2) the provisions of Article Fourteen shall cease to be effective, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Corporation may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in or Article Fourteen, whether directly or indirectly by reason of any reference elsewhere herein to such Article or by reason of any reference in such Article to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby. Section 1304. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to the application of Section 1302 or Section 1303 to any Securities or any series of Securities, as the case may be: (1) The Corporation shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee that satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, "U.S. Government Obligation" means (x) any security that is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation that is specified in Clause (x) above and held by such bank for the account of the holder of such -61- depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation that is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt. (2) In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Corporation shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Corporation has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. (3) In the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Corporation shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. (4) The Corporation shall have delivered to the Trustee an Officer's Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. (5) No event that is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(1) and (2), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). (6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act). (7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Corporation is a party or by which it is bound. -62- (8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder. (9) At the time of such deposit, (A) no default in the payment of any principal of or premium or interest on any Senior Indebtedness shall have occurred and be continuing, (B) no event of default with respect to any Senior Debt shall have resulted in such Senior Debt becoming, and continuing to be, due and payable prior to the date on which it would otherwise have become due and payable (unless payment of such Senior Debt has been made or duly provided for), and (C) no other event of default with respect to any Senior Debt shall have occurred and be continuing permitting (after notice or lapse of time or both) the holders of such Senior Debt (or a trustee on behalf of such holders) to declare such Senior Debt due and payable prior to the date on which it would otherwise have become due and payable. (10) The Corporation shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with. Section 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are referred to collectively as the "Trustee") pursuant to Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Corporation acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law. Money and U.S. Government Obligations so held in trust shall not be subject to the provisions of Article Fourteen. The Corporation shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of Outstanding Securities. Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Corporation from time to time upon Corporation Request any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any Securities that, in the opinion of a nationally recognized firm of independent public -63- accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities. Section 1306. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Corporation has been discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities in accordance with this Article; provided, however, that if the Corporation makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Corporation shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust. ARTICLE FOURTEEN Subordination of Securities Section 1401. Securities Subordinate to Senior Indebtedness. The subordination provisions in this Article shall apply to the Securities of any series to the extent established or determined with respect to the Securities of such series pursuant to Section 301. The Corporation covenants and agrees, and each Holder of a Security of any series, by such Holder's acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the indebtedness represented by the Securities and the payment of the principal of, premium, if any, and interest on each and all of the Securities of such series are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness. Section 1402. Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Corporation or to its assets, or (b) any liquidation, dissolution or other winding up of the Corporation whether voluntary or involuntary and whether or -64- not involving solvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Corporation, then and in any such event the holders of Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in money or money's worth, before the Holders of the Securities are entitled to receive any payment on account of principal of or premium, if any, or interest on the Securities, and to that end the holders of Senior Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities, that may be payable or deliverable in respect of the Securities in any such case, proceeding, dissolution, liquidation or other winding up or event. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or Holder of any Security of any series shall have received any payment or distribution of assets of the Corporation of any kind or character, whether in cash, property or securities, before all Senior Indebtedness is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered by the Trustee or the Holder, as the case may be, forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Corporation for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include shares of stock of the Corporation as reorganized or readjusted, or securities of the Corporation or any other corporation provided for by a plan of reorganization or readjustment that are subordinated in right of payment to all Senior Indebtedness that may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article. The consolidation of the Corporation with, or the merger of the Corporation into, another Person or the liquidation or dissolution of the Corporation following the conveyance or transfer of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Corporation for the purposes of this Section if the Person formed by such consolidation or into which the Corporation is merged or the Person that acquires by conveyance or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Eight. -65- Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of Securities. In the event that any Securities are declared due and payable before their Stated Maturity, then and in such event the holders of the Senior Indebtedness shall be entitled to receive payment in full of all amounts due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in money or money's worth, before the Holders of the Securities of such series are entitled to receive any payment of principal of or premium, if any, or interest on the Securities or on account of the purchase or other acquisition of securities of such series; provided, however, that if, as specified as contemplated by Section 301, Article Twelve is applicable to any series of Securities nothing in this Section shall prevent the satisfaction of any sinking fund payment in accordance with Article Twelve by delivering and crediting pursuant to Section 1202 securities of such series that have been acquired (upon redemption or otherwise) prior to such declaration of acceleration. In the event that, notwithstanding the foregoing, the Corporation shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered by the Trustee or the Holder, as the case may be, forthwith to the Corporation. The provisions of this Section shall not apply to any payment with respect to which Section 1402 would be applicable. Section 1404. No Payment When Senior Indebtedness in Default. (a) In the event and during the continuation of any default in the payment of principal of or premium, if any, or interest on any Senior Indebtedness beyond any applicable grace period with respect thereto, or in the event that any event of default with respect to any Senior Indebtedness shall have occurred and be continuing permitting the holders of such Senior Indebtedness (or a trustee on behalf of the holders thereof) to declare such Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and payable, unless and until such event of default shall have been cured or waived or shall have ceased to exist and such acceleration shall have been rescinded or annulled, or (b) in the event any judicial proceeding shall be pending with respect to any such default in payment, or event of default, then no payment shall be made by the Corporation on account of principal of, or premium, if any, or interest on the Securities of any series or on account of the purchase or other acquisition of Securities of any series; provided, however, that nothing in this Section shall prevent the satisfaction of any sinking fund payment in accordance with Article Twelve by delivering and crediting pursuant to Section 1202 Securities of such series that have been acquired (upon redemption or otherwise) prior to such default in payment or event of default. In the event that, notwithstanding the foregoing, the Corporation shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing -66- provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered by the Trustee or the Holder, as the case may be, forthwith to the Corporation. The provisions of this Section shall not apply to any payment with respect to which Section 1402 would be applicable. Section 1405. Payment Permitted If No Default. Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Corporation, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Corporation referred to in Section 1402 or under the conditions described in Section 1403 or 1404, from making payments at any time of principal of or premium, if any, or interest on the Securities, or (b) the application by the Trustee or any Paying Agent of any moneys deposited with it hereunder to the payment of or on account of the principal of or premium, if any, or interest on the Securities and the retention by the Holders of any moneys so received if, at the time of such payment, the Trustee or such Paying Agent did not have knowledge that such payment would have been prohibited by the provisions of this Article. Section 1406. Subrogation to Rights of Holders of Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities of any series shall be subrogated (equally and ratably with the holders of all Existing Subordinated Indebtedness and all indebtedness of the Corporation that by its express terms is subordinated to indebtedness of the Corporation to substantially the same extent as the Securities or the Existing Subordinated Indebtedness are subordinated and is entitled to like rights of subrogation) to the rights of the holders of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the principal of, premium, if any, and interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions of this Article to the holders of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as among the Corporation, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, be deemed to be a payment or distribution by the Corporation to or on account of the Senior Indebtedness. -67- Section 1407. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Indebtedness (and, in the case of Section 1415, the holders of Existing Subordinated Indebtedness and Entitled Persons in respect of Other Financial Obligations) on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as among the Corporation, its creditors other than holders of Senior Indebtedness, Entitled Persons in respect of Other Financial Obligations and the Holders of the Securities, the obligation of the Corporation, which is absolute and unconditional (and which, subject to the rights under this Article of the holders of Senior Indebtedness and the rights under Section 1415 of Entitled Persons in respect of Other Financial Obligations, is intended to rank equally with all other general obligations of the Corporation), to pay to the Holders of the Securities the principal of, premium, if any, and interest on the Securities as and when the same shall become due and payable in accordance with their terms; (b) affect the relative rights against the Corporation of the Holders of the Securities and creditors of the Corporation other than the holders of Senior Indebtedness and of Existing Subordinated Indebtedness and of Entitled Persons in respect of Other Financial Obligations; or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness, and under Section 1415 of Entitled Persons in respect of Other Financial obligations, to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. Section 1408. Authorization of Trustee to Effectuate Subordination of Securities. Each Holder of a Security, by such Holder's acceptance thereof, authorizes and expressly directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination and payment provided in this Article and appoints the Trustee such Holder's attorney-in-fact for any and all such purposes. Section 1409. No Waiver of Subordination Provisions. No right of any present or future holder of any Senior Indebtedness and Entitled Persons in respect of Other Financial Obligations, as the case may be, to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Corporation or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Corporation with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness and Entitled Persons in respect of Other Financial Obligations, -68- as the case may be, may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any Person liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Corporation and any other Person. Section 1410. Notice to Trustee; Trustee Not Charged with Knowledge of Prohibition. The Corporation shall give prompt written notice to the Trustee of any fact known to the Corporation that would prohibit the making of any payment or distribution to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment or distribution to or by the Trustee in respect of the Securities, unless and until the Trustee shall have received written notice thereof from the Corporation or a holder of Senior Indebtedness or from any trustee therefor or from any Entitled Persons in respect of Other Financial Obligations, and, prior to the receipt of any such written notice, the Trustee shall be entitled in all respects to assume that no such facts exist. The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee therefor) or an Entitled Person in respect of Other Financial Obligations to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee therefor) or an Entitled Person in respect of other Financial Obligations. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness or an Entitled Person in respect of Other Financial Obligations to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness or other Financial Obligations held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment or distribution to such Person pending judicial determination as to the right of such Person to receive such payment. -69- Section 1411. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Corporation referred to in this Article, the Trustee and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Corporation and the Entitled Persons in respect of Other Financial Obligations, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. Section 1412. No Fiduciary Duty to Holders of Senior Indebtedness of Corporation. The Trustee shall not be deemed to owe any duty to the holders of Senior Indebtedness of the Corporation or Entitled Persons in respect of Other Financial Obligations, except as provided in this Article. Section 1413. Right of Trustee to Hold Senior Indebtedness of Corporation. The Trustee shall be entitled to all of the rights set forth in this Article in respect of any Senior Indebtedness of the Corporation at any time held by it to the same extent as any other holder of such Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder. Section 1414. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Corporation and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that Section 1413 shall not apply to the Corporation or any Affiliate of the Corporation if it or such Affiliate acts as Paying Agent. -70- Section 1415. Securities to Rank Pari Passu with Existing Subordinated Indebtedness; Payment of Proceeds in Certain Cases. Subject to the provisions of this Section and to any provisions established or determined with respect to Securities of any series pursuant to Section 301, the Securities shall rank pari passu in right of payment with the Existing Subordinated Indebtedness. Upon the occurrence of any of the events specified in clauses (a), (b) and (c) of the first paragraph of Section 1402, the provisions of that Section and the corresponding provisions of each indenture or other instrument or document establishing or governing the terms of any Existing Subordinated Indebtedness shall be given effect on a pro rata basis to determine the amount of cash, property or securities that may be payable or deliverable as between the holders of Senior Indebtedness, on the one hand, and the Holders of Securities and holders of Existing Subordinated Indebtedness, on the other hand. If, after giving effect to the provisions of Section 1402, Section 1406 and the respective corresponding provisions of each indenture or other instrument or document establishing or governing the terms of any Existing Subordinated Indebtedness on such pro rata basis, any amount of cash, property or securities shall be available for payment or distribution in respect of the Securities ("Excess Proceeds"), and, if at such time, any Entitled Persons in respect of Other Financial Obligations shall not have received payment in full of all amounts due or to become due on or in respect of such Other Financial Obligations (and provision shall not have been made for such payment in money or money's worth), then such Excess Proceeds shall first be applied (ratably with any amount of cash, property or securities available for payment or distribution in respect of any other indebtedness of the Corporation that by its express terms provides for the payment over of amounts corresponding to Excess Proceeds to Entitled Persons in respect of Other Financial Obligations) to pay or provide for the payment of the Other Financial Obligations remaining unpaid, to the extent necessary to pay all Other Financial Obligations in full, after giving effect to any concurrent payment or distribution to or for Entitled Persons in respect of Other Financial Obligations. Any Excess Proceeds remaining after the payment (or provision for payment) in full of all Other Financial Obligations shall be available for payment or distribution in respect of the Securities. In the event that, notwithstanding the foregoing provisions of the preceding paragraph of this Section, the Trustee or Holder of any Security shall have received any payment or distribution of assets of the Corporation of any kind or character, whether in cash, property or securities, before all Other Financial Obligations are paid in full or payment thereof duly provided for, and if such fact shall, at or prior to the time of such payment or distribution have been made known to the Trustee or, as the case may be, such Holder, then and in such event, subject to any obligation that the Trustee or such Holder may have pursuant to Section 1402, such payment or distribution shall be paid over or delivered by the Trustee or the Holder, as the case may be, forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Corporation for payment in accordance with the previous paragraph of this Section. -71- Subject to the payment in full of all Other Financial Obligations, the Holders of the Securities shall be subrogated (equally and ratably with the holders of all indebtedness of the Corporation that by its express terms provides for the payment over of amounts corresponding to Excess Proceeds to Entitled Persons in respect of Other Financial Obligations and is entitled to like rights of subrogation) to the rights of the Entitled Persons in respect of Other Financial Obligations to receive payments and distributions of cash, property and securities applicable to the Other Financial Obligations until the principal of and interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to Entitled Persons in respect of Other Financial obligations of any cash, property or securities to which Holders of the Securities or the Trustee would be entitled except for the provisions of this Section, and no payments over pursuant to the provisions of this Section to Entitled Persons in respect of Other Financial Obligations by Holders of Securities or the Trustee, shall, as among the Corporation, its creditors other than Entitled Persons in respect of Other Financial Obligations and the Holders of Securities be deemed to be a payment or distribution by the Corporation to or on account of the Other Financial Obligations. The provisions of subsections the third, fourth and fifth paragraphs of this Section are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the Entitled Persons in respect of Other Financial Obligations, on the other hand, after giving effect to the rights of the holders of Senior Indebtedness, as provided in this Article. Nothing contained in the third, fourth and fifth paragraphs of this Section is intended to or shall affect the relative rights against the Corporation of the Holders of the Securities and (1) the holders of Senior Indebtedness, (2) the holders of Existing Subordinated Indebtedness other than holders of indebtedness that by its express terms provides for the payment over of amounts corresponding to Excess Proceeds to Entitled Persons in respect of Other Financial Obligations or (3) other creditors of the Corporation other than Entitled Persons in respect of Other Financial obligations. _____________________________ This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. -72- In Witness Whereof, the parties hereto have caused this 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...................................... Attest: ...................................... ...................................... By...................................... Attest: ...................................... -73- State of New York ) ) ss.: County of New York ) On the .... day of ..........., 199.., before me personally came ..........................., to me known, who, being by me duly sworn, did depose and say that he is ............................ of Bankers Trust New York Corporation, one of the corporations described in and which executed the foregoing instrument; that 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 he signed his name thereto by like authority. ............................................... State of New York ) ) ss.: County of New York ) On the .... day of ..........., 199., before me personally came ..........................., to me known, who, being by me duly sworn, did depose and say that he is ............................ of ................................., one of the corporations described in and which executed the foregoing instrument; that 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 he signed his name thereto by like authority. ............................................... -74- EX-4.6 3 DEBT WARRANT AGREEMENT EXHIBIT 4.6 ================================================================================ DEBT WARRANT AGREEMENT dated as of ________ __, 199__ between BANKERS TRUST NEW YORK CORPORATION and [NAME OF WARRANT AGENT], as Warrant Agent --------------------------- Debt Warrants Expiring ________ __, 199__ ================================================================================ TABLE OF CONTENTS Page PARTIES....................................................... 1 RECITALS...................................................... 1 ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES Section 1.01. The Warrants; Issuance of Warrants; Book-Entry Procedures; Successor Depository..................................... 2 Section 1.02. Form; Denominations; Execution, Countersignature, Delivery and Dating of Global Warrant Certificates................................... 4 Section 1.03. Definitive Warrant Certificates................ 6 Section 1.04. Maintenance of Warrant Register; Registration of Transfers and Exchanges of Global Warrant Certificates................................... 8 Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant Certificates.................... 10 Section 1.06. Cancellation of Warrants....................... 11 ARTICLE II EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS Section 2.01. Exercise Price................................. 12 Section 2.02. Duration of Warrants; Method of Exercise; Minimum [and Maximum] Exercise Amounts; Notice of Exercise....................................... 13 Section 2.03. Exercise of Warrants........................... 15 ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS Section 3.01. Treatment of Holders........................... 18 Section 3.02. Holder or Owner of Warrant May Enforce Rights................................. 19 ARTICLE IV CONCERNING THE WARRANT AGENT Section 4.01. Warrant Agent.................................. 19 Section 4.02. Certain Duties of the Warrant Agent.......................................... 20 Section 4.03. Conditions of Warrant Agent's Obligations.................................... 20 Section 4.04. Compliance With Applicable Laws................ 23 Section 4.05. Corporate Warrant Agent Required; Eligibility.................................... 23 Section 4.06. Resignation and Removal; Appointment of Successor....................... 23 Section 4.07. Acceptance of Appointment by Successor...................................... 25 Section 4.08. Merger, Conversion, Consolidation or Succession to Business...................... 25 ARTICLE V CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE Section 5.01. Consolidations and Mergers of the Corporation and Sales, Leases and Conveyances Permitted Subject to Certain Conditions............................. 26 ARTICLE VI SUPPLEMENTAL AGREEMENTS Section 6.01. Amendment of Debt Warrant Agreement...................................... 27 Section 6.02. Form of Approval of Supplemental Agreements by Owners or Holders................ 29 Section 6.03. Effect of Supplemental Agreements.............. 29 Section 6.04. Reference in Warrants to Supplemental Agreements........................ 29 ARTICLE VII COVENANTS OF THE CORPORATION Section 7.01. Delivery of Prospectus......................... 29 Section 7.02. Governmental Approvals......................... 29 -ii- Section 7.03. Delivery of Warrant Debt Securities..................................... 30 Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys............................... 30 Section 7.05. Corporate Existence............................ 31 ARTICLE VIII MISCELLANEOUS Section 8.01. Reopening of Issue of Warrants................. 31 Section 8.02. Payment of Taxes............................... 31 Section 8.03. Notices and Demands to the Corporation and Warrant Agent.................. 31 Section 8.04. Addresses for Notices.......................... 32 Section 8.05. Notices to Owners and Holders.................. 32 SECTION 8.06. GOVERNING LAW.................................. 32 Section 8.07. Benefits of Debt Warrant Agreement............. 32 Section 8.08. Successors and Assigns......................... 32 Section 8.09. Debt Warrant Agreement and Warrants Solely Corporate Obligations................... 33 Section 8.10. Severability................................... 33 Section 8.11. Headings....................................... 33 Section 8.12. Counterparts................................... 33 Section 8.13. Inspection of Debt Warrant Agreement...................................... 33 EXHIBITS Exhibit A Form of Warrant Certificate Exhibit B-1 Form of Exercise Notice from Depository Participant Exhibit B-2 Form of Exercise Notice from Holder of Definitive Warrant Certificate Exhibit C Form of Rejection Notice Exhibit D Form of Confirmation of Exercise -iii- DEBT WARRANT AGREEMENT DEBT WARRANT AGREEMENT, dated as of ________ __, 199__ (as modified, amended or supplemented, this "Agreement"), between BANKERS TRUST NEW YORK CORPORATION, a corporation organized and existing under the laws of the State of New York (the "Corporation"), and [NAME OF WARRANT AGENT], a [banking association] [corporation] organized and existing under the laws of ______________, as Warrant Agent (the "Warrant Agent"). W I T N E S S E T H: WHEREAS, the Corporation has entered into an Indenture, [dated as of November 1, 1991, as amended by the First Supplemental Indenture, dated as of September 1, 1993 (as so amended, and as further amended from time to time, the "Indenture"), between the Corporation and The Chase Manhattan Bank (National Association)] [dated as of April 1, 1992, as amended by the First Supplemental Indenture, dated as of January 15, 1993 (as so amended, and as further amended from time to time, the "Indenture"), between the Corporation and Marine Midland Bank, N.A.] [dated as of ________ __, 1994 (as amended from time to time, the "Indenture"), between the Corporation and ______________], as trustee (such trustee, and any successors to such trustee, the "Trustee"), providing for the issuance from time to time of its unsecured and [unsubordinated] [subordinated] debentures, notes or other evidences of [senior] [subordinated] indebtedness, to be issued in one or more series as provided in the Indenture; WHEREAS, the Corporation proposes to sell [[title of Debt Securities being offered (if Debt Securities and Warrants are to be offered)] (the "Offered Debt Securities") with] warrants (each, a "Warrant") representing the right to purchase [title of Debt Securities purchasable through exercise of Warrants] the "Warrant Debt Securities"); and WHEREAS, the Corporation desires the Warrant Agent to act on behalf of the Corporation, and the Warrant Agent is willing so to act, in connection with the issuance, transfer, exchange, exercise and cancellation of the [Offered Debt Securities and the] Warrants, and the Corporation desires to set forth herein, among other things, the provisions of the Warrants and the terms and conditions under which they may be issued, transferred, exchanged, exercised and canceled; NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES Section 1.01. The Warrants; Issuance of Warrants; Book-Entry Procedures; Successor Depository. (a) Each Warrant shall represent the right, subject to the provisions contained herein and therein, to purchase Warrant Debt Securities in the aggregate principal amount of $_____________ at the Exercise Price set forth in Section 2.01. [If Debt Securities and Warrants are to be offered together -- Warrants shall [initially] be issued in units with the Offered Debt Securities and shall not be separately transferable [before _____________, 19__ (the "Detachable Date")]. Each such unit shall consist of $_____ aggregate principal amount of the Offered Debt Securities and _______ Warrants.] No Warrant shall entitle any registered holder thereof (each, a "Holder") or any Owner (as defined in Section 1.01(c)) to any of the rights of a registered holder or owner of the Warrant Debt Securities, including, without limitation, the right to receive the payment of principal of, premium, if any, or interest, if any, on the Warrant Debt Securities or to enforce any of the covenants in the Warrant Debt Securities or the Indenture[, except to the extent that the consent of the Holders or Owners of Warrants is expressly required by the terms of the Warrant Debt Securities for certain modifications of the Warrant Debt Securities]. [No amendment or modification of the Indenture or the forms of the Warrant Debt Securities that would adversely affect the rights of the Holders or Owners of Warrants shall be made prior to the issuance of any Warrant Debt Securities without the written consent of the Holders or Owners of Warrants representing the right to purchase at least a majority of the maximum principal amount of the Warrant Debt Securities that may be issued pursuant to Warrants that may be issued pursuant to this Agreement.] (b) The Warrants shall constitute direct, unconditional and unsecured obligations of the Corporation. -2- (c) The Warrants shall initially be issued in book-entry form and represented by one or more global certificates (each, a "Global Warrant Certificate"). Owners of beneficial interests in a Global Warrant Certificate (each, an "Owner") shall not be entitled to receive definitive certificates evidencing the Warrants; provided, however, that the Corporation shall issue Warrants in definitive form (each, a "Definitive Warrant Certificate", and with the Global Warrant Certificates, the "Warrant Certificates") in exchange for a Global Warrant Certificate if (i) the Depository (as defined in Section 1.01(d)) has notified the Corporation that it is unwilling or unable to continue as Depository for such Global Warrant Certificate or if at any time it has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, at a time when it is required to be so registered in order to act as Depository, and a successor Depository is not appointed by the Corporation within 90 days, (ii) the Corporation at any time shall determine to have the Warrants represented by Definitive Warrant Certificates and shall execute and deliver to the Warrant Agent a written order signed in the name of the Corporation by its Chairman of the Board, its Vice Chairman, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary (each such order, a "Corporation Order") stating that the Corporation wishes to issue Warrants in definitive form in exchange for such Global Warrant Certificate, or (iii) there shall have occurred and be continuing a default by the Corporation in respect of its obligations with respect to the Warrants. In any such instance, and in accordance with the provisions of this Agreement, each Owner shall be entitled to have registered in its name the number of Warrants in definitive form equivalent to such Owner's beneficial interest in such Global Warrant Certificate and shall be entitled to physical delivery of Definitive Warrant Certificates representing such Warrants by the Depository Participant or Indirect Participant (each as defined in Section 1.01(d)) through which such Owner's beneficial interest is reflected. (d) Each Global Warrant Certificate shall initially be registered in the name of, and the Holder of each Warrant represented by such Global Warrant Certificate shall be, [The Depository Trust Company] or its agent (the "Depository", which term shall include any nominee of the Depository and any successor depository selected by the Corporation as provided in Section 1.01(e)), and shall be deposited with the Depository or its agent for credit to the accounts of the Depository Participants as shown on the records of the Depository from time to time. The Warrant holdings of Depository Participants shall be recorded on the -3- books of the Depository. The Warrant holdings of Indirect Participants and of Owners who are customers of Depository Participants shall be reflected on the books and records of such Depository Participants and shall not be known to the Warrant Agent, the Corporation or the Depository. The Warrant holdings of Owners who are customers of Indirect Participants shall be reflected on the books and records of such Indirect Participants and shall not be known to the Warrant Agent, the Corporation, the Depository Participants or the Depository. Neither the Corporation nor the Warrant Agent shall have any responsibility or liability for any aspect of the records relating to beneficial ownership interests in a Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to any such beneficial ownership interest. As used herein, the term "Depository Participant" shall include any participant in the Depository's system and, for purposes of this Agreement, shall also mean any participant in the book-entry system of any successor Depository. As used herein, the term "Indirect Participant" shall include any other bank, securities dealer, trust company or other Person (as defined below) that clears or maintains a custodial relationship with a Depository Participant, either directly or indirectly. As used herein, the term "Person" shall include any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. (e) The Corporation may from time to time select a new Person to act as Depository and, if such selection is made, the Corporation shall promptly give the Warrant Agent and the existing Depository notice to such effect identifying the new Depository. As promptly as practicable thereafter, the Depository shall deliver each Global Warrant Certificate then held by it to the Warrant Agent, and the Warrant Agent shall register the transfer of such Global Warrant Certificate to the new Depository as provided in Section 1.04. Appropriate changes may be made in each Global Warrant Certificate, and in the notice of exercise and the related notices delivered in connection with an exercise or deemed exercise of Warrants to reflect the selection of the new Depository. Section 1.02. Form; Denominations; Execution, Countersignature, Delivery and Dating of Global Warrant Certificates. (a) At any time and from time to time after the execution and delivery of this Agreement, the Corporation may deliver one or more Global Warrant Certificates, each representing any integral number of Warrants [not exceeding ________________ Warrants originally -4- issued,] executed by the Corporation as set forth in Section 1.02(b), to the Warrant Agent for countersignature, together with a Corporation Order for the countersignature and delivery of such Warrants, and the Warrant Agent shall manually countersign and deliver such Warrants in accordance with such Corporation Order. During such time as Warrants shall be represented by Global Warrant Certificates, the Corporation may issue additional Warrants in accordance with the terms of this Agreement either by issuing an additional Global Warrant Certificate or by issuing a new Global Warrant Certificate in exchange for the existing Global Warrant Certificate, provided that any such exchange shall conform to the requirements set forth in Section 1.04(f). (b) Each Global Warrant Certificate, whenever issued, shall be in registered form substantially in the form of Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement. Each Global Warrant Certificate shall be printed, lithographed, typewritten, mimeographed or engraved on steel engraved borders or otherwise reproduced in any other manner as may be approved by the officers executing the same (such execution to be conclusive evidence of such approval) and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the same may approve (such execution to be conclusive evidence of such approval) and that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any securities exchange on which the Warrants may be listed, or of the Depository, or to conform to usage. Each Global Warrant Certificate shall be signed on behalf of the Corporation by its Chairman of the Board, its Vice Chairman, its President or one of its Vice Presidents, under its corporate seal reproduced thereon and attested by its Secretary or one of its Assistant Secretaries. The signature of any such officer on any Global Warrant Certificate may be either manual or facsimile. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Global Warrant Certificate that has been duly countersigned and delivered by the Warrant Agent. (c) No Global Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, unless such Global Warrant Certificate -5- has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Global Warrant Certificate executed by the Corporation shall be conclusive evidence, and the only evidence, that such Global Warrant Certificate so countersigned has been duly issued hereunder. (d) Any Global Warrant Certificate bearing the manual or facsimile signatures of individuals who were at the time of such signature the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the countersignature and delivery of such Global Warrant Certificate or did not hold such offices at the date of such Global Warrant Certificate. (e) Each Global Warrant Certificate shall be dated the date of its countersignature. Section 1.03. Definitive Warrant Certificates. (a) Any Definitive Warrant Certificate issued in accordance with Section 1.01(c), whenever issued, shall be in registered form substantially in the form of Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or necessary or desirable for individual Definitive Warrant Certificates, provided that each such Definitive Warrant Certificate shall have imprinted on the reverse thereof the Exercise Notice substantially in the form of Exhibit B-2. Each Definitive Warrant Certificate may represent any integral number of Warrants [not exceeding ________________ Warrants originally issued], shall be printed, lithographed, typewritten, mimeographed or engraved on steel engraved borders or otherwise reproduced in any other manner as may be approved by the officers executing the same (such execution to be conclusive evidence of such approval), and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the same may approve (such execution to be conclusive evidence of such approval) and that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any securities exchange on which the Warrants may be listed, or of the Depository, or to conform to usage. Each Definitive Warrant Certificate shall be signed on behalf of the Corporation upon the same conditions, in substantially the same manner and with the same effect as set forth in Section 1.02 with respect to Global Warrant Certificates. -6- (b) Each Definitive Warrant Certificate, when so signed on behalf of the Corporation, shall be delivered to the Warrant Agent together with a Corporation Order for the countersignature and delivery of such Warrants, and the Warrant Agent shall manually countersign and deliver such Warrants in accordance with such Corporation Order upon the same conditions, in substantially the same manner and with the same effect as set forth in Section 1.02 with respect to Global Warrant Certificates. Each Definitive Warrant Certificate shall be dated the date of its countersignature. (c) No Definitive Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, unless such Definitive Warrant Certificate has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Definitive Warrant Certificate executed by the Corporation shall be conclusive evidence, and the only evidence, that such Definitive Warrant Certificate so countersigned has been duly issued hereunder. (d) Any Definitive Warrant Certificate bearing the manual or facsimile signatures of individuals who were at the time of such signature the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the countersignature and delivery of such Definitive Warrant Certificate or did not hold such offices at the date of such Definitive Warrant Certificate. (e) Definitive Warrant Certificates delivered in exchange for a Global Warrant Certificate shall be registered in such names and addresses (including tax identification numbers) and in such denominations as shall be requested in writing by the Depository or its nominee in whose name such Global Warrant Certificate is registered, upon written certification to the Corporation and the Warrant Agent, in form satisfactory to each of them, of the existing beneficial ownership interests in such Global Warrant Certificate. (f) The Holder of any Warrant represented by a Definitive Warrant Certificate shall be [if Debt Securities and Warrants that are not immediately detachable are offered -- , prior to the Detachable Date, the Person in whose name the Offered Debt Security to which such Warrant Certificate was initially attached shall be registered upon the register relating to such Offered Debt Securities and, after such Detachable Date,] the Person in whose name such Definitive Warrant Certificate is registered in the Warrant Register -7- (as defined in Section 1.04) at such time. [If Offered Debt Securities and Warrants that are not immediately detachable are offered -- Prior to the Detachable Date, the Corporation shall, or shall cause the registrar of the Offered Debt Securities to, make available to the Warrant Agent such information as may be necessary to permit the Warrant Agent to keep the Warrant Register up to date regarding Holders of the Offered Debt Securities.] Section 1.04. Maintenance of Warrant Register; Registration of Transfers and Exchanges of Global Warrant Certificates. (a) [If Offered Debt Securities and Warrants that are not immediately detachable are offered -- From and after the Detachable Date,] the Corporation shall cause to be kept at the Warrant Agent Office (as defined in Section 1.04(b)) a register (the "Warrant Register"), which may be maintained electronically and in which, subject to such reasonable regulations as it may prescribe, the Corporation shall provide for the registration and registration of transfer, exchange, exercise and cancellation of Warrants. The Warrant Agent is hereby appointed "Warrant Registrar" for the purpose of registering Warrant Certificates and transfers and exchanges of Warrant Certificates as herein provided. (b) [If Offered Debt Securities and Warrants that are not immediately detachable are offered -- Prior to the Detachable Date, a Warrant Certificate may be exchanged or transferred only together with the Offered Debt Security to which such Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Debt Security. Furthermore, on or prior to the Detachable Date, each transfer of an Offered Debt Security on the register of the Offered Debt Securities shall operate also to transfer the Warrant Certificate or Certificates to which such Offered Debt Security was initially attached. From and after the Detachable Date, a] [If Offered Debt Securities and Warrants that are immediately detachable are offered -- A] Warrant Certificate may be transferred at the option of the Holder thereof upon surrender of such Warrant Certificate at the office or agency of the Warrant Agent maintained for the purpose of transferring, exchanging, exercising and canceling the Warrants, which shall be south of Chambers Street in the Borough of Manhattan, The City of New York (the "Warrant Agent Office"), and which is, on the date of this Agreement, _______________________, New York, New York, _____, Attention: [Corporate Trust Department], or at the office of any successor Warrant Agent as provided in Article IV. Upon any such registration of transfer, the Corporation shall execute, and the Warrant Agent shall countersign and -8- deliver, as provided in Section 1.02 or 1.03, as the case may be, in the name of the designated transferee a new Global Warrant Certificate or Definitive Warrant Certificate, as the case may be, of like tenor, of any authorized denomination and representing in the aggregate a like number of unexercised Warrants as evidenced by such Warrant Certificate at the time of such registration of transfer, and bearing a number not contemporaneously outstanding. (c) A Warrant Certificate may be exchanged at the option of the Holder thereof for other Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, of like tenor, of any authorized denomination and representing in the aggregate a like number of unexercised Warrants, upon surrender of such Warrant Certificate at the Warrant Agent Office. Whenever any Warrant Certificate is so surrendered for exchange, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, the Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, that the Holder of such exchanged Warrant Certificate is entitled to receive and bearing a number not contemporaneously outstanding. (d) Any Warrant Certificate presented or surrendered for registration of transfer or for exchange shall be duly endorsed or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Corporation, duly signed by the registered Holder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a bank or trust company, by a broker or dealer that is a member of the National Association of Securities Dealers, Inc. or by a member of a national securities exchange. (e) Except as otherwise provided herein or in a Global Warrant Certificate, the Warrant Agent shall register the transfer of such Global Warrant Certificate on the records of the Warrant Agent only to the Depository, to a nominee of the Depository, to a successor Depository or to a nominee of the successor Depository. (f) A Global Warrant Certificate may be exchanged for a new Global Warrant Certificate to reflect the issuance by the Corporation of additional Warrants[; provided, however, that in no event shall the number of Warrants represented by any Global Warrant Certificate exceed ___________________ originally issued]. To effect such an exchange, the Corporation shall deliver to the Warrant Agent -9- a new Global Warrant Certificate duly executed on behalf of the Corporation as provided in Section 1.02, together with a Corporation Order for the countersignature and delivery of such Warrants. The Warrant Agent shall countersign such new Global Warrant Certificate as provided in Section 1.02 and in accordance with such Corporation Order, and shall deliver such new Global Warrant Certificate to the Depository in exchange for, and upon receipt of, the Global Warrant Certificate then held by the Depository. The Warrant Agent shall cancel the Global Warrant Certificate delivered to it by the Depository and return the canceled Global Warrant Certificate to the Corporation. (g) All Warrant Certificates issued upon any registration of transfer or exchange of Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, shall be valid obligations of the Corporation, evidencing the same obligations of the Corporation and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered upon such registration of transfer or exchange. The Warrant Agent shall not be required to effect any exchange or transfer that would result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. (h) No service charge shall be made for any registration of transfer or exchange of Warrant Certificates, but the Corporation may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such transfer or exchange. Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. (a) If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Corporation shall execute, and the Warrant Agent shall countersign and deliver in exchange therefor, as provided in Section 1.02 or 1.03, as the case may be, a new Warrant Certificate of like tenor representing a like number of unexercised Warrants and bearing a number not contemporaneously outstanding. (b) If there shall be delivered by a Holder of a Warrant Certificate to the Corporation and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate, (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, and (iii) funds sufficient to cover any cost or expense to the Corporation (including any fees charged by the Warrant Agent) relating -10- to the issuance of a new Warrant Certificate, then, in the absence of notice to the Corporation or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor representing a like number of unexercised Warrants and bearing a number not contemporaneously outstanding. (c) If the Warrants evidenced by any such mutilated, destroyed, lost or stolen Warrant Certificate have been exercised, or have been or are about to be deemed to be exercised, the Corporation in its discretion may, instead of issuing a new Warrant Certificate, treat the same as if it had received written irrevocable notice of exercise in good form in respect thereof, as provided herein. (d) Upon the issuance of any new Warrant Certificate under this Section, the Corporation may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) connected therewith. (e) Every new Warrant Certificate issued pursuant to this Section 1.05 in lieu of any mutilated, destroyed, lost or stolen Warrant Certificate shall constitute an original additional contractual obligation of the Corporation, whether or not the mutilated, destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly issued hereunder. (f) The provisions of this Section 1.05 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Warrant Certificates. Section 1.06. Cancellation of Warrants. (a) If the Corporation shall purchase or otherwise acquire Warrants represented by a Global Warrant Certificate, such Warrants may, at the option of the Corporation and upon notification to the Warrant Agent, be surrendered free through a Depository Participant for credit to the Warrant Account (as defined in Section 2.01(b)) and if so credited, the Warrant Agent shall promptly note the cancellation of such Warrants -11- by notation on the records of the Warrant Agent and on the Warrant Register. (b) When all of the Warrants represented by any Global Warrant Certificate have been exercised by the Owner thereof, automatically exercised or otherwise canceled, and upon receipt of the same by the Warrant Agent, the Warrant Agent shall promptly cancel such Global Warrant Certificate. (c) The Corporation may at any time deliver to the Warrant Agent for cancellation any Definitive Warrant Certificates previously countersigned and delivered hereunder that the Corporation may have acquired in any manner whatsoever, and the Warrant Agent shall promptly cancel all Definitive Warrant Certificates so delivered. (d) All Warrant Certificates surrendered for exercise, registration of transfer or exchange or cancellation, if surrendered to any Person other than the Warrant Agent, shall be delivered to the Warrant Agent, and the Warrant Agent shall promptly cancel all such Warrant Certificates and all other Warrant Certificates surrendered to it for exercise, registration of transfer or exchange or cancellation. (e) No Warrant Certificate shall be countersigned in lieu of or in exchange for any Warrant Certificate canceled as provided in this Section 1.06 except as expressly permitted by this Agreement. All canceled Warrant Certificates held by the Warrant Agent shall be destroyed by it unless by written order the Corporation requests their return to it. ARTICLE II EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS Section 2.01. Exercise Price. [During the period from ________ __, 199__ through and including ________ __, 199__,] the exercise price of each Warrant shall be [$_______] [____% of the principal amount of the Warrant Debt Securities subject to such Warrant] plus [accrued amortization, if any, of the original issue discount of the Warrant Debt Securities] [accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from ________ __, 199__]. [During the period from ________ __, 199__ through and including ________ __, 199__, the exercise price of each Warrant shall be [$_______] [____% of the principal amount -12- of the Warrant Debt Securities subject to such Warrant] plus [accrued amortization, if any, of the original issue discount of the Warrant Debt Securities] [accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from ________ __, 199__].] [In each case, the original issue discount of $_______ for each $1,000 principal amount of Warrant Debt Securities shall be amortized at a ___% annual rate, computed on a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day months].] The exercise price of each Warrant as set forth above is referred to in this Agreement as the "Exercise Price." Section 2.02. Duration of Warrants; Method of Exercise; Minimum [and Maximum] Exercise Amounts; Notice of Exercise. (a) Subject to the limitations described herein, each Warrant may be exercised in whole but not in part on any New York Business Day (as defined in Section 2.02(f)) from [its date of issuance (specify other date if applicable)] until [3:00 P.M.], New York City time, on ________ __, 199__, or, if such date is not a New York Business Day, on the next succeeding New York Business Day (the "Expiration Date"). Each Warrant not exercised at or before [3:00 P.M.], New York City time, on the Expiration Date shall become void, and all rights of the Owner or Holder of such Warrant under this Agreement or otherwise shall cease. (b) Each Warrant may be exercised by: (i) in the case of any Warrant represented by a Global Warrant Certificate (each, a "Book-Entry Warrant"), (A) transfer of such Warrant on the records of the Depository free to the Warrant Agent's Depository Participant account (entitled ____________________), or such other account of the Warrant Agent at the Depository as the Warrant Agent shall specify (the "Warrant Account"), (B) delivery to the Warrant Agent as provided in Section 2.02(d)(i)(C) of written notice (an "Exercise Notice") duly completed and executed by a Depository Participant acting on behalf of the Owner of such Warrant and (C) payment of the Exercise Price in U.S. dollars [in cash or by cashier's check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] payable to the account of the Corporation; and -13- (ii) in the case of Warrants represented by a Definitive Warrant Certificate (each, a "Certificated Warrant"), (A) surrender of such Definitive Warrant Certificate to the Warrant Agent at the Warrant Agent Office, (B) delivery to the Warrant Agent as provided in Section 2.02(d)(ii)(C) of an Exercise Notice duly completed and executed by the Holder of such Warrant and (C) payment of the Exercise Price in U.S. dollars [in cash or by cashier's check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] payable to the account of the Corporation]. (c) Not fewer than [specify minimum exercise amount] [nor more than [specify maximum exercise amount]] Warrants may be exercised by or on behalf of any one Owner or, in the case of Certificated Warrants, any one Holder at any one time, except that no such minimum [or maximum] exercise amount shall apply in the case of the exercise of any Warrants on the Expiration Date. (d) Each Exercise Notice shall be unconditional and irrevocable and: (i) in the case of any Book-Entry Warrant, shall (A) be in the form of Exhibit B-1 hereto, and (B) shall be sent to the Warrant Agent in writing at its address as set forth in such form of Exercise Notice or at such other address as the Warrant Agent may specify from time to time by notice given in accordance with Section 8.05; and (ii) in the case of any Certificated Warrant, shall (A) be in the form of Exhibit B-2 hereto and shall, unless otherwise agreed by the Corporation and the Warrant Agent, be set forth on the reverse of the Definitive Warrant Certificate representing such Certificated Warrant, and (B) shall be sent to the Warrant Agent in writing at its address as set forth in such form of Exercise Notice or at such other address as the Warrant Agent may specify from time to time by notice given in accordance with Section 8.05. (e) Except as provided in Section 2.03(c), the Warrant Agent and the Corporation shall be entitled to rely conclusively on any Exercise Notice received by the Warrant Agent with no duty of inquiry by either of them. (f) As used in this Agreement, "New York Business Day" means any day other than a Saturday or Sunday or a day on which the [New York Stock Exchange or American Stock -14- Exchange (list any other relevant securities exchanges)] is not open for securities trading or banking institutions generally in The City of New York are authorized or required by law or executive order to close. Section 2.03. Exercise of Warrants. (a) Subject to Section 2.02(c)(ii), the exercise date (the "Exercise Date") for a Warrant shall be (i) the New York Business Day on which the Warrant Agent receives delivery of such Warrant to the Warrant Account, in the case of Book-Entry Warrants, or of the Definitive Warrant Certificate representing such Warrant at the Warrant Agent Office, in the case of Certificated Warrants, an Exercise Notice relating to such Warrant in good order and payment of the Exercise Price in the manner specified in Section 2.02(b), if such receipt occurs at or prior to [3:00] P.M., New York City time, on such New York Business Day, and (ii) otherwise the New York Business Day next succeeding the day on which the Warrant Agent receives such Warrant, the Exercise Price and such Exercise Notice, which next succeeding New York Business Day shall be the day on which such Warrant, Exercise Price and Exercise Notice shall be deemed to have been received. If any Exercise Notice, the related Exercise Price or the Warrants to which such Exercise Notice relates are received after [3:00] P.M., New York City time, on the Expiration Date, such Exercise Notice shall be void and of no effect and shall be deemed not to have been delivered. (b) Following receipt of proper delivery of any Warrant, the Exercise Price and the Exercise Notice related to such Warrant in accordance with Section 2.02(b), the Warrant Agent shall: (i) deposit all funds received by it in payment of the Exercise Price of such Warrant to the account of the Corporation maintained with it for such purpose (unless otherwise instructed in writing by the Corporation), and advise the Corporation by telephone and in writing, by facsimile transmission or otherwise, at the end of each day on which any such payment is received of the amount so deposited to its account; (ii)(A) in the case of a Book-Entry Warrant, promptly determine whether such Exercise Notice has been duly completed and is in proper form and verify that the Person that executed such Exercise Notice is listed as a Depository Participant in the most recent published edition of the Depository's Eligible Corporate Securities Book (or the comparable publication of any successor Depository) and, if such Person is not listed therein, make reasonable efforts -15- to obtain verbal verification from the Depository's Planning Department (telephone number 212-709-1000) (or the comparable department of a successor Depository) that such Person is a Depository Participant; and (B) in the case of a Certificated Warrant, promptly determine whether such Exercise Notice has been duly completed and is in proper form and whether the Definitive Warrant Certificate representing such Warrant is in proper form; (iii)(A) in the case of a Book-Entry Warrant, if the Warrant Agent determines that such Exercise Notice has not been duly completed or is not in proper form, or is unable through the procedures described in clause (ii)(A) above to verify that the Person that submitted such Exercise Notice is a Depository Participant, then the Warrant Agent shall reject such Exercise Notice and shall send to the Depository Participant that submitted such Exercise Notice a notice of rejection substantially in the form of Exhibit C hereto (a "Rejection Notice") and redeliver the Warrants to which such rejected Exercise Notice relates free through the facilities of the Depository to the account from which they were transferred; and (B) in the case of a Certificated Warrant, if the Warrant Agent determines that such Exercise Notice has not been duly completed or is not in proper form, or that the Definitive Warrant Certificate representing such Warrant is not in proper form, then the Warrant Agent shall reject such Exercise Notice and shall send a Rejection Notice to the Holder of such Warrants and return such Definitive Warrant Certificate to such Holder by first class mail at the expense of the Corporation; (iv) by [5:00 P.M.], New York City time, on the New York Business Day on which such Exercise Notice is received (or deemed to have been received), notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of (A) the total number of Warrants in respect of which Exercise Notices were received (or deemed to have been received) at or prior to [3:00 P.M.], New York City time, on such date, (B) the number of such Exercise Notices that were rejected by the Warrant Agent pursuant to clause (iii) above and the aggregate number of Warrants to which such rejected Exercise Notices relate, and (C) the aggregate number of Warrants covered by Exercise Notices that have not been so rejected (the "Exercised Warrants"); -16- (v) by [5:00 P.M.], New York City time, on the New York Business Day following the Exercise Date for such Exercised Warrants, send notice of confirmation of exercise in substantially the form of Exhibit D hereto to the appropriate Depository Participant or Holder, as the case may be; and (vi) promptly deliver a copy of each Exercise Notice to the Corporation and advise the Corporation of such other matters relating to any of the Warrants covered thereby, whether or not they constitute Exercised Warrants, as the Corporation shall reasonably request. (c) At or before [3:00 P.M.], New York City time, on the [fifth] New York Business Day following the Exercise Date for any Exercised Warrant, the Corporation shall issue, and shall cause the Trustee to authenticate and deliver, pursuant to the Indenture, in authorized denominations, to or upon the order of the Holder of such Exercised Warrant, the Warrant Debt Security or Warrant Debt Securities to which such Holder is entitled, in fully registered form, registered in such name or names as may be directed by such Holder in the Exercise Notice relating to such Exercised Warrant. (d) (i) The Warrant Agent shall cause its records, which may be kept electronically, to be marked to reflect the reduction in the number of Warrants evidenced by each Global Warrant Certificate by the number of such Warrants in respect of which Warrant Debt Securities have been made available as provided in Section 2.03(c) promptly after such payment has been made available. In the absence of manifest error, the Warrant Agent's records shall be conclusive evidence as to such matters. (ii) If any Definitive Warrant Certificate shall be surrendered to the Warrant Agent for exercise of fewer than all the Warrants represented thereby, the Corporation shall execute, and the Warrant Agent shall countersign, as provided in Section 1.02 or 1.03, as the case may be, and deliver to the Holder of such Warrants by first class mail at the expense of the Corporation a new Definitive Warrant Certificate of like tenor representing all Warrants remaining unexercised after such exercise and bearing a number not contemporaneously outstanding. (e) The Corporation shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issue of the Warrant Debt Securities, and the Corporation -17- shall not be required to issue or deliver any Warrant Debt Securities until any such tax or other charge shall have been paid or it has been established to the Corporation's satisfaction that no such tax or other charge is due. (f) Any notice to be given to the Corporation by the Warrant Agent pursuant to this Section 2.03 shall be by telephone (promptly confirmed in writing) or telecopy (receipt to be promptly confirmed by telephone). Section 2.04. Designation of Agent for Receipt of Notice. The Corporation may from time to time designate in writing to the Warrant Agent a single designee for receipt of all notices required to be given by the Warrant Agent to the Corporation pursuant to this Article II and all such notices thereafter shall be given in the manner herein provided by the Warrant Agent to such designee and each such notice shall be as effective as if given directly to the Corporation. ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS Section 3.01. Treatment of Holders. (a) The Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and treat the Person in whose name each Global Warrant Certificate shall be registered in the records of the Warrant Agent as the absolute Holder of all right, title and interest in such Global Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for all purposes hereunder and as the Person entitled to exercise the rights represented by the Warrants evidenced thereby, whether or not such Warrants shall be exercised or deemed to be exercised, and neither the Corporation nor the Warrant Agent, nor any agent of the Corporation or the Warrant Agent shall be affected by any notice to the contrary, except that the Warrant Agent and the Corporation shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated by Article II of this Agreement. (b) Prior to due presentment of a Definitive Warrant Certificate for registration of transfer, the Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may treat [if Debt Securities and Warrants that are not immediately detachable are offered -- , prior to the Detachable Date, the Person in -18- whose name the Offered Debt Security to which such Warrant Certificate was initially attached shall be registered upon the register relating to such Offered Debt Securities and, after such Detachable Date,] the Person in whose name such Definitive Warrant Certificate is registered as the absolute Holder of all right, title and interest in such Definitive Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for all purposes hereunder and as the Person entitled to exercise the rights represented by the Warrants evidenced thereby, whether or not such Warrants shall be exercised or deemed to be exercised, and neither the Corporation, the Warrant Agent nor any agent of the Corporation or the Warrant Agent shall be affected by notice to the contrary. Section 3.02. Holder or Owner of Warrant May Enforce Rights. Notwithstanding any other provision of this Agreement, any Owner, in the case of Book-Entry Warrants, and any Holder, in the case of Certificated Warrants, without the consent of the Warrant Agent, the Trustee, the holder of any Warrant Debt Securities or the Owner or Holder of any other Warrant, may, in and for such Owner's or Holder's own behalf, and for such Owner's or Holder's own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Corporation suitable to enforce, or otherwise in respect of, such Owner's or Holder's right to exercise, and to receive the Warrant Debt Securities issuable upon exercise of, such Owner's or Holder's Warrants as provided in such Warrants and in this Agreement. ARTICLE IV CONCERNING THE WARRANT AGENT Section 4.01. Warrant Agent. The Corporation hereby appoints [name of Warrant Agent] as the Warrant Agent of the Corporation in respect of the Warrants upon the terms and subject to the conditions set forth herein and in the Warrants, and [name of Warrant Agent] hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it herein and in the Warrants and such further powers and authority acceptable to it to act on behalf of the Corporation as the Corporation may hereafter grant to or confer upon it. All of the terms and provisions with respect to such powers and authority contained in the Warrants are subject to and governed by the terms and provisions hereof. -19- Section 4.02. Certain Duties of the Warrant Agent. (a) Except during the continuation of a default in the performance by the Corporation of its obligations in respect of the Warrants, the Warrant Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Warrant Agent. (b) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Section 4.03. Conditions of Warrant Agent's Obligations. The Warrant Agent accepts its obligations set forth herein upon and subject to the terms and conditions hereof and of the Warrants, including the following, to all of which the Corporation agrees and to all of which the rights hereunder of the Owners and Holders from time to time of the Warrants shall be subject: (a) The Corporation agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Corporation for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses, disbursements and advances (including reasonable attorneys' fees and expenses and reasonable compensation, expenses and disbursements of its agents) incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Corporation also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without negligence, bad faith or breach of this Agreement on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder or with respect to the Warrants, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Corporation under this subsection (a) shall survive the exercise of the Warrants and the resignation or removal of the Warrant Agent. -20- (b) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or thing suffered by it in reliance upon any Warrant, resolution, opinion, report, request, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties, provided that any request or direction of the Corporation shall be sufficiently evidenced by a Corporation Order delivered to the Warrant Agent, and any resolution of the Board of Directors shall be sufficiently evidenced by a copy of the resolution certified by the Secretary or an Assistant Secretary to have been duly adopted by the Board of Directors of the Corporation, or by a committee of such Board of Directors or an officer of the Corporation appointed by the Board of Directors of the Corporation for such purpose, and to be in full force and effect on the date of such certification and delivered to the Warrant Agent (any such resolution, a "Board Resolution"). (c) The Warrant Agent may consult with counsel satisfactory to it, which may include counsel to the Corporation, and the written opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such written opinion. (d) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any Corporation Order or Board Resolution, but the Warrant Agent, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. (e) The Warrant Agent, and any of its officers, directors and employees, in its individual or any other capacity, may become the Owner or Holder of, or acquire any interest in, any Warrants or other obligations of the Corporation, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Corporation and may act on, or as depositary, trustee or agent for, any committee or body of Owners or Holders of Warrants or holders of [Offered Debt Securities or] Warrant Debt Securities or other obligations of the Corporation as freely as if it were not the Warrant Agent hereunder. Nothing in this -21- Warrant Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee under the Indenture. (f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrants except as otherwise agreed with the Corporation, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. (g) The Warrant Agent shall not be under any liability with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrants or the Warrant Certificates (except the countersignature thereof). (h) The recitals contained herein and in the Warrants (except as to the Warrant Agent's countersignature thereon) shall be taken as the statements of the Corporation, and the Warrant Agent assumes no responsibility for the correctness thereof. (i) The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Corporation of any of the Warrant Certificates countersigned by the Warrant Agent and delivered by it to the Corporation pursuant to this Agreement or for the application by the Corporation of any proceeds. (j) The Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its covenants or agreements contained herein or in the Warrants or in the [Offered Debt Securities or] Warrant Debt Securities or in the case of the receipt of any written demand from an Owner or Holder of a Warrant with respect to such default, including, without limitation, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 8.03, to make any demand upon the Corporation. (k) In acting under this Agreement and in connection with the Warrants, the Warrant Agent is acting solely as the agent of the Corporation and does not assume any obligation or relationship of agency or -22- trust for or with any of the Owners or Holders of the Warrants. Section 4.04. Compliance With Applicable Laws. The Warrant Agent agrees to comply with all applicable federal and state laws imposing obligations on it in respect of the services rendered by it under this Agreement and in connection with the Warrants, including (but not limited to) the provisions of United States federal income tax laws regarding information reporting and backup withholding. The Warrant Agent expressly assumes all liability for its failure to comply with any such laws imposing obligations on it, including (but not limited to) any liability for its failure to comply with any applicable provisions of United States federal income tax laws regarding information reporting and backup withholding. Section 4.05. Corporate Warrant Agent Required; Eligibility. The Corporation agrees, for the benefit of the Owners or Holders from time to time of the Warrants, that there shall at all times be a Warrant Agent hereunder until all of the Warrants have been exercised or are no longer exercisable, which shall be a banking institution organized under the laws of the United States of America or one of the states thereof and having an office or an agent's office south of Chambers Street in the Borough of Manhattan, The City of New York. Section 4.06. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Warrant Agent and no appointment of a successor Warrant Agent pursuant to this Section 4.06 shall become effective until the acceptance of appointment by the successor Warrant Agent under Section 4.07. (b) The Warrant Agent may resign at any time by giving written notice of such resignation to the Corporation specifying such resignation and the date on which it desires such resignation to become effective, provided that, without the consent of the Corporation, such date shall not be less than 90 days after the date on which such notice is given. If an instrument of acceptance by a successor Warrant Agent shall not have been delivered to the Warrant Agent within 90 days after the giving of such notice of resignation, the resigning Warrant Agent may petition any court of competent jurisdiction for the appointment of a successor Warrant Agent with respect to the Warrants. (c) The Corporation may remove the Warrant Agent at any time by giving written notice thereof to the Warrant -23- Agent specifying such removal and the date on which the Corporation desires such removal to become effective. (d) If at any time: (i) the Warrant Agent shall cease to be eligible to act as such under Section 4.05 and shall fail to resign after the Corporation shall have delivered a written request therefor, or (ii) the Warrant Agent shall become incapable of acting as such, or shall be adjudged a bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or a receiver or custodian of it or of all or any substantial part of its property shall be appointed, or an order of any court shall be entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or similar law, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs, for the purpose of rehabilitation, conservation or liquidation, or (iii) the Corporation shall elect to remove the Warrant Agent, provided that no default shall then exist with respect to the Warrants, then in any such case, the Corporation by a Board Resolution may remove the Warrant Agent with respect to all the Warrants. (e) If the Warrant Agent shall resign or be removed, or if a vacancy shall occur in the office of the Warrant Agent for any other reason, the Corporation, by a Board Resolution, shall promptly appoint a successor Warrant Agent with respect to the Warrants, it being understood that at any time there shall be only one Warrant Agent with respect to the Warrants. (f) The Corporation shall give notice to the Owners or Holders of the Warrants of each resignation and each removal of the Warrant Agent and each appointment of a successor Warrant Agent with respect to the Warrants in accordance with Section 8.05. Each such notice shall include the name of the successor Warrant Agent and the address of its Warrant Agent Office. -24- Section 4.07. Acceptance of Appointment by Successor. (a) If a successor Warrant Agent is appointed hereunder, such successor Warrant Agent so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Warrant Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Warrant Agent shall become effective and such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Warrant Agent; provided, however, that on the request of the Corporation or the successor Warrant Agent, such retiring Warrant Agent shall, upon payment of its charges and disbursements then unpaid, execute and deliver an instrument transferring to such successor Warrant Agent all the rights and powers of the retiring Warrant Agent and shall duly assign, transfer and deliver to such successor Warrant Agent all property and money held by such retiring Warrant Agent hereunder. (b) Upon the request of any such successor Warrant Agent, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Warrant Agent all such rights and powers referred to in Section 4.07(a). (c) No successor Warrant Agent shall accept its appointment, and no such acceptance shall be effective, unless at the time of such acceptance such successor Warrant Agent shall be qualified and eligible under this Article IV. Section 4.08. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all of the business of the Warrant Agent, shall be the successor of the Warrant Agent hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation shall be otherwise qualified and eligible under this Article IV. If any Warrant Certificates shall have been countersigned, but not delivered, by the Warrant Agent then in office, any successor by merger, conversion or consolidation to such countersigning Warrant Agent may adopt such countersignature and deliver the Warrant Certificates so countersigned with the same effect as if such successor Warrant Agent had itself countersigned such Warrant Certificates. -25- ARTICLE V CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE Section 5.01. Consolidations and Mergers of the Corporation and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. (a) The Corporation may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided that, in any such case, (i) either the Corporation shall be the continuing corporation, or the successor corporation shall be a corporation organized and existing under the laws of the United States of America or a state thereof and such successor corporation shall expressly assume, by Supplemental Agreement (as defined in Section 6.01(a)) satisfactory to the Warrant Agent and executed and delivered to the Warrant Agent by such corporation, the due and punctual observance of the obligations of the Corporation hereunder and under all unexercised Warrants, according to their tenor, and (ii) the Corporation or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale, lease or conveyance, be in default in the performance of any such covenant or condition. In case of any such consolidation, merger, sale, lease or conveyance and upon such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Corporation, with the same effect as if it had been named herein as such, and the predecessor Corporation, except in the event of a lease, shall be relieved of any further obligation hereunder or under the Warrants. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Corporation, new Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, representing Warrants not theretofore exercised, in exchange and substitution for the Global Warrant Certificates and Definitive Warrant Certificates theretofore issued, and any or all of the Warrant Debt Securities issuable pursuant to the terms of any such unexercised Warrants; and upon the order of such successor corporation, instead of the Corporation, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Warrant Agent shall countersign and shall deliver the new Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, that such successor corporation shall have caused to be signed and delivered to the Warrant Agent for countersignature. Such Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, shall in all respects have the same legal rank and benefit under this Agreement as the Warrant Certificates -26- theretofore issued in accordance with the terms of this Agreement as though such new Warrant Certificates had been issued at the date of issue of the Warrant Certificates for which they are exchanged, and all the Warrant Debt Securities so issued shall in all respects have the same legal rank and benefit under the Indenture as the Warrant Debt Securities theretofore or thereafter issued in accordance with its terms of this Agreement and the Indenture. In case of any such consolidation, merger, sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the new Warrant Certificates and Warrant Debt Securities thereafter to be issued as may be appropriate. (b) The Warrant Agent may receive a written opinion of counsel (who may be an employee of the Corporation or other counsel acceptable to the Warrant Agent) (an "Opinion of Counsel") as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption, complies with the provisions of this Article V. ARTICLE VI SUPPLEMENTAL AGREEMENTS Section 6.01. Amendment of Debt Warrant Agreement. (a) This Agreement and the Warrants may be amended by the Corporation, when authorized by a Board Resolution, and the Warrant Agent (which amendment shall take the form of a supplemental index warrant agreement) (each, a "Supplemental Agreement")), without the consent of the Owners or Holders of the Warrants, for the purpose of: (i) curing any ambiguity or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein, or of making any other provisions with respect to matters or questions arising under this Agreement that shall not be inconsistent with the provisions of this Agreement or the Warrants; or (ii) evidencing the succession of another corporation to the Corporation and the assumption by any such successor of the covenants of the Corporation contained herein and in the Warrants in accordance with Article V; or (iii) appointing a successor Depository in accordance with Section 1.01(e); or -27- (iv) evidencing and providing for the acceptance of appointment hereunder by a successor Warrant Agent in accordance with Section 4.07; or (v) adding to the covenants of the Corporation for the benefit of the Owners or Holders of the Warrants or surrendering any right or power herein conferred upon the Corporation; or (vi) issuing Warrants in the form of Definitive Warrant Certificates in accordance with Section 1.01(c); or (vii) amending this Agreement and the Warrants in any manner that the Corporation may deem to be necessary or desirable and that will not materially and adversely affect the interests of the Owners or Holders of the Warrants. (b) The Corporation and the Warrant Agent may amend this Agreement and the Warrants (which amendment shall take the form of a Supplemental Agreement), with the consent of the Owners or Holders, as the case may be, of not fewer than 66-2/3% in number of the unexercised Warrants affected by such amendment, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Owners or Holders of the Warrants under this Agreement; provided, however, that, without the consent of each Owner or Holder affected thereby, no such amendment may be made that changes the determination of the Cash Settlement Value [or Cancellation Amount, as the case may be,] of the Warrants (or any aspects of such determination) so as to reduce the amount receivable upon exercise or deemed exercise of the Warrants, shortens the period of time during which the Warrants may be exercised, or otherwise materially and adversely affects the exercise rights of the Owners or Holders, as the case may be, or reduces the number of unexercised Warrants the consent of the Owners or Holders of which is required for amendment of this Agreement or the Warrants. The Corporation and the Warrant Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from the Owners of Warrants represented by a Global Warrant Certificate. Such certification may be provided by Depository Participants acting on behalf of such Owners of Warrants, provided that any such certification is accompanied by a certification from the Depository as to the Global Warrant Certificate holdings of such Depository Participants. -28- Section 6.02. Form of Approval of Supplemental Agreements by Owners or Holders. It shall not be necessary for the Owners or Holders of the Warrants to approve the particular form of any proposed Supplemental Agreement, but it shall be sufficient if the Owners or Holders, as the case may be, shall approve the substance of the Supplemental Agreement. Section 6.03. Effect of Supplemental Agreements. Upon the execution of any Supplemental Agreement under this Article, this Agreement shall be modified in accordance therewith, such Supplemental Agreement shall form a part of this Agreement for all purposes, and, subject to the proviso to the first sentence of Section 6.01(b), every Owner or Holder of Warrants theretofore or thereafter countersigned and delivered hereunder shall be bound thereby. Section 6.04. Reference in Warrants to Supplemental Agreements. Warrants countersigned and delivered after the execution of any Supplemental Agreement pursuant to this Article may, and shall if required by the Warrant Agent, bear a notation in form approved by the Warrant Agent as to any matter provided for in such Supplemental Agreement. If the Corporation shall so determine, new Warrants so modified as to conform, in the opinion of the Warrant Agent and the Corporation, to any such Supplemental Agreement may be prepared and executed by the Corporation and countersigned and delivered by the Warrant Agent in exchange for unexercised Warrants. ARTICLE VII COVENANTS OF THE CORPORATION Section 7.01. Delivery of Prospectus. The Corporation shall furnish to the Warrant Agent sufficient copies of a prospectus, appropriately supplemented, relating to the Warrant Debt Securities (the "Prospectus"), and the Warrant Agent agrees that, upon the exercise of any Warrant Certificate, the Warrant Agent shall deliver to the person designated to receive Warrant Debt Securities, prior to or concurrently with the delivery of such Warrant Debt Securities, a copy of such Prospectus, as so supplemented. Section 7.02. Governmental Approvals. The Corporation shall from time to time take all reasonable action necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities [and the [name of national securities exchange]] and shall make all filings under United States federal and -29- state laws (including, without limitation, the maintenance of the effectiveness of a registration statement in respect of the Warrant Debt Securities under the Securities Act of 1933), that may be or become requisite in connection with the issuance, sale, trading, transfer, delivery or exercise of the Warrants, each Global Warrant Certificate and each Definitive Warrant Certificate or the issuance, sale, transfer and delivery of the Warrant Debt Securities issued upon exercise of the Warrants or upon the expiration of the period during which the Warrants are exercisable. Section 7.03. Delivery of Warrant Debt Securities. The Corporation agrees, for the benefit of the Owners or Holders of the Warrants, that it will duly and punctually deliver the Warrant Debt Securities issuable upon exercise of each Warrant in accordance with the terms of the Warrants and this Agreement, and that the right of each such Owner or Holder, as the case may be, to receive delivery of the Warrant Debt Securities issuable upon the exercise of each such Warrant when such delivery is due shall be absolute and unconditional. Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys. (a) The Corporation shall maintain an office and agency at which the Warrants may be presented or surrendered for exercise or registration of transfer or exchange or cancellation and where notices and demands to or upon the Corporation in respect of the Warrants and this Agreement may be served, which office and agency shall be the same as the location of the Warrant Agent Office, and the Corporation hereby appoints the Warrant Agent as its agent to receive all such presentations, surrenders, notices and demands. (b) The Corporation shall, on or prior to the date on which delivery of the Warrant Debt Securities issuable upon exercise of any Warrants is due, cause the Trustee to issue such Warrant Debt Securities, which Warrant Debt Securities shall be held for the benefit of the Persons entitled to receive such Warrant Debt Securities. (c) Any money deposited with the Warrant Agent for the payment of any amounts that may become due and payable with respect to any Warrant, and any Warrant Debt Securities deposited with the Warrant Agent for delivery upon exercise of any Warrant, and remaining unclaimed for three years after such payment or delivery has become due, shall be paid or returned to the Corporation, at the request of the Corporation, and the Person entitled to such money or Warrant Debt Securities shall thereafter, as an unsecured general creditor, look only to the Corporation for payment -30- or delivery thereof, and all liability of the Warrant Agent with respect to such money or Warrant Debt Securities shall thereupon cease; provided, however, that the Warrant Agent, before being required to make any such repayment or return, may at the expense of the Corporation, cause notice to be given in accordance with Section 8.05 to the Person entitled to such money or Warrant Debt Securities that such money or Warrant Debt Securities remain unclaimed and that, after a date specified therein, which shall be not less than 30 days from the date of such notice, any unclaimed balance of such money or unclaimed Warrant Debt Securities then remaining will be repaid or returned to the Corporation. Section 7.05. Corporate Existence. Subject to Article V, the Corporation shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Corporation shall not be required to preserve any right or franchise if its Board of Directors or a committee thereof shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Corporation and that the loss thereof is not disadvantageous in any material respect to the Owners or Holders of the Warrants, as the case may be. ARTICLE VIII MISCELLANEOUS Section 8.01. Reopening of Issue of Warrants. The Corporation may, from time to time, issue additional Warrants under this Agreement. All Warrants issued hereunder, from and after the date they are issued, shall be identical. Section 8.02. Payment of Taxes. The Corporation shall pay all documentary stamp taxes attributable to the initial issuance of Warrants; provided, however, that the Corporation shall not be required to pay any tax or other governmental charge that may be payable in respect of any transfer involving any beneficial or record interest in or ownership interest of any Warrants. Section 8.03. Notices and Demands to the Corporation and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Corporation by any Owner or Holder pursuant to the provisions of the Warrants, the Warrant Agent shall promptly forward such notice or demand to the Corporation. -31- Section 8.04. Addresses for Notices. Any communications from the Corporation to the Warrant Agent with respect to this Agreement shall be addressed to [name of Warrant Agent], [address] (facsimile: (___) ___-____) (telephone: (___) ___-____), Attention: [Corporate Trust Department]; and any communications from the Warrant Agent to the Corporation with respect to this Agreement shall be addressed to Bankers Trust New York Corporation, 280 Park Avenue, New York, New York 10017 (facsimile: (212) ___-____) (telephone: (212) ___-____), Attention: [________________] (or, in either case, at such other address as shall be specified in writing to the other by the Warrant Agent or the Corporation, as the case may be). Section 8.05. Notices to Owners and Holders. The Corporation or the Warrant Agent shall give any notice to be given to the Owners of Book-Entry Warrants by providing the Depository with a form of notice to be distributed by the Depository to Depository Participants in accordance with the customs and practices of the Depository. The Corporation or the Warrant Agent shall give notice to the Holders of Certificated Warrants by mailing written notice by first class mail, postage prepaid, to such Holders as their names and addresses appear in the Warrant Register [or, prior to the Detachable Date, on the register of the Offered Debt Securities]. SECTION 8.06. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT ISSUED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 8.07. Benefits of Debt Warrant Agreement. Nothing in this Agreement or in the Warrants expressed or implied and nothing that may be inferred from any of the provisions hereof or thereof is intended, or shall be construed, to confer upon, or give to, any Person other than the Corporation, the Warrant Agent and their respective successors and assigns, and the Owners or Holders of the Warrants, as the case may be, any right, remedy or claim under or by reason of this Agreement or the Warrants or of any covenant, condition, stipulation, promise or agreement hereof or thereof, and all covenants, conditions, stipulations, promises and agreements contained in this Agreement or in the Warrants shall be for the sole and exclusive benefit of the Corporation and the Warrant Agent and their respective successors and assigns and of the Owners or Holders of the Warrants, as the case may be. Section 8.08. Successors and Assigns. All covenants and agreements in this Agreement by the -32- Corporation shall bind its successors and assigns, whether so expressed or not. Section 8.09. Debt Warrant Agreement and Warrants Solely Corporate Obligations. No recourse for the payment of any amounts due in respect of, or for the delivery of any Warrant Debt Securities issuable upon exercise of, any Warrant or for any claim based on any Warrant or this Agreement shall be had against any director or officer or stockholder, past, present or future, of the Corporation. Any such claim against any such Person is expressly waived as a condition of, and as consideration for, the execution and delivery of this Agreement and the issue of the Warrants. Section 8.10. Severability. If any provision in this Agreement or in the Warrants shall be invalid, illegal, or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions, or of such provisions in any other jurisdiction, shall not in any way be affected or impaired thereby. Section 8.11. Headings. The descriptive headings of the several Articles and Sections and the Table of Contents of this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. Section 8.12. Counterparts. This Agreement may be executed by the parties hereto in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Section 8.13. Inspection of Debt Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the Warrant Agent Office for inspection by the Owners or Holders of the Warrants, as the case may be, the Depository Participants and the Indirect Participants. In the case of Certificated Warrants, the Warrant Agent may require the Holder of such Warrant to submit such Holder's Warrant Certificate for inspection by the Warrant Agent. -33- IN WITNESS WHEREOF, this Debt Warrant Agreement has been duly executed by the parties hereto as of the day and year first above written. BANKERS TRUST NEW YORK CORPORATION By:___________________________ Name: Title: [SEAL] Attest: ___________________________ [Assistant] Secretary [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: [SEAL] Attest: _____________________________ [Assistant Secretary] -34- EXHIBIT A [Form of Legend if Debt Securities with Warrants that are not immediately detachable are offered: PRIOR TO ____________, THIS WARRANT CERTIFICATE MAY BE TRANSFERRED OR EXCHANGED IF AND ONLY IF THE [TITLE OF OFFERED DEBT SECURITY] TO WHICH IT WAS INITIALLY ATTACHED IS SO TRANSFERRED OR EXCHANGED.] [Form of Legend if Warrants are not immediately exercisable: WARRANTS EVIDENCED BY THIS WARRANT CERTIFICATE CANNOT BE EXERCISED PRIOR TO ________ __, 199__.] EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN VOID AFTER [3:00 P.M.], NEW YORK CITY TIME, ON ________ __, 199__ No. _________ CUSIP No. ____________ GLOBAL WARRANT CERTIFICATE representing Warrants to purchase [Title of Warrant Debt Securities] BANKERS TRUST NEW YORK CORPORATION This certifies that [______________] or registered assigns is the registered holder of [insert number initially issued] Warrants to purchase certain debt securities (the "Warrants"), or such lesser amount as is indicated in the records of [name of Warrant Agent], as Warrant Agent. Each Warrant entitles the [beneficial owner thereof (an "Owner")] [Holder (as defined below) hereof], subject to the provisions contained herein and in the Debt Warrant Agreement referred to below, to purchase from Bankers Trust New York Corporation, a New York corporation (the "Corporation"), $_________ principal amount of the Corporation's [Title of Warrant Debt Securities] (the "Warrant Debt Securities") of Bankers Trust New York Corporation (the "Corporation"), issued or to be issued under the Indenture (as hereinafter defined), at the Exercise Price set forth below. [During the period from ________ __, 199__ through and including ________ __, 199__,] the exercise price of each Warrant shall be [$_______] [____% of the principal amount of the Warrant Debt Securities subject to such Warrant] plus [accrued amortization, if any, of the original issue discount of the A-1 Warrant Debt Securities] [accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from ________ __, 199__]. [During the period from ________ __, 199__ through and including ________ __, 199__, the exercise price of each Warrant shall be [$_______] [____% of the principal amount of the Warrant Debt Securities subject to such Warrant] plus [accrued amortization, if any, of the original issue discount of the Warrant Debt Securities] [accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from ________ __, 199__].] [In each case, the original issue discount of $_______ for each $1,000 principal amount of Warrant Debt Securities shall be amortized at a ___% annual rate, computed on a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day months].] The exercise price of each Warrant as set forth above is referred to in this Warrant Certificate as the "Exercise Price." The term "Holder" as used herein shall mean [if Debt Securities with Warrants that are not immediately detachable are offered -- , prior to ________________, 19__ (the "Detachable Date"), the registered owner of the Corporation's [title of Offered Debt Securities] to which such Warrant Certificate was initially attached, and after such Detachable Date,] the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 1.04 of the Debt Warrant Agreement. Subject to the terms of the Debt Warrant Agreement, each Warrant may be exercised in whole but not in part on any New York Business Day (as defined below) from [the date of issuance (specify other date if applicable)] until [3:00 P.M.], New York City time, on [_________ (specify date upon which right to exercise Warrants expires)] or, if such date is not a New York Business Day, on the next succeeding New York Business Day (the "Expiration Date"). Each Warrant not exercised at or before [3:00 P.M.], New York City time, on the Expiration Date shall become void, and all rights of the Owner or Holder of such Warrant under this Agreement or otherwise shall cease. Not fewer than [(specify minimum exercise amount)] [nor more than [(specify maximum exercise amount)] Warrants may be exercised by or on behalf of any one [Owner] [Holder] at any one time. References herein to "U.S. dollars", "U.S.$" or "$" are references to the currency of the United States of America. As used herein, the term "New York Business Day" A-2 means any day other than a Saturday or Sunday or a day on which the New York Stock Exchange or the American Stock Exchange [or (list any other relevant securities exchanges)] is not open for securities trading or banking institutions generally in The City of New York are authorized or required by law or executive order to close. This [Global] [Definitive] Warrant Certificate is issued under and in accordance with the Debt Warrant Agreement, dated as of ________ __, 199__ (the "Debt Warrant Agreement"), between the Corporation and the Warrant Agent, and is subject to the terms and provisions contained in the Debt Warrant Agreement, to all of which terms and provisions all [Owners] [Holders] of the Warrants represented by this [Global] [Definitive] Warrant Certificate [and the Holder of this Global Warrant Certificate] consent by acceptance hereof [by the Depository (as defined below)]. Copies of the Debt Warrant Agreement are on file at the Warrant Agent Office at ______________, New York, New York, _____, Attention: Corporate Trust Department, or at such other office as may be specified in a notice given to the [Owners] [Holders] of the Warrants. [Except as provided in the Debt Warrant Agreement, Owners will not be entitled to receive definitive certificates evidencing their Warrants. Warrant holdings will be held through a depository selected by the Corporation, which initially is [The Depository Trust Company], or its agent (the "Depository", which term, as used herein, includes any successor depository selected by the Corporation) as further provided in the Debt Warrant Agreement.] Capitalized terms included herein but not defined herein have the meanings assigned to them in the Debt Warrant Agreement. The Warrants evidenced by this Warrant Certificate may be exercised at any time during the period specified above by delivering (i) [such Warrant on the records of the Depository free to the Warrant Account] [this Warrant Certificate to the Warrant Agent at the Warrant Agent Office], (ii) an Exercise Notice for such Warrant in good order in the form of [Exhibit B-1] [Exhibit B-2] to the Debt Warrant Agreement, and (iii) payment of the Exercise Price in U.S. dollars [in cash or by cashier's check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] payable to the account of the Corporation. By [5:00 P.M.], New York City time, on the New York Business Day on which such Exercise Notice is received (or deemed to have been received), the Warrant Agent shall A-3 notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the number of Warrants in respect of which Exercise Notices, not rejected pursuant to the Debt Warrant Agreement, were received (or deemed to have been received) at or prior to [3:00 P.M.], New York City time, on such date, the number of such Exercise Notices that were rejected by the Warrant Agent pursuant to the Debt Warrant Agreement and the number of Warrants to which such rejected Exercise Notices relate. By [5:00 P.M.], New York City Time, on the New York Business Day following the Exercise Date for such Warrants the Warrant Agent shall send notice of confirmation of exercise in substantially the form of Exhibit D to the Debt Warrant Agreement to the appropriate [Depository Participant] [Holder]. At or before [3:00 P.M.], New York City time, on the [fifth] New York Business Day following the Exercise Date for such Warrants, the Corporation shall issue, and shall cause the Trustee to authenticate and deliver, pursuant to the Indenture, in authorized denominations, to or upon the order of the Holder of such Warrants, the Warrant Debt Security or Warrant Debt Securities to which such Holder is entitled, in fully registered form, registered in such name or names as may be directed by such Holder in the Exercise Notice relating to such Exercised Warrant. [The Warrant Agent will cause its records to be marked to reflect the reduction in the number of Warrants represented by this Global Warrant Certificate by the number of Warrants for which payment has been made in accordance with the Index Warrant Agreement.] [If this Definitive Warrant Certificate shall be surrendered to the Warrant Agent for exercise of fewer than all the Warrants represented hereby, the Warrant Agent shall issue and deliver to the Holder of the Warrants represented hereby by first class mail at the expense of the Corporation a Definitive Warrant Certificate representing all Warrants remaining unexercised after such exercise.] The Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and treat the registered Holder hereof as the absolute Holder of all right, title and interest in the Warrants evidenced hereby (notwithstanding any notation of ownership or other writing hereon) for any purpose and as the Person entitled to exercise the rights represented by the Warrants evidenced hereby, and neither the Corporation nor the Warrant Agent nor any agent of the Corporation or the Warrant Agent shall be affected by any notice to the contrary, except that the A-4 Corporation and the Warrant Agent shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated herein and in the Index Warrant Agreement. The Warrant Debt Securities to be issued and delivered upon the exercise of Warrants evidenced by this Warrant Certificate will be issued under and in accordance with an Indenture, [dated as of November 1, 1991, as amended by the First Supplemental Indenture, dated as of September 1, 1993 (as so amended, and as further amended from time to time, the "Indenture"), between the Corporation and The Chase Manhattan Bank (National Association)] [dated as of April 1, 1992, as amended by the First Supplemental Indenture, dated as of January 15, 1993 (as so amended, and as further amended from time to time, the "Indenture"), between the Corporation and Marine Midland Bank, N.A.] [dated as of ________ __, 199_ (as amended from time to time, the "Indenture"), between the Corporation and ______________], as trustee (such trustee, and any successors to such trustee, the "Trustee"), and will be subject to the terms and provisions contained in the Warrant Debt Securities and in the Indenture. Copies of the Indenture, including the form of the Warrant Debt Securities, are on file at the corporate trust office of the Trustee [and at __________]. [If Debt Securities with Warrants that are not immediately detachable are offered -- Prior to the Detachable Date, this Warrant Certificate may be exchanged or transferred only together with the [title of Offered Debt Security] (the "Offered Debt Security") to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Debt Security. Additionally, on or prior to the Detachable Date, each transfer of such Offered Debt Security on the register of the Offered Debt Securities shall operate also to transfer this Warrant Certificate. After the Detachable Date, and subject to the terms of the Debt Warrant Agreement,] [If Debt Securities with Warrants that are immediately detachable or if Warrants alone are offered -- Subject to the terms of the Debt Warrant Agreement,] upon due presentment for registration of transfer or exchange of this [Global] [Definitive] Warrant Certificate at the Warrant Agent Office, the Corporation shall execute and the Warrant Agent shall countersign and deliver in the name of the designated transferee a new [Global] [Definitive] Warrant Certificate or [Global] [Definitive] Warrant Certificates of like tenor and representing in the aggregate a like number of unexercised Warrants as evidenced by this [Global] [Definitive] Warrant A-5 Certificate at the time of such registration of transfer, which shall be issued to the designated transferee in exchange for this [Global] [Definitive] Warrant Certificate, subject to the limitations provided in the Debt Warrant Agreement, without charge. The Warrants shall not entitle the Owner or Holder thereof to any of the rights of a registered owner of the Warrant Debt Securities, including, without limitation, the right to receive the payment of principal of, premium, if any, or interest, if any, on the Warrant Debt Securities or to enforce any of the covenants in the Warrant Debt Securities or the Indenture[, except to the extent that the consent of the Owners or Holders of Warrant Certificates is expressly required by the terms of the Warrant Debt Securities for certain modifications of the Warrant Debt Securities]. [No amendment or modification of the Indenture or the forms of the Warrant Debt Securities that would adversely affect the rights of the Owners or Holders of Warrants shall be made prior to the issuance of any Warrant Debt Securities without the written consent of the Owners or Holders of Warrants representing the right to purchase at least a majority of the maximum principal amount of the Warrant Debt Securities that may be issued pursuant to Warrants that may be issued pursuant to this Agreement.] This [Global] [Definitive] Warrant Certificate and the Debt Warrant Agreement are subject to amendment as provided in the Debt Warrant Agreement. THIS [GLOBAL] [DEFINITIVE] WARRANT CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This [Global] [Definitive] Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent. A-6 IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal. Dated as of ________ __, 199__ BANKERS TRUST NEW YORK CORPORATION By:___________________________ Name: Title: [SEAL] Attest:_______________________ Name: Title: Countersigned on the date above written: [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: A-7 EXHIBIT B-1 Form of Exercise Notice for Warrants Represented by a Global Warrant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation Debt Warrants Expiring ________ __, 199__ (the "Warrants") 1. We refer to the Debt Warrant Agreement, dated as of ________ __, 199__ (the "Debt Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). On behalf of certain beneficial owners, each of whom is exercising no fewer than [__________] Warrants covered by this Notice and whose Warrants are held through the Depository in our name, we hereby irrevocably exercise [_____________] Warrants (the "Exercised Warrants"). 2. We have instructed the Depository to deliver the Exercised Warrants free through the Depository to the Warrant Account [Account No. _______________])[, and we have made payment of the Exercise Price as provided in Section 2.01(b) of the Debt Warrant Agreement]. 3. We hereby certify that we are a participant of [The Depository Trust Company] (the "Depository") with the present right to use and receive its services. 4. We hereby acknowledge that if you determine that this Exercise Notice has not been duly completed, or is not in proper form, or you are unable to verify that we are a participant of the Depository as provided above, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered. 5. We hereby direct you to make payment to us of amounts payable to the beneficial owners of the Tendered Warrants as a result of the exercise of the Tendered Warrants hereunder as follows: [ ] By cashier's check or an official bank check; or [ ] By wire transfer to the following U.S. dollar bank account in the United States: (Minimum payments of $100,000 only) Bank:_________________________________ Account No.:__________________________ ABA Routing No.:______________________ Reference:____________________________ Capitalized terms used herein and not defined have the meanings assigned to them in the Debt Warrant Agreement. Dated: ________ __, 199__ [NAME OF DEPOSITORY PARTICIPANT] [Participant Number] By:______________________ Name: Title: [Address] Telephone: Facsimile: B-1-2 EXHIBIT B-2 Form of Exercise Notice for Warrants Represented by a Definitive Warrant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation Debt Warrants Expiring ________ __, 199__ (the "Warrants") 1. We refer to the Debt Warrant Agreement, dated as of ________ __, 199__ (the "Debt Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby irrevocably exercise [_____________] Warrants (the "Exercised Warrants") and deliver to you herewith a Definitive Warrant Certificate or Certificates, registered in the name of the undersigned, representing a number of Warrants at least equal to the number of Exercised Warrants and payment of the Exercise Price as provided in Section 2.01(b) of the Debt Warrant Agreement. 2. We hereby acknowledge that if you determine that this Exercise Notice has not been duly completed or is not in proper form, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered. 3. We hereby direct you to make payment of amounts payable to us as a result of the exercise of the Warrants hereunder as follows: [ ] By cashier's check or an official bank check; or [ ] By wire transfer to the following U.S. dollar bank account in the United States: (Minimum payments of $100,000 only) Bank:_________________________________ Account No.:__________________________ ABA Routing No.:______________________ Reference:____________________________ Capitalized terms used herein and not defined have the meanings assigned to them in the Debt Warrant Agreement. Dated: ________ __, 199__ [NAME OF HOLDER] By:______________________ Name: Title: [Address] Telephone: Facsimile: B-2-2 EXHIBIT C Form of Rejection Notice [NAME OF DEPOSITORY PARTICIPANT OR HOLDER], [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation Debt Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Debt Warrant Agreement, dated as of ________ __, 199__ (the "Debt Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent"). In the case of Exercised Warrants represented by a Global Warrant Certificate and rejected pursuant to Section 2.02(c)(iv) of the Debt Warrant Agreement: You are hereby notified that [the Exercise Notice delivered by you was determined by us not to have been [duly completed] [in proper form]] [we were not able to verify that you are a Depository Participant of [The Depository Trust Company] in the manner, and pursuant to the procedures], as set forth in the Debt Warrant Agreement. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form. In the case of Tendered Warrants represented by a Definitive Warrant Certificate and rejected pursuant to Section 2.02(c)(ii) of the Debt Warrant Agreement: You are hereby notified that [the Exercise Notice delivered by you was determined by us not to have been [duly completed] [in proper form]] [the Definitive Warrant Certificate delivered by you was determined by us not to have been in proper form], as set forth in the Debt Warrant Agreement. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form. Capitalized terms used herein and not defined have the meanings assigned to them in the Debt Warrant Agreement. Dated: ________ __, 199__ [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: C-2 EXHIBIT D Form of Confirmation of Exercise [NAME OF DEPOSITORY PARTICIPANT OR HOLDER], [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Debt Warrant Agreement, dated as of ________ __, 199__ (the "Debt Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent"). We hereby confirm receipt of your Exercise Notice with respect to ____________ Warrants (the "Exercised Warrants"), and the [Definitive Warrant Certificates representing the] Warrants relating thereto, which Exercise Notice [and Definitive Warrant Certificates] we have found to be duly completed and in good order[, and we have verified, in the manner provided in the Debt Warrant Agreement, that you are a Depository Participant]. Capitalized terms used herein and not defined have the meanings assigned to them in the Debt Warrant Agreement. Dated: ________ __, 199__ [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: EX-4.7 4 CURRENCY WARRANT AGREEMENT EXHIBIT 4.7 ================================================================================ CURRENCY WARRANT AGREEMENT dated as of ________ __, 199__ between BANKERS TRUST NEW YORK CORPORATION and [NAME OF WARRANT AGENT], as Warrant Agent --------------------------- [Name of Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__ ================================================================================ TABLE OF CONTENTS Page PARTIES....................................................... 1 RECITALS...................................................... 1 ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES Section 1.01. The Warrants; Issuance of Warrants; Book-Entry Procedures; Successor Depository..................................... 1 Section 1.02. Form; Denominations; Execution, Countersignature, Delivery and Dating of Global Warrant Certificates................................... 4 Section 1.03. Definitive Warrant Certificates................ 5 Section 1.04. Maintenance of Warrant Register; Registration of Transfers and Exchanges of Global Warrant Certificates................................... 7 Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant Certificates.................... 9 Section 1.06. Cancellation of Warrants....................... 10 ARTICLE II [EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS Section 2.01. Duration of Warrants; Method of Exercise; Minimum [and Maximum] Exercise Amounts; Notice of Exercise....................................... 11 Section 2.02. Exercise of Warrants........................... 14 Section 2.03. Automatic Exercise of Warrants................. 21 [Section 2.04. Cancellation of Warrants...................... 24 [Section 2.05. Discontinuance or Modification of Base Currency.................................. 24 Section 2.06. Designation of Agent for Receipt of Notice......................................... 24 [Section 2.07. Extraordinary Events.......................... 24 [Section 2.08. Temporary Suspension of the Right to Exercise the Warrants....................... 24 ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS Section 3.01. Treatment of Holders........................... 24 Section 3.02. Holder or Owner of Warrant May Enforce Rights................................. 25 ARTICLE IV CONCERNING THE WARRANT AGENT Section 4.01. Warrant Agent.................................. 25 Section 4.02. Certain Duties of the Warrant Agent.......................................... 26 Section 4.03. Conditions of Warrant Agent's Obligations.................................... 26 Section 4.04. Compliance With Applicable Laws................ 29 Section 4.05. Corporate Warrant Agent Required; Eligibility.................................... 29 Section 4.06. Resignation and Removal; Appointment of Successor....................... 29 Section 4.07. Acceptance of Appointment by Successor...................................... 30 Section 4.08. Merger, Conversion, Consolidation or Succession to Business...................... 31 ARTICLE V CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE Section 5.01. Consolidations and Mergers of the Corporation and Sales, Leases and Conveyances Permitted Subject to Certain Conditions............................. 32 ARTICLE VI SUPPLEMENTAL AGREEMENTS Section 6.01. Amendment of Currency Warrant Agreement...................................... 33 Section 6.02. Form of Approval of Supplemental Agreements by Owners or Holders................ 34 Section 6.03. Effect of Supplemental Agreements.............. 35 -ii- Section 6.04. Reference in Warrants to Supplemental Agreements........................ 35 ARTICLE VII COVENANTS OF THE CORPORATION Section 7.01. Listing of Warrants on National Securities Exchange............................ 35 Section 7.02. Governmental Approvals......................... 36 Section 7.03. Payment of Cash Settlement Value [or Cancellation Amount]....................... 36 Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys............................... 36 Section 7.05. Corporate Existence............................ 37 ARTICLE VIII MISCELLANEOUS Section 8.01. Reopening of Issue of Warrants................. 37 Section 8.02. Payment of Taxes............................... 37 Section 8.03. Notices and Demands to the Corporation and Warrant Agent.................. 38 Section 8.04. Addresses for Notices.......................... 38 Section 8.05. Notices to Owners and Holders.................. 38 SECTION 8.06. GOVERNING LAW.................................. 38 Section 8.07. Benefits of Currency Warrant Agreement...................................... 38 Section 8.08. Successors and Assigns......................... 39 Section 8.09. Currency Warrant Agreement and Warrants Solely Corporate Obligations.................................... 39 Section 8.10. Severability................................... 39 Section 8.11. Headings....................................... 39 Section 8.12. Counterparts................................... 39 Section 8.13. Inspection of Currency Warrant Agreement...................................... 39 Exhibit A Form of Warrant Certificate Exhibit B-1 Form of Exercise Notice from Depository Participant Exhibit B-2 Form of Exercise Notice from Holder of Definitive Warrant Certificate Exhibit C Form of Rejection Notice Exhibit D Form of Confirmation of Exercise Exhibit E-1 Form of Depository Participant Certificate -iii- Exhibit E-2 Form of Holder Certificate -iv- CURRENCY WARRANT AGREEMENT CURRENCY WARRANT AGREEMENT, dated as of ________ __, 199__ (as modified, amended or supplemented, this "Agreement"), between BANKERS TRUST NEW YORK CORPORATION, a corporation organized and existing under the laws of the State of New York (the "Corporation"), and [NAME OF WARRANT AGENT], a [banking association] [corporation] organized and existing under the laws of ______________, as Warrant Agent (the "Warrant Agent"). W I T N E S S E T H: WHEREAS, the Corporation proposes to sell [put] [call] warrants (each, a "Warrant") representing the right to receive from the Corporation the Cash Settlement Amount (as defined in Section 2.02(f)) in [U.S. dollars (specify other Reference Currency if applicable)] of the right to [purchase] [sell] [(specify base amount)] of [(specify Base Currency)] (the "Base Currency") at a price of [(specify Strike Price, including currency)]; and WHEREAS, the Corporation desires the Warrant Agent to act on behalf of the Corporation, and the Warrant Agent is willing so to act, in connection with the issuance, transfer, exchange, exercise and cancellation of the Warrants, and the Corporation desires to set forth herein, among other things, the provisions of the Warrants and the terms and conditions under which they may be issued, transferred, exchanged, exercised and canceled; NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES Section 1.01. The Warrants; Issuance of Warrants; Book-Entry Procedures; Successor Depository. (a) Each Warrant shall represent the right, subject to the provisions contained herein and therein, to receive the Cash Settlement Value (as defined in Section 2.02(g)) [or the Cancellation Amount (as defined in Section 2.04(b)), as the case may be,] of such Warrant. Such Cash Settlement Value [or Cancellation Amount, as the case may be,] shall be payable in [U.S. dollars (specify other currency if applicable)]. In no event shall any registered holder of a Warrant (each, a "Holder") or any Owner (as defined in Section 1.01(c)) be entitled to receive any interest on any Cash Settlement Value [or Cancellation Amount, as the case may be]. No Warrant shall require or entitle the Holder or Owner thereof to sell, deliver, purchase or take delivery of any amount of the Base Currency to or from the Corporation, nor shall the Corporation be under any obligation to purchase or take delivery of, or sell or deliver, any amount of such Base Currency to or from the Holders or Owners thereof. (b) The Warrants shall constitute direct, unconditional and unsecured obligations of the Corporation. (c) The Warrants shall initially be issued in book-entry form and represented by one or more global certificates (each, a "Global Warrant Certificate"). Owners of beneficial interests in a Global Warrant Certificate (each, an "Owner") shall not be entitled to receive definitive certificates evidencing the Warrants; provided, however, that the Corporation shall issue Warrants in definitive form (each, a "Definitive Warrant Certificate", and with the Global Warrant Certificates, the "Warrant Certificates") in exchange for a Global Warrant Certificate if (i) the Depository (as defined in Section 1.01(d)) has notified the Corporation that it is unwilling or unable to continue as Depository for such Global Warrant Certificate or if at any time it has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, at a time when it is required to be so registered in order to act as Depository, and a successor Depository is not appointed by the Corporation within 90 days, (ii) the Corporation at any time shall determine to have the Warrants represented by Definitive Warrant Certificates and shall execute and deliver to the Warrant Agent a written order signed in the name of the Corporation by its Chairman of the Board, its Vice Chairman, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary (each such order, a "Corporation Order") stating that the Corporation wishes to issue Warrants in definitive form in exchange for such Global Warrant Certificate, or (iii) there shall have occurred and be continuing a default in the payment of the Cash Settlement Amount [or Cancellation Amount, as the case may be,] with respect to the Warrants. In any such instance, and in accordance with the provisions of this Agreement, -2- each Owner shall be entitled to have registered in its name the number of Warrants in definitive form equivalent to such Owner's beneficial interest in such Global Warrant Certificate and shall be entitled to physical delivery of Definitive Warrant Certificates representing such Warrants by the Depository Participant or Indirect Participant (each as defined in Section 1.01(d)) through which such Owner's beneficial interest is reflected. (d) Each Global Warrant Certificate shall initially be registered in the name of, and the Holder of each Warrant represented by such Global Warrant Certificate shall be, [The Depository Trust Company] or its agent (the "Depository", which term shall include any nominee of the Depository and any successor depository selected by the Corporation as provided in Section 1.01(e)), and shall be deposited with the Depository or its agent for credit to the accounts of the Depository Participants as shown on the records of the Depository from time to time. The Warrant holdings of Depository Participants shall be recorded on the books of the Depository. The Warrant holdings of Indirect Participants and of Owners who are customers of Depository Participants shall be reflected on the books and records of such Depository Participants and shall not be known to the Warrant Agent, the Corporation or the Depository. The Warrant holdings of Owners who are customers of Indirect Participants shall be reflected on the books and records of such Indirect Participants and shall not be known to the Warrant Agent, the Corporation, the Depository Participants or the Depository. Neither the Corporation nor the Warrant Agent shall have any responsibility or liability for any aspect of the records relating to beneficial ownership interests in a Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to any such beneficial ownership interest. As used herein, the term "Depository Participant" shall include any participant in the Depository's system and, for purposes of this Agreement, shall also mean any participant in the book-entry system of any successor Depository. As used herein, the term "Indirect Participant" shall include any other bank, securities dealer, trust company or other Person (as defined below) that clears or maintains a custodial relationship with a Depository Participant, either directly or indirectly. As used herein, the term "Person" shall include any individual, corporation, partnership, joint venture, association, joint- stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. (e) The Corporation may from time to time select a new Person to act as Depository and, if such selection is -3- made, the Corporation shall promptly give the Warrant Agent and the existing Depository notice to such effect identifying the new Depository. As promptly as practicable thereafter, the Depository shall deliver each Global Warrant Certificate then held by it to the Warrant Agent, and the Warrant Agent shall register the transfer of such Global Warrant Certificate to the new Depository as provided in Section 1.04. Appropriate changes may be made in each Global Warrant Certificate, and in the notice of exercise and the related notices delivered in connection with an exercise or deemed exercise of Warrants to reflect the selection of the new Depository. Section 1.02. Form; Denominations; Execution, Countersignature, Delivery and Dating of Global Warrant Certificates. (a) At any time and from time to time after the execution and delivery of this Agreement, the Corporation may deliver one or more Global Warrant Certificates, each representing any integral number of Warrants [not exceeding ________________ Warrants originally issued,] executed by the Corporation as set forth in Section 1.02(b), to the Warrant Agent for countersignature, together with a Corporation Order for the countersignature and delivery of such Warrants, and the Warrant Agent shall manually countersign and deliver such Warrants in accordance with such Corporation Order. During such time as Warrants shall be represented by Global Warrant Certificates, the Corporation may issue additional Warrants in accordance with the terms of this Agreement either by issuing an additional Global Warrant Certificate or by issuing a new Global Warrant Certificate in exchange for the existing Global Warrant Certificate, provided that any such exchange shall conform to the requirements set forth in Section 1.04(f). (b) Each Global Warrant Certificate, whenever issued, shall be in registered form substantially in the form of Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement. Each Global Warrant Certificate shall be printed, lithographed, typewritten, mimeographed or engraved on steel engraved borders or otherwise reproduced in any other manner as may be approved by the officers executing the same (such execution to be conclusive evidence of such approval) and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the same may approve (such execution to be conclusive evidence of such approval) and that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or -4- with any rule or regulation made pursuant thereto, or with any rule or regulation of any securities exchange on which the Warrants may be listed, or of the Depository, or to conform to usage. Each Global Warrant Certificate shall be signed on behalf of the Corporation by its Chairman of the Board, its Vice Chairman, its President or one of its Vice Presidents, under its corporate seal reproduced thereon and attested by its Secretary or one of its Assistant Secretaries. The signature of any such officer on any Global Warrant Certificate may be either manual or facsimile. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Global Warrant Certificate that has been duly countersigned and delivered by the Warrant Agent. (c) No Global Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, unless such Global Warrant Certificate has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Global Warrant Certificate executed by the Corporation shall be conclusive evidence, and the only evidence, that such Global Warrant Certificate so countersigned has been duly issued hereunder. (d) Any Global Warrant Certificate bearing the manual or facsimile signatures of individuals who were at the time of such signature the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the countersignature and delivery of such Global Warrant Certificate or did not hold such offices at the date of such Global Warrant Certificate. (e) Each Global Warrant Certificate shall be dated the date of its countersignature. Section 1.03. Definitive Warrant Certificates. (a) Any Definitive Warrant Certificate issued in accordance with Section 1.01(c), whenever issued, shall be in registered form substantially in the form of Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or necessary or desirable for individual Definitive Warrant Certificates, provided that each such Definitive Warrant Certificate shall have imprinted on the reverse thereof the Exercise Notice substantially in the form of Exhibit B-2. Each Definitive Warrant Certificate may represent any integral number of Warrants [not exceeding ________________ Warrants originally issued], shall be -5- printed, lithographed, typewritten, mimeographed or engraved on steel engraved borders or otherwise reproduced in any other manner as may be approved by the officers executing the same (such execution to be conclusive evidence of such approval), and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the same may approve (such execution to be conclusive evidence of such approval) and that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any securities exchange on which the Warrants may be listed, or of the Depository, or to conform to usage. Each Definitive Warrant Certificate shall be signed on behalf of the Corporation upon the same conditions, in substantially the same manner and with the same effect as set forth in Section 1.02 with respect to Global Warrant Certificates. (b) Each Definitive Warrant Certificate, when so signed on behalf of the Corporation, shall be delivered to the Warrant Agent together with a Corporation Order for the countersignature and delivery of such Warrants, and the Warrant Agent shall manually countersign and deliver such Warrants in accordance with such Corporation Order upon the same conditions, in substantially the same manner and with the same effect as set forth in Section 1.02 with respect to Global Warrant Certificates. Each Definitive Warrant Certificate shall be dated the date of its countersignature. (c) No Definitive Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, unless such Definitive Warrant Certificate has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Definitive Warrant Certificate executed by the Corporation shall be conclusive evidence, and the only evidence, that such Definitive Warrant Certificate so countersigned has been duly issued hereunder. (d) Any Definitive Warrant Certificate bearing the manual or facsimile signatures of individuals who were at the time of such signature the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the countersignature and delivery of such Definitive Warrant Certificate or did not hold such offices at the date of such Definitive Warrant Certificate. -6- (e) Definitive Warrant Certificates delivered in exchange for a Global Warrant Certificate shall be registered in such names and addresses (including tax identification numbers) and in such denominations as shall be requested in writing by the Depository or its nominee in whose name such Global Warrant Certificate is registered, upon written certification to the Corporation and the Warrant Agent, in form satisfactory to each of them, of the existing beneficial ownership interests in such Global Warrant Certificate. (f) The Holder of any Warrant represented by a Definitive Warrant Certificate shall be the Person in whose name such Definitive Warrant Certificate is registered in the Warrant Register (as defined in Section 1.04) at such time. Section 1.04. Maintenance of Warrant Register; Registration of Transfers and Exchanges of Global Warrant Certificates. (a) The Corporation shall cause to be kept at the Warrant Agent Office (as defined in Section 1.04(b)) a register (the "Warrant Register"), which may be maintained electronically and in which, subject to such reasonable regulations as it may prescribe, the Corporation shall provide for the registration and registration of transfer, exchange, exercise and cancellation of Warrants. The Warrant Agent is hereby appointed "Warrant Registrar" for the purpose of registering Warrant Certificates and transfers and exchanges of Warrant Certificates as herein provided. (b) A Warrant Certificate may be transferred at the option of the Holder thereof upon surrender of such Warrant Certificate at the office or agency of the Warrant Agent maintained for the purpose of transferring, exchanging, exercising and canceling the Warrants, which shall be south of Chambers Street in the Borough of Manhattan, The City of New York (the "Warrant Agent Office"), and which is, on the date of this Agreement, _______________________, New York, New York, _____, Attention: [Corporate Trust Department], or at the office of any successor Warrant Agent as provided in Article IV. Upon any such registration of transfer, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, in the name of the designated transferee a new Global Warrant Certificate or Definitive Warrant Certificate, as the case may be, of like tenor, of any authorized denomination and representing in the aggregate a like number of unexercised Warrants as evidenced by such Warrant Certificate at the time of such registration of -7- transfer, and bearing a number not contemporaneously outstanding. (c) A Warrant Certificate may be exchanged at the option of the Holder thereof for other Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, of like tenor, of any authorized denomination and representing in the aggregate a like number of unexercised Warrants, upon surrender of such Warrant Certificate at the Warrant Agent Office. Whenever any Warrant Certificate is so surrendered for exchange, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, the Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, that the Holder of such exchanged Warrant Certificate is entitled to receive and bearing a number not contemporaneously outstanding. (d) Any Warrant Certificate presented or surrendered for registration of transfer or for exchange shall be duly endorsed or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Corporation, duly signed by the registered Holder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a bank or trust company, by a broker or dealer that is a member of the National Association of Securities Dealers, Inc. or by a member of a national securities exchange. (e) Except as otherwise provided herein or in a Global Warrant Certificate, the Warrant Agent shall register the transfer of such Global Warrant Certificate on the records of the Warrant Agent only to the Depository, to a nominee of the Depository, to a successor Depository or to a nominee of the successor Depository. (f) A Global Warrant Certificate may be exchanged for a new Global Warrant Certificate to reflect the issuance by the Corporation of additional Warrants[; provided, however, that in no event shall the number of Warrants represented by any Global Warrant Certificate exceed ___________________ originally issued]. To effect such an exchange, the Corporation shall deliver to the Warrant Agent a new Global Warrant Certificate duly executed on behalf of the Corporation as provided in Section 1.02, together with a Corporation Order for the countersignature and delivery of such Warrants. The Warrant Agent shall countersign such new Global Warrant Certificate as provided in Section 1.02 and in accordance with such Corporation Order, and shall deliver such new Global Warrant Certificate to the Depository in -8- exchange for, and upon receipt of, the Global Warrant Certificate then held by the Depository. The Warrant Agent shall cancel the Global Warrant Certificate delivered to it by the Depository and return the canceled Global Warrant Certificate to the Corporation. (g) All Warrant Certificates issued upon any registration of transfer or exchange of Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, shall be valid obligations of the Corporation, evidencing the same obligations of the Corporation and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered upon such registration of transfer or exchange. The Warrant Agent shall not be required to effect any exchange or transfer that would result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. (h) No service charge shall be made for any registration of transfer or exchange of Warrant Certificates, but the Corporation may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such transfer or exchange. Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. (a) If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Corporation shall execute, and the Warrant Agent shall countersign and deliver in exchange therefor, as provided in Section 1.02 or 1.03, as the case may be, a new Warrant Certificate of like tenor representing a like number of unexercised Warrants and bearing a number not contemporaneously outstanding. (b) If there shall be delivered by a Holder of a Warrant Certificate to the Corporation and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate, (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, and (iii) funds sufficient to cover any cost or expense to the Corporation (including any fees charged by the Warrant Agent) relating to the issuance of a new Warrant Certificate, then, in the absence of notice to the Corporation or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new -9- Warrant Certificate of like tenor representing a like number of unexercised Warrants and bearing a number not contemporaneously outstanding. (c) If the Warrants evidenced by any such mutilated, destroyed, lost or stolen Warrant Certificate have been exercised, or have been or are about to be deemed to be exercised, the Corporation in its discretion may, instead of issuing a new Warrant Certificate, treat the same as if it had received written irrevocable notice of exercise in good form in respect thereof, as provided herein. (d) Upon the issuance of any new Warrant Certificate under this Section, the Corporation may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) connected therewith. (e) Every new Warrant Certificate issued pursuant to this Section 1.05 in lieu of any mutilated, destroyed, lost or stolen Warrant Certificate shall constitute an original additional contractual obligation of the Corporation, whether or not the mutilated, destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly issued hereunder. (f) The provisions of this Section 1.05 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Warrant Certificates. Section 1.06. Cancellation of Warrants. (a) If the Corporation shall purchase or otherwise acquire Warrants represented by a Global Warrant Certificate, such Warrants may, at the option of the Corporation and upon notification to the Warrant Agent, be surrendered free through a Depository Participant for credit to the Warrant Account (as defined in Section 2.01(b)) and if so credited, the Warrant Agent shall promptly note the cancellation of such Warrants by notation on the records of the Warrant Agent and on the Warrant Register. (b) When all of the Warrants represented by any Global Warrant Certificate have been exercised by the Owner thereof, automatically exercised or otherwise canceled, and -10- upon receipt of the same by the Warrant Agent, the Warrant Agent shall promptly cancel such Global Warrant Certificate. (c) The Corporation may at any time deliver to the Warrant Agent for cancellation any Definitive Warrant Certificates previously countersigned and delivered hereunder that the Corporation may have acquired in any manner whatsoever, and the Warrant Agent shall promptly cancel all Definitive Warrant Certificates so delivered. (d) All Warrant Certificates surrendered for exercise, registration of transfer or exchange or cancellation, if surrendered to any Person other than the Warrant Agent, shall be delivered to the Warrant Agent, and the Warrant Agent shall promptly cancel all such Warrant Certificates and all other Warrant Certificates surrendered to it for exercise, registration of transfer or exchange or cancellation. (e) No Warrant Certificate shall be countersigned in lieu of or in exchange for any Warrant Certificate canceled as provided in this Section 1.06 except as expressly permitted by this Agreement. All canceled Warrant Certificates held by the Warrant Agent shall be destroyed by it unless by written order the Corporation requests their return to it. ARTICLE II [EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS Section 2.01. Duration of Warrants; Method of Exercise; Minimum [and Maximum] Exercise Amounts; Notice of Exercise. (a) Subject to the limitations described herein, each Warrant may be exercised in whole but not in part on any New York Business Day (as defined in Section 2.01(f)) from [its date of issuance (specify other date if applicable)] until [3:00 P.M.], New York City time, on the earlie[st] of (i) [______________ (specify date upon which right to exercise Warrants expires)] or, if such date is not a New York Business Day, on the next succeeding New York Business Day (the "Expiration Date"), [or] (ii) the date of automatic exercise as provided in Section 2.03 [or (iii) the date of cancellation as provided in Section 2.04][; provided that the Corporation may temporarily suspend the right of the Holders to exercise their Warrants pursuant to the provisions of Section 2.08]. [No exercise price shall be payable by any Holder or Owner in connection with the exercise of any Warrant.] [The exercise price for each Warrant shall be $_____ and shall be payable [in U.S. -11- dollars (specify other currency if applicable)] (the "Exercise Price").] (b) Except in the case of automatic exercise, each Warrant may be exercised by: (i) in the case of any Warrant represented by a Global Warrant Certificate (each, a "Book-Entry Warrant"), (A) transfer of such Warrant on the records of the Depository free to the Warrant Agent's Depository Participant account (entitled ____________________), or such other account of the Warrant Agent at the Depository as the Warrant Agent shall specify (the "Warrant Account"), [and] (B) delivery to the Warrant Agent as provided in Section 2.01(d)(i)(C) of written notice (an "Exercise Notice") duly completed and executed by a Depository Participant acting on behalf of the Owner of such Warrant [and (C) payment of the Exercise Price [in U.S. dollars (specify other currency if applicable)] [in cash or by cashier's check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] payable to the account of the Corporation]; and (ii) in the case of Warrants represented by a Definitive Warrant Certificate (each, a "Certificated Warrant"), (A) surrender of such Definitive Warrant Certificate to the Warrant Agent at the Warrant Agent Office, [and] (B) delivery to the Warrant Agent as provided in Section 2.01(d)(ii)(C) of an Exercise Notice duly completed and executed by the Holder of such Warrant [and (C) payment of the Exercise Price [in U.S. dollars (specify other currency if applicable)] [in cash or by cashier's check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] payable to the account of the Corporation]; provided, however, that each Exercise Notice is subject to rejection by the Warrant Agent as provided herein. (c) Not fewer than [specify minimum exercise amount] [nor more than [specify maximum exercise amount]] Warrants may be exercised by or on behalf of any one Owner or, in the case of Certificated Warrants, any one Holder at any one time, except that no such minimum [or maximum] exercise amount shall apply in the case of (i) the automatic exercise of any Warrants, or (ii) the exercise of any Warrants on the Expiration Date. -12- (d) An Exercise Notice [may be conditioned as set forth in Section 2.02(b), but] shall [otherwise] be unconditional. Each Exercise Notice shall be irrevocable and: (i) in the case of any Book-Entry Warrant, shall (A) be in the form of Exhibit B-1 hereto, [(B) shall include a certification by the Depository Participant submitting such Exercise Notice that the Owners affected by such Exercise Notice are not Currency Country Residents (as defined in Section 2.01(f))] and (C) shall be sent to the Warrant Agent in writing at its address as set forth in such form of Exercise Notice or at such other address as the Warrant Agent may specify from time to time by notice given in accordance with Section 8.05; and (ii) in the case of any Certificated Warrant, shall (A) be in the form of Exhibit B-2 hereto and shall, unless otherwise agreed by the Corporation and the Warrant Agent, be set forth on the reverse of the Definitive Warrant Certificate representing such Certificated Warrant, [(B) shall include a certification by the Holder of such Certificated Warrants that such Holder is not a Currency Country Resident] and (C) shall be sent to the Warrant Agent in writing at its address as set forth in such form of Exercise Notice or at such other address as the Warrant Agent may specify from time to time by notice given in accordance with Section 8.05. (e) Except as provided in Section 2.02(c), the Warrant Agent and the Corporation shall be entitled to rely conclusively on any Exercise Notice received by the Warrant Agent with no duty of inquiry by either of them. (f) As used in this Agreement, "New York Business Day" means any day other than a Saturday or Sunday or a day on which the [New York Stock Exchange or American Stock Exchange (list any other relevant securities exchanges)] is not open for securities trading or banking institutions generally in The City of New York are authorized or required by law or executive order to close; "Currency Country Business Day" means any day other than (i) a Saturday or Sunday or a day on which banking institutions generally in [(specify name of Currency country)] are authorized or required by law or executive order to close or (ii) a day on which the [(list names of relevant exchanges)] are not open for business[; and "Currency Country Resident" means a resident of, or any corporation or other Person organized under the laws of [(specify name of Currency country)], its -13- territories, its possessions or other areas subject to its jurisdiction]. Section 2.02. Exercise of Warrants. (a) Except in the case of automatic exercise as provided in Section 2.03 [or cancellation as provided in Section 2.04] and subject to Section 2.02(c)([ii]) [and 2.02(f)], the exercise date (the "Exercise Date") for a Warrant shall be (i) the New York Business Day on which the Warrant Agent receives delivery of such Warrant to the Warrant Account, in the case of Book-Entry Warrants, or of the Definitive Warrant Certificate representing such Warrant at the Warrant Agent Office, in the case of Certificated Warrants, [and] an Exercise Notice relating to such Warrant in good order [and payment of the Exercise Price in the manner specified in Section 2.01(b)], if such receipt occurs at or prior to [3:00] P.M., New York City time, on such New York Business Day, and (ii) otherwise the New York Business Day next succeeding the day on which the Warrant Agent receives such Warrant[, the Exercise Price] and such Exercise Notice, which next succeeding New York Business Day shall be the day on which such Warrant[, Exercise Price] and Exercise Notice shall be deemed to have been received. If any Exercise Notice[, the related Exercise Price] or the Warrants to which such Exercise Notice relates are received after [3:00] P.M., New York City time, on the Expiration Date, such Exercise Notice shall be void and of no effect and shall be deemed not to have been delivered. Except in the case of automatic exercise as provided in Section 2.03, the "Valuation Date" for a Warrant shall be the first Currency Country Business Day next succeeding the Exercise Date of such Warrant. [The "Designated Exercise Date" for a Warrant shall be the date that, but for the provisions of Section 2.02(f), would be the Exercise Date for such Warrant in accordance with this Section 2.02(a).] [(b) Notwithstanding anything in this Agreement to the contrary, if a Depository Participant, in the case of Book-Entry Warrants, or a Holder, in the case of Certificated Warrants, has specified in its Exercise Notice that such Exercise Notice is conditional (a "Conditional Exercise Notice"), then such Conditional Exercise Notice shall be void and of no effect, and shall be disregarded for all purposes of this Agreement, if [Describe the terms upon which the Exercise Notice may be conditional, which may be as follows: the Spot Rate (as defined in Section 2.02(g)) on the day that, but for the provisions of this Section 2.02(b), would be the Valuation Date for such Warrants is more than __________ [above] [below] the Spot Rate on the [Designated] Exercise Date of such Warrants (or, if the [Designated] Exercise Date is not a Currency Country -14- Business Day, on the immediately preceding Currency Country Business Day) (the "Reference Value").] (c) Following receipt of proper delivery of any Warrant[, the Exercise Price] and the Exercise Notice related to such Warrant in accordance with Section 2.01(b), the Warrant Agent shall: [(i) deposit all funds received by it in payment of the Exercise Price of such Warrant to the account of the Corporation maintained with it for such purpose (unless otherwise instructed in writing by the Corporation), and advise the Corporation by telephone and in writing, by facsimile transmission or otherwise, at the end of each day on which any such payment is received of the amount so deposited to its account;] (ii)(A) in the case of a Book-Entry Warrant, promptly determine whether such Exercise Notice has been duly completed and is in proper form and verify that the Person that executed such Exercise Notice is listed as a Depository Participant in the most recent published edition of the Depository's Eligible Corporate Securities Book (or the comparable publication of any successor Depository) and, if such Person is not listed therein, make reasonable efforts to obtain verbal verification from the Depository's Planning Department (telephone number 212-709-1000) (or the comparable department of a successor Depository) that such Person is a Depository Participant; and (B) in the case of a Certificated Warrant, promptly determine whether such Exercise Notice has been duly completed and is in proper form and whether the Definitive Warrant Certificate representing such Warrant is in proper form; (iii)(A) in the case of a Book-Entry Warrant, if the Warrant Agent determines that such Exercise Notice has not been duly completed or is not in proper form, or is unable through the procedures described in clause ([ii])(A) above to verify that the Person that submitted such Exercise Notice is a Depository Participant, then the Warrant Agent shall reject such Exercise Notice and shall send to the Depository Participant that submitted such Exercise Notice a notice of rejection substantially in the form of Exhibit C hereto (a "Rejection Notice") and redeliver the Warrants to which such rejected Exercise Notice relates free through the facilities of the Depository to the account from which they were transferred; and (B) in the case of a Certificated Warrant, if the -15- Warrant Agent determines that such Exercise Notice has not been duly completed or is not in proper form, or that the Definitive Warrant Certificate representing such Warrant is not in proper form, then the Warrant Agent shall reject such Exercise Notice and shall send a Rejection Notice to the Holder of such Warrants and return such Definitive Warrant Certificate to such Holder by first class mail at the expense of the Corporation; (iv) by [5:00 P.M.], New York City time, on the New York Business Day on which such Exercise Notice is received (or deemed to have been received), notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of (A) the total number of Warrants in respect of which Exercise Notices were received (or deemed to have been received) at or prior to [3:00 P.M.], New York City time, on such date [and] (B) the number of such Exercise Notices that were rejected by the Warrant Agent pursuant to clause ([iii]) above and the aggregate number of Warrants to which such rejected Exercise Notices relate[, and (C) the number of such Exercise Notices that were Conditional Exercise Notices and the aggregate number of Warrants to which such Conditional Exercise Notices relate]; [(v) if any of such Exercise Notices are Conditional Exercise Notices, by [5:00 P.M.], New York City time, on the Valuation Date for such Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), (A) determine the Reference Value for such Warrants and the Spot Rate for the date that, but for the provisions of Section 2.02(b), would be the Valuation Date of such Warrants; (B) determine whether any Conditional Exercise Notices have become void pursuant to such Section 2.02(b); and (C) if so, promptly notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) and send a Rejection Notice to the appropriate Depository Participant or Holder, as the case may be, and (x) in the case of Book-Entry Warrants, redeliver such Warrants free through the facilities of the Depository to the account from which they were transferred or (y) in the case of Certificated Warrants, return such Warrants to such Holder by first class mail at the expense of the Corporation.] (vi) by [5:00 P.M.], New York City time, on the Valuation Date for such Warrants (or, if such Valuation -16- Date is not a New York Business Day, on the next succeeding New York Business Day), determine the aggregate number of Warrants covered by Exercise Notices that have not [become void pursuant to Section 2.02(b) or] been rejected pursuant to clause ([iii]) above (the "[Exercised] [Tendered] Warrants"); [(vii) by [5:00 P.M.], New York City time, on the Valuation Date for the Tendered Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), determine pursuant to Section 2.02(f) the number of such Tendered Warrants that shall not be Delayed Exercise Warrants (such Tendered Warrants, the "Exercised Warrants");] (viii) by [5:00 P.M.], New York City time, on the Valuation Date for the Exercised Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), (A) determine the Cash Settlement Value of the Exercised Warrants, (B) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the aggregate Cash Settlement Value with respect to such Exercised Warrants, and (C) send notice of confirmation of exercise in substantially the form of Exhibit D hereto to the appropriate Depository Participant or Holder, as the case may be; and (ix) promptly deliver a copy of each such Exercise Notice to the Corporation and advise the Corporation of such other matters relating to any of the Warrants covered thereby, whether or not they constitute [Tendered Warrants or] Exercised Warrants, as the Corporation shall reasonably request. (d) At or before [3:00 P.M.], New York City time, on the [second] New York Business Day following the Valuation Date for any Exercised Warrants (or, if such Valuation Date is not a New York Business Day, on the [third] New York Business Day after such Valuation Date) (such date, with respect to such Exercised Warrants, the "Settlement Date"), the Corporation shall make available to the Warrant Agent funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Exercised Warrants. On the New York Business Day on which the Corporation has made adequate funds available to the Warrant Agent at or prior to [3:00 P.M.], New York City time, the Warrant Agent shall make payment available (i) if the Exercised Warrants are Book-Entry Warrants, in the form of a wire transfer to the appropriate Depository Participant after [3:00 P.M.], New York City time, but prior to the -17- close of business, on such day, such payment to be in the amount of the aggregate Cash Settlement Value of the Exercised Warrants exercised by such Depository Participant, and (ii) if the Exercised Warrants are Certificated Warrants, in the form of one or more cashier's checks or official bank checks to each appropriate Holder after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of the Cash Settlement Value of the Exercised Warrants exercised by such Holder. In the case of payments by the Warrant Agent to a Depository Participant, the Warrant Agent shall have no responsibility for the crediting by such Depository Participant of the Cash Settlement Value of such Warrants to the appropriate Owners. (e) (i) The Warrant Agent shall cause its records, which may be kept electronically, to be marked to reflect the reduction in the number of Warrants evidenced by each Global Warrant Certificate by the number of such Warrants for which payment has been made available as provided in Section 2.02(d) promptly after such payment has been made available. In the absence of manifest error, the Warrant Agent's records shall be conclusive evidence as to such matters. (ii) If any Definitive Warrant Certificate shall be surrendered to the Warrant Agent for exercise of fewer than all the Warrants represented thereby, the Corporation shall execute, and the Warrant Agent shall countersign, as provided in Section 1.02 or 1.03, as the case may be, and deliver to the Holder of such Warrants by first class mail at the expense of the Corporation a new Definitive Warrant Certificate of like tenor representing all Warrants remaining unexercised after such exercise and bearing a number not contemporaneously outstanding. [(f) The Corporation may, at its sole option, elect to limit the aggregate number of Warrants for which any Designated Exercise Date shall be the Exercise Date to a number not less than ________________ (the "Maximum Exercisable Number"). (i) The Corporation may, at its sole option, notify the Warrant Agent in writing (including by facsimile transmission) not later than [3:00 P.M.], New York City time, on the Valuation Date with respect to any Tendered Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), that the Corporation has elected to exercise its option under this Section 2.02(f) to limit the number of such Tendered Warrants for which the -18- Exercise Date to which such Valuation Date relates shall be the Designated Exercise Date for such Warrants to a number (the "Elected Maximum Number") not smaller than the Maximum Exercisable Number. If the Warrant Agent shall not have received such notice by such time, none of the following provisions in this Section 2.02(f) shall apply to such Tendered Warrants, such Designated Exercise Date shall be the Exercise Date for such Tendered Warrants, and all of such Tendered Warrants shall be deemed to be "Exercised Warrants" for purposes of this Agreement. (ii) If the Warrant Agent shall have received the notice contemplated by clause (i) above by the time specified in such clause (i), then prior to [5:00 P.M.], New York City time, on such Valuation Date (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), the Warrant Agent shall select by lot from all such Tendered Warrants, subject to clause (iii) below, Tendered Warrants for which the Exercise Date shall be such Designated Exercise Date in an aggregate number equal to the Elected Maximum Number; provided that if, as a result of such selection, any Owner or Holder, as the case may be, would be deemed to have exercised less than [(specify minimum exercise amount)] Warrants, then the Warrant Agent shall first select additional Tendered Warrants of such Owners or Holders so that no such Owner or Holder shall be deemed to have exercised fewer than [(specify minimum exercise amount)] Warrants. Only the Tendered Warrants so selected shall be deemed to be "Exercised Warrants" for purposes of Section 2.02(c). The Tendered Warrants not so selected shall be referred to herein as "Delayed Exercise Warrants" and shall be subject to exercise as provided in clause (iii) below. (iii) For purposes of this Section 2.02, each Delayed Exercise Warrant shall be deemed to have a new Designated Exercise Date on the New York Business Day next succeeding its original Designated Exercise Date, and this Section 2.02 shall apply to such Delayed Exercise Warrants as if one or more Exercise Notices with respect to the Delayed Exercise Warrants had been received by the Warrant Agent prior to [3:00 P.M.], New York City time, on such New York Business Day, provided that (x) any Delayed Exercise Warrant with respect to which any such deemed Designated Exercise Date is on or after the earlier of the Expiration Date and the Delisting Date shall be subject to automatic exercise as provided in Section 2.03[, and (y) the Reference -19- Value for any Delayed Exercise Warrant covered by a Conditional Exercise Notice shall in any event be determined by reference to the original Designated Exercise Date therefor (or, if such date is not a Currency Country Business Day, on the immediately preceding Currency Country Business Day)]; provided, however, that, other than in the case of automatic exercise [or cancellation], if the aggregate number of such Delayed Exercise Warrants, together with any additional Tendered Warrants for which the Designated Exercise Date is such New York Business Day shall again exceed the Maximum Exercisable Number, the provisions of this Section 2.02(f) shall apply, mutatis mutandis, to the exercise of such Delayed Exercise Warrants and such additional Tendered Warrants, provided that such Delayed Exercise Warrants shall be given priority over such additional Tendered Warrants in the selection pursuant to clause (ii) above, and among such Delayed Exercise Warrants, priority in such selections shall be given to Warrants in the order of their original Designated Exercise Dates, with Warrants having the same original Designated Exercise Date being selected by lot as described in clause (ii) above. (iv) In connection with any issuance by the Corporation of additional Warrants under this Agreement, the Corporation shall have the right, but shall not be obligated, to increase the Maximum Exercisable Number.] (g) For purposes of this Agreement: The "Cash Settlement Value" of any Warrant that is exercised (whether exercised automatically or by Exercise Notice) shall mean the amount, stated in U.S. dollars, computed by subtracting [from 50] [50 from] an amount equal to 50 times a fraction, the numerator of which is the Spot Rate on the Exercise Date and the denominator of which is the Strike Price (as defined below), provided that if such amount is less than zero, the Cash Settlement Value shall be zero. The "Strike Price" of a Warrant shall mean [Insert amount or method for determining amount]. The "Spot Rate" on any date shall mean the offered spot rate of ________ [U.S. dollars (or specify other Reference Currency)] for ____________ [(specify Base Currency)] as quoted by __________ (the "Spot Rate Reference Bank") at 10:00 A.M., New York City time, on such date or, if such bank is not quoting such rate at -20- such time, the rate quoted by such other leading bank in the foreign exchange markets as may be selected by the Corporation in good faith and notified to the Warrant Agent. The Spot Rate shall be calculated to __________ decimal places. "U.S. dollars", "U.S.$" or "$" are references to the currency of the United States of America. "[Base currency] or "[_______________]" are references to the currency of [(specify name of Currency country)]. (h) Any notice to be given to the Corporation by the Warrant Agent pursuant to this Section 2.02 or Section 2.03 shall be by telephone (promptly confirmed in writing) or telecopy (receipt to be promptly confirmed by telephone). Any notice to be given to the Spot Rate Reference Bank pursuant to this Section 2.02 or Section 2.03 shall be by telecopy (receipt to be promptly confirmed by telephone). Section 2.03. Automatic Exercise of Warrants. (a) [Unless previously canceled pursuant to Section 2.04,] all Warrants with respect to which (i) there has been no proper delivery of Warrants to the Warrant Account, in the case of Book-Entry Warrants, or of Definitive Warrant Certificates to the Warrant Agent Office, in the case of Certificated Warrants[, or no delivery of the Exercise Price as provided in Section 2.01(b)] or no valid Exercise Notice has been received by the Warrant Agent at or prior to [3:00 P.M.], New York City time, on the earlier to occur of (A) the Expiration Date for such Warrants and (B) the last New York Business Day prior to the effective date on which the Warrants are delisted from, or permanently suspended from trading on, the __________ Stock Exchange without being accepted for listing on or prior to such New York Business Day on another United States national securities exchange (such New York Business Day, the "Delisting Date"), (ii) the Exercise Date has been postponed pursuant to Section 2.02(f) to a date on or after the earlier of the Expiration Date or the Delisting Date, [or (iii) [list other events causing automatic exercise of Warrants, if applicable]] -21- will be automatically exercised on such Expiration Date or Delisting Date [or on the date on which (specify other events leading to automatic exercise)] (any such date, a "Deemed Exercise Date") without any requirement of notice of exercise to the Warrant Agent. On the Deemed Exercise Date, all the Warrants will be canceled and will represent only a right to receive the Cash Settlement Value upon satisfaction of the requirements set forth in Section 2.03(b). The Valuation Date for such Warrants shall be the first Currency Country Business Day next succeeding such Deemed Exercise Date. (b) On the Valuation Date for the Warrants to be automatically exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), the Warrant Agent shall (i) determine the Cash Settlement Value of such Warrants; (ii) by [5:00 P.M.], New York City time, on such Valuation Date (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the Cash Settlement Value of such Warrants; and (iii) advise the Corporation of such other matters relating to the automatically exercised Warrants as the Corporation shall reasonably request. (c) At or before [3:00 P.M.], New York City time, on the [third] New York Business Day following the Valuation Date for any Warrants automatically exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not a New York Business Day, on the [fourth] New York Business Day after such Valuation Date) (such date, with respect to such Warrants, the "Settlement Date"), the Corporation shall make available to the Warrant Agent funds in an amount equal to, and for the payment of, [(y)] the aggregate Cash Settlement Value of such automatically exercised Warrants [minus (y) the aggregate Exercise Price with respect to such Warrants, provided that if such amount is less than zero, no such funds shall be made available]. On the New York Business Day on which the Corporation has made adequate funds available to the Warrant Agent at or prior to [3:00 P.M.], New York City time, the Warrant Agent shall make payment available (i) if the automatically exercised Warrants are Book-Entry Warrants, in the form of a wire transfer to the appropriate Depository Participant after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of [(x)] the aggregate Cash Settlement Value of the Warrants held at the time of automatic exercise by such Depository Participant [minus (y) the aggregate Exercise Price with -22- respect to such Warrants, provided that if such amount is less than zero, then no such payment shall be made], and (ii) if the automatically exercised Warrants are Certificated Warrants, in the form of one or more cashier's checks or official bank checks to each appropriate Holder after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of [(x)] the Cash Settlement Value of the Warrants registered in the name of such Holder on the date of automatic exercise [minus (y) the aggregate Exercise Price with respect to such Warrants, provided that if such amount is less than zero, then no such payment shall be made]; provided, however, that the Warrant Agent shall withhold any such payment in respect of any Warrant until the conditions set forth in Section 2.03(d) have been satisfied with respect to such Warrant. In the case of payments by the Warrant Agent to a Depository Participant, the Warrant Agent shall have no responsibility for the crediting by such Depository Participant of the Cash Settlement Value of such Warrants to the appropriate Owners. (d) The Warrant Agent shall withhold payment of the Cash Settlement Value with respect to any automatically exercised Warrant until: (i) if such Warrant is a Book-Entry Warrant, [(A)] such Warrant is delivered on the records of the Depository free to the Warrant Account [and (B) the Warrant Agent receives at the Warrant Agent Office a written certification substantially in the form of Exhibit E-1 hereto, dated no earlier than the Deemed Exercise Date, executed by a Depository Participant acting on behalf of the Owner of such Warrant, to the effect that such Owner is not a Currency Country Resident]; and (ii) if such Warrant is a Certificated Warrant, [(A)] the Definitive Warrant Certificate representing such Warrant is surrendered to the Warrant Agent at the Warrant Agent Office, [and (B) the Warrant Agent receives at the Warrant Agent Office a certification in the form of Exhibit E-2 hereto, dated no earlier than the Deemed Expiration Date, to the effect that the Holder of such Definitive Warrant Certificate is not a Currency Country Resident]. (e) When payment has been made in respect of all Warrants represented by a Warrant Certificate, the Warrant Agent shall, promptly upon receipt of such Warrant Certificate, cancel such Warrant Certificate and deliver it to the Corporation. -23- [Section 2.04. Cancellation of Warrants. (a) [insert conditions and effects of cancellation, if applicable].] (b) [The "Cancellation Amount" of a Warrant shall mean [Insert amount or method for determining amount].] [Section 2.05. Discontinuance or Modification of Base Currency. [(If Base Currency is a unit of two or more currencies, specify method for calculating Cash Settlement Value and Cancellation Amount in the event of a discontinuation or modification in such Base Currency)].] Section 2.06. Designation of Agent for Receipt of Notice. The Corporation may from time to time designate in writing to the Warrant Agent a single designee for receipt of all notices required to be given by the Warrant Agent to the Corporation pursuant to this Article II and all such notices thereafter shall be given in the manner herein provided by the Warrant Agent to such designee and each such notice shall be as effective as if given directly to the Corporation. [Section 2.07. Extraordinary Events. [(Specify conditions and effects of extraordinary events, if applicable)].] [Section 2.08. Temporary Suspension of the Right to Exercise the Warrants. [(Specify conditions and method of temporary suspension of right to exercise, if applicable)].] ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS Section 3.01. Treatment of Holders. (a) The Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and treat the Person in whose name each Global Warrant Certificate shall be registered in the records of the Warrant Agent as the absolute Holder of all right, title and interest in such Global Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for all purposes hereunder and as the Person entitled to exercise the rights represented by the Warrants evidenced thereby, whether or not such Warrants shall be exercised or deemed to be exercised, and neither the Corporation nor the Warrant Agent, nor any agent of the Corporation or the Warrant Agent -24- shall be affected by any notice to the contrary, except that the Warrant Agent and the Corporation shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated by Article II of this Agreement. (b) Prior to due presentment of a Definitive Warrant Certificate for registration of transfer, the Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may treat the Person in whose name such Definitive Warrant Certificate is registered as the absolute Holder of all right, title and interest in such Definitive Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for all purposes hereunder and as the Person entitled to exercise the rights represented by the Warrants evidenced thereby, whether or not such Warrants shall be exercised or deemed to be exercised, and neither the Corporation, the Warrant Agent nor any agent of the Corporation or the Warrant Agent shall be affected by notice to the contrary. Section 3.02. Holder or Owner of Warrant May Enforce Rights. Notwithstanding any other provision of this Agreement, any Owner, in the case of Book-Entry Warrants, and any Holder, in the case of Certificated Warrants, without the consent of the Warrant Agent or the Owner or Holder of any other Warrant, may, in and for such Owner's or Holder's own behalf, and for such Owner's or Holder's own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Corporation suitable to enforce, or otherwise in respect of, such Owner's or Holder's right to exercise, and to receive payment for, such Owner's or Holder's Warrants as provided in such Warrants and in this Agreement. ARTICLE IV CONCERNING THE WARRANT AGENT Section 4.01. Warrant Agent. The Corporation hereby appoints [name of Warrant Agent] as the Warrant Agent of the Corporation in respect of the Warrants upon the terms and subject to the conditions set forth herein and in the Warrants, and [name of Warrant Agent] hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it herein and in the Warrants and such further powers and authority acceptable to it to act on behalf of the Corporation as the Corporation may hereafter grant to or confer upon it. All of the terms and provisions with respect to such powers and authority -25- contained in the Warrants are subject to and governed by the terms and provisions hereof. Section 4.02. Certain Duties of the Warrant Agent. (a) Except during the continuation of a default in the performance by the Corporation of its obligations in respect of the Warrants, the Warrant Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Warrant Agent. (b) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Section 4.03. Conditions of Warrant Agent's Obligations. The Warrant Agent accepts its obligations set forth herein upon and subject to the terms and conditions hereof and of the Warrants, including the following, to all of which the Corporation agrees and to all of which the rights hereunder of the Owners and Holders from time to time of the Warrants shall be subject: (a) The Corporation agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Corporation for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses, disbursements and advances (including reasonable attorneys' fees and expenses and reasonable compensation, expenses and disbursements of its agents) incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Corporation also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without negligence, bad faith or breach of this Agreement on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder or with respect to the Warrants, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the -26- Corporation under this subsection (a) shall survive the exercise of the Warrants and the resignation or removal of the Warrant Agent. (b) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or thing suffered by it in reliance upon any Warrant, resolution, opinion, report, request, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties, provided that any request or direction of the Corporation shall be sufficiently evidenced by a Corporation Order delivered to the Warrant Agent, and any resolution of the Board of Directors shall be sufficiently evidenced by a copy of the resolution certified by the Secretary or an Assistant Secretary to have been duly adopted by the Board of Directors of the Corporation, or by a committee of such Board of Directors or an officer of the Corporation appointed by the Board of Directors of the Corporation for such purpose, and to be in full force and effect on the date of such certification and delivered to the Warrant Agent (any such resolution, a "Board Resolution"). (c) The Warrant Agent may consult with counsel satisfactory to it, which may include counsel to the Corporation, and the written opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such written opinion. (d) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any Corporation Order or Board Resolution, but the Warrant Agent, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. (e) The Warrant Agent, and any of its officers, directors and employees, in its individual or any other capacity, may become the Owner or Holder of, or acquire any interest in, any Warrants or other obligations of the Corporation, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Corporation and may act on, or as depositary, trustee or agent for, any committee -27- or body of Owners or Holders of Warrants or other obligations of the Corporation as freely as if it were not the Warrant Agent hereunder. (f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrants except as otherwise agreed with the Corporation, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. (g) The Warrant Agent shall not be under any liability with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrants or the Warrant Certificates (except the countersignature thereof). (h) The recitals contained herein and in the Warrants (except as to the Warrant Agent's countersignature thereon) shall be taken as the statements of the Corporation, and the Warrant Agent assumes no responsibility for the correctness thereof. (i) The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Corporation of any of the Warrant Certificates countersigned by the Warrant Agent and delivered by it to the Corporation pursuant to this Agreement or for the application by the Corporation of any proceeds. (j) The Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its covenants or agreements contained herein or in the Warrants or in the case of the receipt of any written demand from an Owner or Holder of a Warrant with respect to such default, including, without limitation, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 8.03, to make any demand upon the Corporation. (k) In acting under this Agreement and in connection with the Warrants, the Warrant Agent is acting solely as the agent of the Corporation and does not assume any obligation or relationship of agency or trust for or with any of the Owners or Holders of the Warrants. -28- Section 4.04. Compliance With Applicable Laws. The Warrant Agent agrees to comply with all applicable federal and state laws imposing obligations on it in respect of the services rendered by it under this Agreement and in connection with the Warrants, including (but not limited to) the provisions of United States federal income tax laws regarding information reporting and backup withholding. The Warrant Agent expressly assumes all liability for its failure to comply with any such laws imposing obligations on it, including (but not limited to) any liability for its failure to comply with any applicable provisions of United States federal income tax laws regarding information reporting and backup withholding. Section 4.05. Corporate Warrant Agent Required; Eligibility. The Corporation agrees, for the benefit of the Owners or Holders from time to time of the Warrants, that there shall at all times be a Warrant Agent hereunder until all of the Warrants have been exercised or are no longer exercisable, which shall be a banking institution organized under the laws of the United States of America or one of the states thereof and having an office or an agent's office south of Chambers Street in the Borough of Manhattan, The City of New York. Section 4.06. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Warrant Agent and no appointment of a successor Warrant Agent pursuant to this Section 4.06 shall become effective until the acceptance of appointment by the successor Warrant Agent under Section 4.07. (b) The Warrant Agent may resign at any time by giving written notice of such resignation to the Corporation specifying such resignation and the date on which it desires such resignation to become effective, provided that, without the consent of the Corporation, such date shall not be less than 90 days after the date on which such notice is given. If an instrument of acceptance by a successor Warrant Agent shall not have been delivered to the Warrant Agent within 90 days after the giving of such notice of resignation, the resigning Warrant Agent may petition any court of competent jurisdiction for the appointment of a successor Warrant Agent with respect to the Warrants. (c) The Corporation may remove the Warrant Agent at any time by giving written notice thereof to the Warrant Agent specifying such removal and the date on which the Corporation desires such removal to become effective. (d) If at any time: -29- (i) the Warrant Agent shall cease to be eligible to act as such under Section 4.05 and shall fail to resign after the Corporation shall have delivered a written request therefor, or (ii) the Warrant Agent shall become incapable of acting as such, or shall be adjudged a bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or a receiver or custodian of it or of all or any substantial part of its property shall be appointed, or an order of any court shall be entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or similar law, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs, for the purpose of rehabilitation, conservation or liquidation, or (iii) the Corporation shall elect to remove the Warrant Agent, provided that no default shall then exist with respect to the Warrants, then in any such case, the Corporation by a Board Resolution may remove the Warrant Agent with respect to all the Warrants. (e) If the Warrant Agent shall resign or be removed, or if a vacancy shall occur in the office of the Warrant Agent for any other reason, the Corporation, by a Board Resolution, shall promptly appoint a successor Warrant Agent with respect to the Warrants, it being understood that at any time there shall be only one Warrant Agent with respect to the Warrants. (f) The Corporation shall give notice to the Owners or Holders of the Warrants of each resignation and each removal of the Warrant Agent and each appointment of a successor Warrant Agent with respect to the Warrants in accordance with Section 8.05. Each such notice shall include the name of the successor Warrant Agent and the address of its Warrant Agent Office. Section 4.07. Acceptance of Appointment by Successor. (a) If a successor Warrant Agent is appointed hereunder, such successor Warrant Agent so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Warrant Agent an instrument accepting such -30- appointment, and thereupon the resignation or removal of the retiring Warrant Agent shall become effective and such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Warrant Agent; provided, however, that on the request of the Corporation or the successor Warrant Agent, such retiring Warrant Agent shall, upon payment of its charges and disbursements then unpaid, execute and deliver an instrument transferring to such successor Warrant Agent all the rights and powers of the retiring Warrant Agent and shall duly assign, transfer and deliver to such successor Warrant Agent all property and money held by such retiring Warrant Agent hereunder. (b) Upon the request of any such successor Warrant Agent, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Warrant Agent all such rights and powers referred to in Section 4.07(a). (c) No successor Warrant Agent shall accept its appointment, and no such acceptance shall be effective, unless at the time of such acceptance such successor Warrant Agent shall be qualified and eligible under this Article IV. Section 4.08. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all of the business of the Warrant Agent, shall be the successor of the Warrant Agent hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation shall be otherwise qualified and eligible under this Article IV. If any Warrant Certificates shall have been countersigned, but not delivered, by the Warrant Agent then in office, any successor by merger, conversion or consolidation to such countersigning Warrant Agent may adopt such countersignature and deliver the Warrant Certificates so countersigned with the same effect as if such successor Warrant Agent had itself countersigned such Warrant Certificates. -31- ARTICLE V CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE Section 5.01. Consolidations and Mergers of the Corporation and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. (a) The Corporation may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided that, in any such case, (i) either the Corporation shall be the continuing corporation, or the successor corporation shall be a corporation organized and existing under the laws of the United States of America or a state thereof and such successor corporation shall expressly assume, by Supplemental Agreement (as defined in Section 6.01(a)) satisfactory to the Warrant Agent and executed and delivered to the Warrant Agent by such corporation, the due and punctual payment of the Cash Settlement Value [or Cancellation Amount, as the case may be,] with respect to all unexercised Warrants, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Agreement to be performed by the Corporation, and (ii) the Corporation or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale, lease or conveyance, be in default in the performance of any such covenant or condition. In case of any such consolidation, merger, sale, lease or conveyance and upon such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Corporation, with the same effect as if it had been named herein as such, and the predecessor Corporation, except in the event of a lease, shall be relieved of any further obligation hereunder or under the Warrants. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Corporation, new Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, representing Warrants not theretofore exercised, in exchange and substitution for the Global Warrant Certificates and Definitive Warrant Certificates theretofore issued; and upon the order of such successor corporation, instead of the Corporation, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Warrant Agent shall countersign and shall deliver the new Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, that such successor corporation shall have caused to be signed and delivered to the Warrant Agent for countersignature. Such Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, shall in all respects have -32- the same legal rank and benefit under this Agreement as the Warrant Certificates theretofore issued in accordance with the terms of this Agreement as though such new Warrant Certificates had been issued at the date of issue of the Warrant Certificates for which they are exchanged. In case of any such consolidation, merger, sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the new Warrant Certificates as may be appropriate. (b) The Warrant Agent may receive a written opinion of counsel (who may be an employee of the Corporation or other counsel acceptable to the Warrant Agent) (an "Opinion of Counsel") as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption, complies with the provisions of this Article V. ARTICLE VI SUPPLEMENTAL AGREEMENTS Section 6.01. Amendment of Currency Warrant Agreement. (a) This Agreement and the Warrants may be amended by the Corporation, when authorized by a Board Resolution, and the Warrant Agent (which amendment shall take the form of a supplemental currency warrant agreement) (each, a "Supplemental Agreement")), without the consent of the Owners or Holders of the Warrants, for the purpose of: (i) curing any ambiguity or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein, or of making any other provisions with respect to matters or questions arising under this Agreement that shall not be inconsistent with the provisions of this Agreement or the Warrants; or (ii) evidencing the succession of another corporation to the Corporation and the assumption by any such successor of the covenants of the Corporation contained herein and in the Warrants in accordance with Article V; or (iii) appointing a successor Depository in accordance with Section 1.01(e); or (iv) evidencing and providing for the acceptance of appointment hereunder by a successor Warrant Agent in accordance with Section 4.07; or -33- (v) adding to the covenants of the Corporation for the benefit of the Owners or Holders of the Warrants or surrendering any right or power herein conferred upon the Corporation; or (vi) issuing Warrants in the form of Definitive Warrant Certificates in accordance with Section 1.01(c); or (vii) amending this Agreement and the Warrants in any manner that the Corporation may deem to be necessary or desirable and that will not materially and adversely affect the interests of the Owners or Holders of the Warrants. (b) The Corporation and the Warrant Agent may amend this Agreement and the Warrants (which amendment shall take the form of a Supplemental Agreement), with the consent of the Owners or Holders, as the case may be, of not fewer than 66-2/3% in number of the unexercised Warrants affected by such amendment, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Owners or Holders of the Warrants under this Agreement; provided, however, that, without the consent of each Owner or Holder affected thereby, no such amendment may be made that changes the determination of the Cash Settlement Value [or Cancellation Amount, as the case may be,] of the Warrants (or any aspects of such determination) so as to reduce the amount receivable upon exercise or deemed exercise of the Warrants, shortens the period of time during which the Warrants may be exercised, or otherwise materially and adversely affects the exercise rights of the Owners or Holders, as the case may be, or reduces the number of unexercised Warrants the consent of the Owners or Holders of which is required for amendment of this Agreement or the Warrants. The Corporation and the Warrant Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from the Owners of Warrants represented by a Global Warrant Certificate. Such certification may be provided by Depository Participants acting on behalf of such Owners of Warrants, provided that any such certification is accompanied by a certification from the Depository as to the Global Warrant Certificate holdings of such Depository Participants. Section 6.02. Form of Approval of Supplemental Agreements by Owners or Holders. It shall not be necessary for the Owners or Holders of the Warrants to approve the particular form of any proposed Supplemental Agreement, but -34- it shall be sufficient if the Owners or Holders, as the case may be, shall approve the substance of the Supplemental Agreement. Section 6.03. Effect of Supplemental Agreements. Upon the execution of any Supplemental Agreement under this Article, this Agreement shall be modified in accordance therewith, such Supplemental Agreement shall form a part of this Agreement for all purposes, and, subject to the proviso to the first sentence of Section 6.01(b), every Owner or Holder of Warrants theretofore or thereafter countersigned and delivered hereunder shall be bound thereby. Section 6.04. Reference in Warrants to Supplemental Agreements. Warrants countersigned and delivered after the execution of any Supplemental Agreement pursuant to this Article may, and shall if required by the Warrant Agent, bear a notation in form approved by the Warrant Agent as to any matter provided for in such Supplemental Agreement. If the Corporation shall so determine, new Warrants so modified as to conform, in the opinion of the Warrant Agent and the Corporation, to any such Supplemental Agreement may be prepared and executed by the Corporation and countersigned and delivered by the Warrant Agent in exchange for unexercised Warrants. ARTICLE VII COVENANTS OF THE CORPORATION Section 7.01. Listing of Warrants on National Securities Exchange. (a) The Corporation covenants, for the benefit of the Owners or Holders of the Warrants, as the case may be, that (i) it will seek to obtain the listing of the Warrants on [name of national securities exchange] and (ii) until the Expiration Date, it will not seek the delisting of the Warrants from, or permanent suspension of their trading on, [name of national securities exchange] unless prior to such delisting or suspension the Warrants shall have been listed, and shall be trading, on another national securities exchange. (b) The Corporation shall advise the Warrant Agent of the date of any expected delisting or permanent suspension of trading of the Warrants as soon as is practicable and will immediately inform the Warrant Agent after the Corporation has received notice that such delisting or suspension has occurred, but in no event shall notice of such delisting or suspension be given to the Warrant Agent later than [3:00 P.M.], New York City time, on -35- the fifth New York Business Day preceding the date that such delisting or suspension occurs. (c) The Corporation shall notify the Owners or Holders of the Warrants in accordance with Section 8.05 as promptly as is practicable of any expected delisting or suspension of trading of the Warrants. Section 7.02. Governmental Approvals. The Corporation shall from time to time take all reasonable action necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and the [name of national securities exchange], and shall make all filings under United States federal and state laws, that may be or become requisite in connection with the issuance, sale, trading, transfer, delivery or exercise of the Warrants, each Global Warrant Certificate and each Definitive Warrant Certificate. Section 7.03. Payment of Cash Settlement Value [or Cancellation Amount]. The Corporation agrees, for the benefit of the Owners or Holders of the Warrants, that it will duly and punctually pay the Cash Settlement Value [or Cancellation Amount, as the case may be,] on each Warrant in accordance with the terms of the Warrants and this Agreement, and that the right of each such Owner or Holder, as the case may be, to receive payment of the Cash Settlement Amount [or Cancellation Amount, as the case may be,] on such Warrant when such amount is due and payable shall be absolute and unconditional. Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys. (a) The Corporation shall maintain an office and agency at which the Warrants may be presented or surrendered for exercise or registration of transfer or exchange or cancellation and where notices and demands to or upon the Corporation in respect of the Warrants and this Agreement may be served, which office and agency shall be the same as the location of the Warrant Agent Office, and the Corporation hereby appoints the Warrant Agent as its agent to receive all such presentations, surrenders, notices and demands. (b) The Corporation shall, on or prior to each due date of the Cash Settlement Value [or Cancellation Amount, as the case may be,] on any Warrant, deposit with the Warrant Agent a sum sufficient to pay the Cash Settlement Value [or Cancellation Amount, as the case may be,] so becoming due, such sum to be held for the benefit of the Persons entitled to such Cash Settlement Value [or Cancellation Amount, as the case may be]. -36- (c) Any money deposited with the Warrant Agent for the payment of the Cash Settlement Value [or Cancellation Amount, as the case may be,] on any Warrant and remaining unclaimed for three years after such Cash Settlement Value [or Cancellation Amount, as the case may be,] has become due and payable, shall be paid to the Corporation, at the request of the Corporation, and the Person entitled to such money shall thereafter, as an unsecured general creditor, look only to the Corporation for payment thereof, and all liability of the Warrant Agent with respect to such money shall thereupon cease; provided, however, that the Warrant Agent, before being required to make any such repayment, may at the expense of the Corporation, cause notice to be given in accordance with Section 8.05 to the Person entitled to such money that such money remains unclaimed and that, after a date specified therein, which shall be not less than 30 days from the date of such notice, any unclaimed balance of such money then remaining will be repaid to the Corporation. Section 7.05. Corporate Existence. Subject to Article V, the Corporation shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Corporation shall not be required to preserve any right or franchise if its Board of Directors or a committee thereof shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Corporation and that the loss thereof is not disadvantageous in any material respect to the Owners or Holders of the Warrants, as the case may be. ARTICLE VIII MISCELLANEOUS Section 8.01. Reopening of Issue of Warrants. The Corporation may, from time to time, issue additional Warrants under this Agreement. All Warrants issued hereunder, from and after the date they are issued, shall be identical. Section 8.02. Payment of Taxes. The Corporation shall pay all documentary stamp taxes attributable to the initial issuance of Warrants; provided, however, that the Corporation shall not be required to pay any tax or other governmental charge that may be payable in respect of any transfer involving any beneficial or record interest in or ownership interest of any Warrants. -37- Section 8.03. Notices and Demands to the Corporation and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Corporation by any Owner or Holder pursuant to the provisions of the Warrants, the Warrant Agent shall promptly forward such notice or demand to the Corporation. Section 8.04. Addresses for Notices. Any communications from the Corporation to the Warrant Agent with respect to this Agreement shall be addressed to [name of Warrant Agent], [address] (facsimile: (___) ___-____) (telephone: (___) ___-____), Attention: [Corporate Trust Department]; any communications from the Warrant Agent to the Corporation with respect to this Agreement shall be addressed to Bankers Trust New York Corporation, 280 Park Avenue, New York, New York 10017 (facsimile: (212) ___-____) (telephone: (212) ___-_____), Attention: [_______________]; and any communications from the Warrant Agent to the Spot Rate Reference Bank with respect to this Agreement shall be addressed to [name of Spot Rate Reference Bank], [address] (facsimile: (___) ___-____) (telephone: (___) ___-____), Attention: [Corporate Foreign Exchange] (or, in any such case, at such other address as shall be specified in writing to each of the others by the Warrant Agent, the Corporation or the Spot Rate Reference Bank, as the case may be). Section 8.05. Notices to Owners and Holders. The Corporation or the Warrant Agent shall give any notice to be given to the Owners of Book-Entry Warrants by providing the Depository with a form of notice to be distributed by the Depository to Depository Participants in accordance with the customs and practices of the Depository. The Corporation or the Warrant Agent shall give notice to the Holders of Certificated Warrants by mailing written notice by first class mail, postage prepaid, to such Holders as their names and addresses appear in the Warrant Register. SECTION 8.06. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT ISSUED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 8.07. Benefits of Currency Warrant Agreement. Nothing in this Agreement or in the Warrants expressed or implied and nothing that may be inferred from any of the provisions hereof or thereof is intended, or shall be construed, to confer upon, or give to, any Person other than the Corporation, the Warrant Agent and their respective successors and assigns, and the Owners or Holders of the Warrants, as the case may be, any right, remedy or -38- claim under or by reason of this Agreement or the Warrants or of any covenant, condition, stipulation, promise or agreement hereof or thereof, and all covenants, conditions, stipulations, promises and agreements contained in this Agreement or in the Warrants shall be for the sole and exclusive benefit of the Corporation and the Warrant Agent and their respective successors and assigns and of the Owners or Holders of the Warrants, as the case may be. Section 8.08. Successors and Assigns. All covenants and agreements in this Agreement by the Corporation shall bind its successors and assigns, whether so expressed or not. Section 8.09. Currency Warrant Agreement and Warrants Solely Corporate Obligations. No recourse for the payment of the Cash Settlement Value [or Cancellation Amount, as the case may be,] of any Warrant or for any claim based on any Warrant or this Agreement shall be had against any director or officer or stockholder, past, present or future, of the Corporation. Any such claim against any such Person is expressly waived as a condition of, and as consideration for, the execution and delivery of this Agreement and the issue of the Warrants. Section 8.10. Severability. If any provision in this Agreement or in the Warrants shall be invalid, illegal, or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions, or of such provisions in any other jurisdiction, shall not in any way be affected or impaired thereby. Section 8.11. Headings. The descriptive headings of the several Articles and Sections and the Table of Contents of this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. Section 8.12. Counterparts. This Agreement may be executed by the parties hereto in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Section 8.13. Inspection of Currency Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the Warrant Agent Office for inspection by the Owners or Holders of the Warrants, as the case may be, the Depository Participants and the Indirect Participants. In the case of Certificated Warrants, the Warrant Agent may require the Holder of such Warrant to -39- submit such Holder's Warrant Certificate for inspection by the Warrant Agent. -40- IN WITNESS WHEREOF, this Currency Warrant Agreement has been duly executed by the parties hereto as of the day and year first above written. BANKERS TRUST NEW YORK CORPORATION By:___________________________ Name: Title: [SEAL] Attest: ___________________________ [Assistant] Secretary [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: [SEAL] Attest: _____________________________ [Assistant Secretary] -41- EXHIBIT A [WARRANTS EVIDENCED BY THIS WARRANT CERTIFICATE CANNOT BE EXERCISED PRIOR TO ________ __, 199__.] [NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS WARRANT UNLESS THE WARRANT AGENT HAS RECEIVED THE CERTIFICATION DESCRIBED IN THE CURRENCY WARRANT AGREEMENT] EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN VOID AFTER [3:00 P.M.], NEW YORK CITY TIME, ON ________ __, 199__ No. _________ CUSIP No. ____________ GLOBAL WARRANT CERTIFICATE representing ________ [Name of Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__ BANKERS TRUST NEW YORK CORPORATION This certifies that [______________] or registered assigns is the registered holder of [insert number initially issued] [insert name of Currency] Currency [Put/Call] Warrants (the "Warrants"), or such lesser amount as is indicated in the records of [name of Warrant Agent], as Warrant Agent. Each Warrant entitles the [beneficial owner thereof (an "Owner")] [registered holder thereof (a "Holder")], subject to the provisions contained herein and in the Currency Warrant Agreement referred to below, to receive from Bankers Trust New York Corporation (the "Corporation") the cash settlement value (the "Cash Settlement Value") in [U.S. dollars (specify other currency if applicable)] of the right to [purchase] [sell] [(specify base amount)] of [(specify Base Currency)] (the "Base Currency") at a price of [(specify Strike Price, including currency)], as further described below. [No exercise price shall be payable by any Holder or Owner in connection with the exercise of any Warrant.] [The exercise price for each Warrant shall be $_____ and shall be payable in [U.S. dollars (specify other currency if applicable)] (the "Exercise Price").] In no event shall any [Owner] [Holder] be entitled to any interest on the Cash Settlement Value [or Cancellation Amount] (unless the Corporation shall default in the payment of such Cash Settlement Value). A-1 Subject to the terms of the Currency Warrant Agreement, each Warrant may be exercised or deemed to be exercised in whole but not in part on any New York Business Day (as defined below) from [the date of issuance (specify other date if applicable)] until [3:00 P.M.], New York City time, on the earlie[st] of (i) [_________ (specify date upon which right to exercise Warrants expires)] or, if such date is not a New York Business Day, on the next succeeding New York Business Day (the "Expiration Date"), [or] (ii) the date of automatic exercise [or (iii) the date of cancellation], as further described below and as provided in the Currency Warrant Agreement. Except in the case of automatic exercise or any exercise on the Expiration Date, not fewer than [(specify minimum exercise amount)] [nor more than [(specify maximum exercise amount)] Warrants may be exercised by or on behalf of any one [Owner] [Holder] at any one time. References herein to "U.S. dollars", "U.S.$" or "$" are references to the currency of the United States of America. References to "[(insert name of Base Currency)]" or "[__________]" are references to the currency of [(insert name of Currency country)]. As used herein, the term "New York Business Day" means any day other than a Saturday or Sunday or a day on which the New York Stock Exchange or the American Stock Exchange [or (list any other relevant securities exchanges)] is not open for securities trading or banking institutions generally in The City of New York are authorized or required by law or executive order to close; "Currency Country Business Day" means any day other than (i) a Saturday or a Sunday or a day on which banking institutions generally in [(specify name of Currency country)] are authorized or required by law or executive order to close or (ii) a day on which the [names of relevant stock exchanges] are not open for business[; and "Currency Country Resident" means a resident of, or any corporation or other Person organized under the laws of [(specify name of Currency country)], its territories, its possessions or other areas subject to its jurisdiction]. This [Global] [Definitive] Warrant Certificate is issued under and in accordance with the Currency Warrant Agreement, dated as of ________ __, 199__ (the "Currency Warrant Agreement"), between the Corporation and the Warrant Agent, and is subject to the terms and provisions contained in the Currency Warrant Agreement, to all of which terms and provisions all [Owners] [Holders] of the Warrants represented by this [Global] [Definitive] Warrant Certificate [and the Holder of this Global Warrant Certificate] consent by acceptance hereof [by the Depository (as defined below)]. Copies of the Currency Warrant Agreement are on file at the Warrant Agent Office at ______________, New York, New York, _____, Attention: A-2 Corporate Trust Department, or at such other office as may be specified in a notice given to the [Owners] [Holders] of the Warrants. [Except as provided in the Currency Warrant Agreement, Owners will not be entitled to receive definitive certificates evidencing their Warrants. Warrant holdings will be held through a depository selected by the Corporation, which initially is [The Depository Trust Company], or its agent (the "Depository", which term, as used herein, includes any successor depository selected by the Corporation) as further provided in the Currency Warrant Agreement.] Capitalized terms included herein but not defined herein have the meanings assigned to them in the Currency Warrant Agreement. The Cash Settlement Value of any Exercised Warrants (whether exercised automatically or by Exercise Notice) will be the amount, stated in U.S. dollars, computed by subtracting [from 50] [50 from] an amount equal to 50 times a fraction, the numerator of which is the Spot Rate (as defined below) on the Exercise Date and the denominator of which is the Strike Price (as defined below), provided that if such amount is less than zero, the Cash Settlement Value shall be zero. [The Cancellation Amount of any Exercised Warrants shall mean [Insert method for determining amount].] The "Strike Price" of a Warrant shall mean [Insert amount or method for determining amount]. The "Spot Rate" on any date will be the offered spot rate of __________ [U.S. dollars (or specify other Reference Currency)] for ____________ [(specify Base Currency)] for __________ as quoted by __________ at 10:00 A.M., New York City time, on such date or, if such bank is not quoting such rate at such time, the rate quoted by such other leading bank in the foreign exchange markets as may be selected by the Corporation in good faith and notified to the Warrant Agent. The Spot Rate will be calculated to __________ decimal places. Except in the case of automatic exercise [or cancellation] as further provided below and in the Currency Warrant Agreement, and subject to any Maximum Exercisable Number of Warrants, the "Valuation Date" for any Warrant shall be the first Currency Country Business Day next succeeding the "Exercise Date", which shall be the New York Business Day on which the Warrant Agent has received (i) delivery of [such Warrant on the records of the Depository free to the Warrant Account] [the Definitive Warrant Certificate representing such Warrant at the Warrant Agent Office][, (ii) the Exercise Price] and ([iii]) an Exercise Notice for such Warrant in good order in the form A-3 of [Exhibit B-1] [Exhibit B-2] to the Currency Warrant Agreement, [which shall include certification that the [exercising Owner] [Holder] is not a Currency Country Resident,] at or prior to [3:00 P.M.], New York City time; provided that if the Warrant Agent receives such Warrant[, the Exercise Price] or the Exercise Notice after [3:00 P.M.] on such day, the "Exercise Date" shall be the next succeeding New York Business Day and such Warrant[, Exercise Price] and Exercise Notice shall be deemed to have been received on such next succeeding New York Business Day. Any delivery of a Warrant or Exercise Notice received after [3:00 P.M.], New York City time, on the Expiration Date shall be void and of no effect and shall be deemed not to have been delivered. [A [Depository Participant] [Holder] may specify in its irrevocable Exercise Notice in relation to a Warrant that such Exercise Notice is conditional (a "Conditional Exercise Notice"), and in such case such Conditional Exercise Notice shall be void and of no effect and shall be disregarded for all purposes of the Currency Warrant Agreement if [Describe the terms upon which the Exercise Notice may be conditional, which may be as follows: the Spot Rate on the day that, but for the provisions of this sentence, would be the Valuation Date for such Warrant is more than [_________________] [above] [below] the Spot Rate on the [Designated] Exercise Date of such Warrants (or, if such date is not a Currency Country Business Day, on the immediately preceding Currency Country Business Day) (the "Reference Value").] By [5:00 P.M.], New York City time, on the New York Business Day on which such Exercise Notice is received (or deemed to have been received), the Warrant Agent shall notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the number of Warrants in respect of which Exercise Notices, not rejected pursuant to the Currency Warrant Agreement, were received (or deemed to have been received) at or prior to [3:00 P.M.], New York City time, on such date, the number of such Exercise Notices that were rejected by the Warrant Agent pursuant to the Currency Warrant Agreement and the number of Warrants to which such rejected Exercise Notices relate [and the number of such Exercise Notices that were Conditional Exercise Notices (and the number of Warrants to which such Conditional Exercise Notices relate)]. By [5:00 P.M.], New York City time, on the Valuation Date for such Warrants (or if such Valuation Date is not a New York Business Day, then the next succeeding New York Business Day), the Warrant Agent shall (i) [(x) after obtaining the Reference Value and the Spot Rate for such Valuation Date, determine whether any Conditional Exercise Notices have become void pursuant to A-4 Section 2.02(b) of the Currency Warrant Agreement, and if so, promptly notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) and send a Rejection Notice in the form of Exhibit C to the Currency Warrant Agreement to the appropriate [Depository Participant] [Holder] and redeliver such Warrants to such [Depository Participant] [Holder] as provided in the Currency Warrant Agreement and (y)] determine the aggregate number of [Tendered] [Exercised] Warrants, (ii) [determine pursuant to Section 2.02(f) of the Currency Warrant Agreement the number of such Tendered Warrants which shall be Exercised Warrants, (iii)] determine the Cash Settlement Value (in the manner provided in Section 2.02(h) of the Currency Warrant Agreement) of the Exercised Warrants, (iv) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the Cash Settlement Value with respect to such Warrants, (v) send notice of confirmation of exercise in substantially the form of Exhibit D to the Currency Warrant Agreement to the appropriate [Depository Participant] [Holder] and (vi) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of such other matters relating to the Exercised Warrants as the Corporation shall reasonably request. If the Corporation has made adequate funds available to the Warrant Agent in a timely manner as provided in the Currency Warrant Agreement, the Warrant Agent will make payment in the form of a wire transfer to the appropriate Depository Participant on the [second] New York Business Day following the Valuation Date (or, if such Valuation Date is not a New York Business Day, on the [third] New York Business Day after such Valuation Date) (the "Settlement Date"), all as provided in the Currency Warrant Agreement, such payment to be in the amount of the Cash Settlement Value in respect of Exercised Warrants exercised by such Depository Participant. [The Warrant Agent shall have no responsibility for the crediting by such Depository Participant of the Cash Settlement Value of such Warrants to the appropriate Owners.] [The Warrant Agent will cause its records to be marked to reflect the reduction in the number of Warrants represented by this Global Warrant Certificate by the number of Warrants for which payment has been made in accordance with the Currency Warrant Agreement.] [If this Definitive Warrant Certificate shall be surrendered to the Warrant Agent for exercise of fewer than all the Warrants represented hereby, the Warrant Agent shall issue and deliver to the Holder of the Warrants represented hereby by A-5 first class mail at the expense of the Corporation a Definitive Warrant Certificate representing all Warrants remaining unexercised after such exercise.] All Warrants with respect to which (i) there has been no proper delivery of Warrants to the Warrant Account and no valid Exercise Notice has been received by the Warrant Agent at or prior to [3:00 P.M.], New York City time, on the earlier to occur of (A) the Expiration Date for such Warrants and (B) the last New York Business Day prior to the effective date on which the Warrants are delisting from, or permanently suspended from trading on, the [name of national securities exchange] without being accepted for listing on or prior to such New York Business Day on another United States national securities exchange (such New York Business Day, the "Delisting Date"), (ii) the Exercise Date has been postponed pursuant to Section 2.02(f) of the Currency Warrant Agreement to a date on or after the earlier of the Expiration Date and the Delisting Date, [or (iii) list other events causing automatic exercise of Warrants, if applicable] will be automatically exercised on such Expiration Date or Delisting Date [or on the date on which (list other dates of automatic exercise)] (any such date, a "Deemed Exercise Date") without any requirement of notice of exercise to the Warrant Agent. The Valuation Date for such Warrants shall be the first Currency Country Business Day following such Deemed Exercise Date. [(Insert provisions relating to discontinuation or modification of currency unit)] The Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and treat the registered Holder hereof as the absolute Holder of all right, title and interest in the Warrants evidenced hereby (notwithstanding any notation of ownership or other writing hereon) for any purpose and as the Person entitled to exercise the rights represented by the Warrants evidenced hereby, and neither the Corporation nor the Warrant Agent nor any agent of the Corporation or the Warrant Agent shall be affected by any notice to the contrary, except that the Corporation and the Warrant Agent shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated herein and in the Currency Warrant Agreement. Subject to the terms of the Currency Warrant Agreement, upon due presentment for registration of transfer or exchange of this [Global] [Definitive] Warrant Certificate at the Warrant Agent Office, the Corporation shall execute and the Warrant Agent shall countersign and A-6 deliver in the name of the designated transferee a new [Global] [Definitive] Warrant Certificate or [Global] [Definitive] Warrant Certificates of like tenor and representing in the aggregate a like number of unexercised Warrants as evidenced by this [Global] [Definitive] Warrant Certificate at the time of such registration of transfer, which shall be issued to the designated transferee in exchange for this [Global] [Definitive] Warrant Certificate, subject to the limitations provided in the Currency Warrant Agreement, without charge. This [Global] [Definitive] Warrant Certificate and the Currency Warrant Agreement are subject to amendment as provided in the Currency Warrant Agreement. THIS [GLOBAL] [DEFINITIVE] WARRANT CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This [Global] [Definitive] Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent. A-7 IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal. Dated as of ________ __, 199__ BANKERS TRUST NEW YORK CORPORATION By:___________________________ Name: Title: [SEAL] Attest:_______________________ Name: Title: Countersigned on the date above written: [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: A-8 EXHIBIT B-1 Form of Exercise Notice for Warrants Represented by a Global Warrant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation [name of Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") 1. We refer to the Currency Warrant Agreement, dated as of ________ __, 199__ (the "Currency Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). On behalf of certain beneficial owners, each of whom is exercising no fewer than [__________] Warrants covered by this Notice and whose Warrants are held through the Depository in our name, we hereby irrevocably exercise [_____________] Warrants (the "Tendered Warrants"). 2. This Exercise Notice [is] [is not] a Conditional Exercise Notice. [We hereby acknowledge that a Conditional Exercise Notice will be void and of no effect (and shall be disregarded for all purposes under the Currency Warrant Agreement) if the Spot Rate on the date that, but for the provisions of Section 2.02(b) of the Currency Warrant Agreement, would be the Valuation Date for the Warrants is more than [__________] [above] [below] the Spot Rate on the [Designated] Exercise Date (or, if the [Designated] Exercise Date is not a Currency Country Business Day, on the immediately preceding Currency Country Business Day).] 3. We have instructed the Depository to deliver the Exercised Warrants free through the Depository to the Warrant Account [Account No. _______________])[, and we have made payment of the Exercise Price as provided in Section 2.01(b) of the Currency Warrant Agreement]. 4. We hereby acknowledge that this Exercise Notice[, the Exercise Price] and the Tendered Warrants must be received by you by [3:00 P.M.], New York City time, on a New York Business Day in order for the Valuation Date of the Tendered Warrants to be the Currency Country Business Day next succeeding such New York Business Day, and that if this Exercise Notice[, the Exercise Price] or the Tendered Warrants are received by you after [3:00 P.M.], New York City time, but prior to the close of business on a New York Business Day, the Valuation Date of the Tendered Warrants shall be the Currency Country Business Day next succeeding the first New York Business Day following the day on which this Exercise Notice[, the Exercise Price] and the Tendered Warrants are received. [We further acknowledge that if this Conditional Exercise Notice[, the Exercise Price] or the Tendered Warrants are received by you after [3:00] P.M., New York City time, but prior to the close of business on a New York Business Day, that for purposes of making the determinations required by such Conditional Exercise Notice, the Warrants will be deemed to be exercised on the New York Business Day next succeeding the day on which this Exercise Notice[, the Exercise Price] and the Tendered Warrants are received.] 5. We hereby certify that we are a participant of [The Depository Trust Company] (the "Depository") with the present right to use and receive its services. 6. We hereby acknowledge that if you determine that this Exercise Notice has not been duly completed, or is not in proper form, or you are unable to verify that we are a participant of the Depository as provided above, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered. 7. We hereby direct you to make payment to us of amounts payable to the beneficial owners of the Tendered Warrants as a result of the exercise of the Tendered Warrants hereunder as follows: [_] By cashier's check or an official bank check; or [_] By wire transfer to the following U.S. dollar bank account in the United States: (Minimum payments of $100,000 only) Bank:_________________________________ Account No.:__________________________ ABA Routing No.:______________________ B-1-2 Reference:____________________________ [8. We hereby certify that none of the clients on whose behalf we are exercising the above referenced Warrants are Currency Country Residents.] Capitalized terms used herein and not defined have the meanings assigned to them in the Currency Warrant Agreement. Dated: ________ __, 199__ [NAME OF DEPOSITORY PARTICIPANT] [Participant Number] By:______________________ Name: Title: [Address] Telephone: Facsimile: B-1-3 EXHIBIT B-2 Form of Exercise Notice for Warrants Represented by a Definitive Warrant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation [name of Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") 1. We refer to the Currency Warrant Agreement, dated as of ________ __, 199__ (the "Currency Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby irrevocably exercise [_____________] Warrants (the "Tendered Warrants") and deliver to you herewith a Definitive Warrant Certificate or Certificates, registered in the name of the undersigned, representing a number of Warrants at least equal to the number of Exercised Warrants [and payment of the Exercise Price as provided in Section 2.01(b) of the Currency Warrant Agreement]. 2. This Exercise Notice [is] [is not] a Conditional Exercise Notice. [We hereby acknowledge that a Conditional Exercise Notice will be void and of no effect (and shall be disregarded for all purposes under the Currency Warrant Agreement) if the Spot Rate on the date that, but for the provisions of Section 2.02(b) of the Currency Warrant Agreement, would be the Valuation Date for the Warrants is more than [__________] [above] [below] the Spot Rate on the Exercise Date (or, if the Exercise Date is not a Currency Country Business Day, on the immediately preceding Currency Country Business Day).] 3. We hereby acknowledge that this Exercise Notice[, the Exercise Price] and the Definitive Warrant Certificates representing the Tendered Warrants must be received by you by [3:00] P.M., New York City time, on a New York Business Day in order for the Valuation Date of the Tendered Warrants to be the Currency Country Business Day next succeeding such New York Business Day, and that if this Exercise Notice[, the Exercise Price] or such Definitive Warrant Certificates are received by you after [3:00] P.M., New York City time, but prior to the close of business on a New York Business Day, the Valuation Date of the Tendered Warrants shall be the Currency Country Business Day next succeeding the first New York Business Day following the day on which this Exercise Notice[, the Exercise Price] and such Definitive Warrant Certificates are received. [We further acknowledge that if this Conditional Exercise Notice[, the Exercise Price] or such Definitive Warrant Certificates are received by you after [3:00] P.M., New York City time, but prior to the close of business on a New York Business Day, that for purposes of making the determinations required by such Conditional Exercise Notice, the Warrants will be deemed to be exercised on the New York Business Day next succeeding the day on which this Exercise Notice[, the Exercise Price] and such Definitive Warrant Certificates are received.] 4. We hereby acknowledge that if you determine that this Exercise Notice has not been duly completed or is not in proper form, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered. 5. We hereby direct you to make payment of amounts payable to us as a result of the exercise of the Warrants hereunder as follows: [_] By cashier's check or an official bank check; or [_] By wire transfer to the following U.S. dollar bank account in the United States: (Minimum payments of $100,000 only) Bank:_________________________________ Account No.:__________________________ ABA Routing No.:______________________ Reference:____________________________ [6. We hereby certify that at the time this notice is delivered to you, the beneficial owners of the Tendered Warrants are not Currency Country Residents.] B-2-2 Capitalized terms used herein and not defined have the meanings assigned to them in the Currency Warrant Agreement. Dated: ________ __, 199__ [NAME OF HOLDER] By:______________________ Name: Title: [Address] Telephone: Facsimile: B-2-3 EXHIBIT C Form of Rejection Notice [NAME OF DEPOSITORY PARTICIPANT OR HOLDER], [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation [name of Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Currency Warrant Agreement, dated as of ________ __, 199__ (the "Currency Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent"). In the case of Tendered Warrants represented by a Global Warrant Certificate and rejected pursuant to Section 2.02(c)(v) of the Currency Warrant Agreement: You are hereby notified that [the Exercise Notice delivered by you was determined by us not to have been [duly completed] [in proper form]] [we were not able to verify that you are a Depository Participant of [The Depository Trust Company] in the manner, and pursuant to the procedures], as set forth in the Currency Warrant Agreement. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form. In the case of Tendered Warrants represented by a Definitive Warrant Certificate and rejected pursuant to Section 2.02(c)(ii) of the Currency Warrant Agreement: You are hereby notified that [the Exercise Notice delivered by you was determined by us not to have been [duly completed] [in proper form]] [the Definitive Warrant Certificate delivered by you was determined by us not to have been in proper form], as set forth in the Currency Warrant Agreement. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form. [In the case of Tendered Warrants that become void pursuant to Section 2.02(b) of the Currency Warrant Agreement: You are hereby notified that we have rejected your Conditional Exercise Notice because the Spot Rate on the Valuation Date was [____________], and the Spot Rate on the [Designated] Exercise Date (or, if the [Designated] Exercise Date was not a Currency Country Business Day, on the immediately preceding Currency Country Business Day) was [_______________].] Capitalized terms used herein and not defined have the meanings assigned to them in the Currency Warrant Agreement. Dated: ________ __, 199__ [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: C-2 EXHIBIT D Form of Confirmation of Exercise [NAME OF DEPOSITORY PARTICIPANT OR HOLDER], [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation [name of Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Currency Warrant Agreement, dated as of ________ __, 199__ (the "Currency Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent"). We hereby confirm receipt of your Exercise Notice with respect to ____________ Warrants (the "Exercised Warrants"), and the [Definitive Warrant Certificates representing the] Warrants relating thereto, which Exercise Notice [and Definitive Warrant Certificates] we have found to be duly completed and in good order[, and we have verified, in the manner provided in the Currency Warrant Agreement, that you are a Depository Participant]. [The Corporation has elected to limit the number of Warrants that may have an Exercise Date of ___________ __, 199__ to [____________]. Of the Tendered Warrants, [_______________] Warrants have been selected to be Warrants that will have an Exercise Date on such date (such Warrants, the "Exercised Warrants"). The remaining [_____________] Tendered Warrants are deemed to be Delayed Exercise Warrants.] [The Corporation has not elected to limit the number of Warrants that may be exercised pursuant to Section 2.02(f) of the Currency Warrant Agreement. Accordingly, all of the Tendered Warrants will have an Exercise Date of __________ __, 199__ and are hereinafter referred to as "Exercised Warrants".] We hereby confirm that the aggregate Cash Settlement Value of [payment currency] [_________________] of such Exercised Warrants ([payment currency] [_____________] per Warrant) [minus the aggregate Exercise Price thereof] will be made available to you in the form of a [wire transfer] [check], [two] New York Business Days after the Valuation Date for the Exercised Warrants (or, if the Valuation Date for the Exercised Warrants was not a New York Business Day, [three] New York Business Days after the Valuation Date) in accordance with the terms of the Currency Warrant Agreement. Capitalized terms used herein and not defined have the meanings assigned to them in the Currency Warrant Agreement. Dated: ________ __, 199__ [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: D-2 EXHIBIT E-1 Form of Depository Participant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Automatic Exercise of Bankers Trust New York Corporation [name of Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Currency Warrant Agreement, dated as of ________ __, 199__ (the "Currency Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby certify that: (a) we are acting on behalf of the Owners of ____________ Warrants, which have been automatically exercised pursuant to the Currency Warrant Agreement and which we have delivered free on the records of the Depository to the Warrant Account[; and (b) we have received certification from such Owners that the beneficial owners of such Warrants are not Currency Country Residents]. Capitalized terms used herein and not defined have the meanings assigned to them in the Currency Warrant Agreement. Dated: ________ __, 199__ [NAME OF DEPOSITORY PARTICIPANT] [Participant Number] By:______________________ Name: Title: [Address] Telephone: Facsimile: D-1-2 EXHIBIT E-2 Form of Holder Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Automatic Exercise of Bankers Trust New York Corporation [name of Currency] Currency [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Currency Warrant Agreement, dated as of ________ __, 199__ (the "Currency Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby certify that: (a) we are the Holders of ____________ Warrants, which have been automatically exercised pursuant to the Currency Warrant Agreement; [and] (b) we have surrendered the Definitive Warrant Certificates representing such Warrants at the Warrant Agent Office[; and (c) as of the date hereof, the beneficial owners of such Warrants are not Currency Country Residents]. Capitalized terms used herein and not defined have the meanings assigned to them in the Currency Warrant Agreement. Dated: ________ __, 199__ [NAME OF HOLDER] By:______________________ Name: Title: [Address] Telephone: Facsimile: E-2-2 EX-4.8 5 INDEX WARRANT AGREEMENT EXHIBIT 4.8 ================================================================================ INDEX WARRANT AGREEMENT dated as of ________ __, 199__ between BANKERS TRUST NEW YORK CORPORATION and [NAME OF WARRANT AGENT], as Warrant Agent ---------------- [Name of Index] Index [Put/Call] Warrants Expiring ________ __, 199__ ================================================================================ TABLE OF CONTENTS Page PARTIES....................................................... 1 RECITALS...................................................... 1 ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES Section 1.01. The Warrants; Issuance of Warrants; Book-Entry Procedures; Successor Depository..................................... 1 Section 1.02. Form; Denominations; Execution, Countersignature, Delivery and Dating of Global Warrant Certificates................................... 4 Section 1.03. Definitive Warrant Certificates................ 5 Section 1.04. Maintenance of Warrant Register; Registration of Transfers and Exchanges of Global Warrant Certificates................................... 7 Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant Certificates.................... 9 Section 1.06. Cancellation of Warrants....................... 10 ARTICLE II [EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS Section 2.01. Duration of Warrants; Method of Exercise; Minimum [and Maximum] Exercise Amounts; Notice of Exercise....................................... 11 Section 2.02. Exercise of Warrants........................... 14 Section 2.03. Automatic Exercise of Warrants................. 21 [Section 2.04. Cancellation of Warrants...................... 24 Section 2.05. Discontinuance or Modification of Index.......................................... 24 Section 2.06. Designation of Agent for Receipt of Notice......................................... 25 [Section 2.07. Extraordinary Events.......................... 25 Section 2.08. Temporary Suspension of the Right to Exercise the Warrants....................... 25 -i- ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS Section 3.01. Treatment of Holders........................... 25 Section 3.02. Holder or Owner of Warrant May Enforce Rights................................. 26 ARTICLE IV CONCERNING THE WARRANT AGENT Section 4.01. Warrant Agent.................................. 26 Section 4.02. Certain Duties of the Warrant Agent.......................................... 26 Section 4.03. Conditions of Warrant Agent's Obligations.................................... 27 Section 4.04. Compliance With Applicable Laws................ 29 Section 4.05. Corporate Warrant Agent Required; Eligibility.................................... 30 Section 4.06. Resignation and Removal; Appointment of Successor....................... 30 Section 4.07. Acceptance of Appointment by Successor...................................... 31 Section 4.08. Merger, Conversion, Consolidation or Succession to Business...................... 32 ARTICLE V CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE Section 5.01. Consolidations and Mergers of the Corporation and Sales, Leases and Conveyances Permitted Subject to Certain Conditions............................. 32 ARTICLE VI SUPPLEMENTAL AGREEMENTS Section 6.01. Amendment of Index Warrant Agreement...................................... 34 Section 6.02. Form of Approval of Supplemental Agreements by Owners or Holders................ 35 Section 6.03. Effect of Supplemental Agreements............... 35 -ii- Section 6.04. Reference in Warrants to Supplemental Agreements........................ 36 ARTICLE VII COVENANTS OF THE CORPORATION Section 7.01. Listing of Warrants on National Securities Exchange............................ 36 Section 7.02. Governmental Approvals......................... 36 Section 7.03. Payment of Cash Settlement Value [or Cancellation Amount]....................... 37 Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys............................... 37 Section 7.05. Corporate Existence............................ 38 ARTICLE VIII MISCELLANEOUS Section 8.01. Reopening of Issue of Warrants................. 38 Section 8.02. Payment of Taxes............................... 38 Section 8.03. Notices and Demands to the Corporation and Warrant Agent.................. 38 Section 8.04. Addresses for Notices.......................... 39 Section 8.05. Notices to Owners and Holders.................. 39 SECTION 8.06. GOVERNING LAW.................................. 39 Section 8.07. Benefits of Index Warrant Agreement...................................... 39 Section 8.08. Successors and Assigns......................... 39 Section 8.09. Index Warrant Agreement and Warrants Solely Corporate Obligations.................................... 40 Section 8.10. Severability................................... 40 Section 8.11. Headings....................................... 40 Section 8.12. Counterparts................................... 40 Section 8.13. Inspection of Index Warrant Agreement...................................... 40 EXHIBITS Exhibit A Form of Warrant Certificate Exhibit B-1 Form of Exercise Notice from Depository Participant Exhibit B-2 Form of Exercise Notice from Holder of Definitive Warrant Certificate Exhibit C Form of Rejection Notice Exhibit D Form of Confirmation of Exercise -iii- Exhibit E-1 Form of Depository Participant Certificate Exhibit E-2 Form of Holder Certificate -iv- INDEX WARRANT AGREEMENT INDEX WARRANT AGREEMENT, dated as of ________ __, 199__ (as modified, amended or supplemented, this "Agreement"), between BANKERS TRUST NEW YORK CORPORATION, a corporation organized and existing under the laws of the State of New York (the "Corporation"), and [NAME OF WARRANT AGENT], a [banking association] [corporation] organized and existing under the laws of ______________, as Warrant Agent (the "Warrant Agent"). W I T N E S S E T H: WHEREAS, the Corporation proposes to sell [put] [call] warrants (each, a "Warrant") representing the right to receive from the Corporation an amount in [U.S. dollars (specify other currency if applicable)] to be determined by reference to [decreases] [increases] in the [(insert name of security index or describe portfolio of specified stocks or other securities)] (the "Index"); and WHEREAS, the Corporation desires the Warrant Agent to act on behalf of the Corporation, and the Warrant Agent is willing so to act, in connection with the issuance, transfer, exchange, exercise and cancellation of the Warrants, and the Corporation desires to set forth herein, among other things, the provisions of the Warrants and the terms and conditions under which they may be issued, transferred, exchanged, exercised and canceled; NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES Section 1.01. The Warrants; Issuance of Warrants; Book-Entry Procedures; Successor Depository. (a) Each Warrant shall represent the right, subject to the provisions contained herein and therein, to receive the Cash Settlement Value (as defined in Section 2.02(g)) [or the Cancellation Amount (as defined in Section 2.04(b)), as the case may be,] of such Warrant. Such Cash Settlement Value [or Cancellation Amount, as the case may be,] shall be payable in [U.S. dollars (specify other currency if applicable)]. In no event shall any registered holder of a Warrant (each, a "Holder") or any Owner (as defined in Section 1.01(c)) be entitled to receive any interest on any Cash Settlement Value [or Cancellation Amount, as the case may be], and the Warrants shall not entitle the Holders or Owners thereof to any of the rights of the holder of any of the securities on which the Index is based (the "Underlying Securities") or any other securities. No Warrant shall require or entitle the Holder or Owner thereof to sell, deliver, purchase or take delivery of any Underlying Securities or any other securities to or from the Corporation, nor shall the Corporation be under any obligation to purchase or take delivery of, or sell or deliver, any such securities to or from the Holders or Owners thereof. (b) The Warrants shall constitute direct, unconditional and unsecured obligations of the Corporation. (c) The Warrants shall initially be issued in book-entry form and represented by one or more global certificates (each, a "Global Warrant Certificate"). Owners of beneficial interests in a Global Warrant Certificate (each, an "Owner") shall not be entitled to receive definitive certificates evidencing the Warrants; provided, however, that the Corporation shall issue Warrants in definitive form (each, a "Definitive Warrant Certificate", and with the Global Warrant Certificates, the "Warrant Certificates") in exchange for a Global Warrant Certificate if (i) the Depository (as defined in Section 1.01(d)) has notified the Corporation that it is unwilling or unable to continue as Depository for such Global Warrant Certificate or if at any time it has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, at a time when it is required to be so registered in order to act as Depository, and a successor Depository is not appointed by the Corporation within 90 days, (ii) the Corporation at any time shall determine to have the Warrants represented by Definitive Warrant Certificates and shall execute and deliver to the Warrant Agent a written order signed in the name of the Corporation by its Chairman of the Board, its Vice Chairman, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary (each such order, a "Corporation Order") stating that the Corporation wishes to issue Warrants in definitive form in exchange for such Global Warrant Certificate, or (iii) there shall have occurred and be continuing a default in the payment of the Cash -2- Settlement Amount [or Cancellation Amount, as the case may be,] with respect to the Warrants. In any such instance, and in accordance with the provisions of this Agreement, each Owner shall be entitled to have registered in its name the number of Warrants in definitive form equivalent to such Owner's beneficial interest in such Global Warrant Certificate and shall be entitled to physical delivery of Definitive Warrant Certificates representing such Warrants by the Depository Participant or Indirect Participant (each as defined in Section 1.01(d)) through which such Owner's beneficial interest is reflected. (d) Each Global Warrant Certificate shall initially be registered in the name of, and the Holder of each Warrant represented by such Global Warrant Certificate shall be, [The Depository Trust Company] or its agent (the "Depository", which term shall include any nominee of the Depository and any successor depository selected by the Corporation as provided in Section 1.01(e)), and shall be deposited with the Depository or its agent for credit to the accounts of the Depository Participants as shown on the records of the Depository from time to time. The Warrant holdings of Depository Participants shall be recorded on the books of the Depository. The Warrant holdings of Indirect Participants and of Owners who are customers of Depository Participants shall be reflected on the books and records of such Depository Participants and shall not be known to the Warrant Agent, the Corporation or the Depository. The Warrant holdings of Owners who are customers of Indirect Participants shall be reflected on the books and records of such Indirect Participants and shall not be known to the Warrant Agent, the Corporation, the Depository Participants or the Depository. Neither the Corporation nor the Warrant Agent shall have any responsibility or liability for any aspect of the records relating to beneficial ownership interests in a Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to any such beneficial ownership interest. As used herein, the term "Depository Participant" shall include any participant in the Depository's system and, for purposes of this Agreement, shall also mean any participant in the book- entry system of any successor Depository. As used herein, the term "Indirect Participant" shall include any other bank, securities dealer, trust company or other Person (as defined below) that clears or maintains a custodial relationship with a Depository Participant, either directly or indirectly. As used herein, the term "Person" shall include any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. -3- (e) The Corporation may from time to time select a new Person to act as Depository and, if such selection is made, the Corporation shall promptly give the Warrant Agent and the existing Depository notice to such effect identifying the new Depository. As promptly as practicable thereafter, the Depository shall deliver each Global Warrant Certificate then held by it to the Warrant Agent, and the Warrant Agent shall register the transfer of such Global Warrant Certificate to the new Depository as provided in Section 1.04. Appropriate changes may be made in each Global Warrant Certificate, and in the notice of exercise and the related notices delivered in connection with an exercise or deemed exercise of Warrants to reflect the selection of the new Depository. Section 1.02. Form; Denominations; Execution, Countersignature, Delivery and Dating of Global Warrant Certificates. (a) At any time and from time to time after the execution and delivery of this Agreement, the Corporation may deliver one or more Global Warrant Certificates, each representing any integral number of Warrants [not exceeding ________________ Warrants originally issued,] executed by the Corporation as set forth in Section 1.02(b), to the Warrant Agent for countersignature, together with a Corporation Order for the countersignature and delivery of such Warrants, and the Warrant Agent shall manually countersign and deliver such Warrants in accordance with such Corporation Order. During such time as Warrants shall be represented by Global Warrant Certificates, the Corporation may issue additional Warrants in accordance with the terms of this Agreement either by issuing an additional Global Warrant Certificate or by issuing a new Global Warrant Certificate in exchange for the existing Global Warrant Certificate, provided that any such exchange shall conform to the requirements set forth in Section 1.04(f). (b) Each Global Warrant Certificate, whenever issued, shall be in registered form substantially in the form of Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement. Each Global Warrant Certificate shall be printed, lithographed, typewritten, mimeographed or engraved on steel engraved borders or otherwise reproduced in any other manner as may be approved by the officers executing the same (such execution to be conclusive evidence of such approval) and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the same may approve (such execution to be conclusive evidence of such approval) and -4- that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any securities exchange on which the Warrants may be listed, or of the Depository, or to conform to usage. Each Global Warrant Certificate shall be signed on behalf of the Corporation by its Chairman of the Board, its Vice Chairman, its President or one of its Vice Presidents, under its corporate seal reproduced thereon and attested by its Secretary or one of its Assistant Secretaries. The signature of any such officer on any Global Warrant Certificate may be either manual or facsimile. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Global Warrant Certificate that has been duly countersigned and delivered by the Warrant Agent. (c) No Global Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, unless such Global Warrant Certificate has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Global Warrant Certificate executed by the Corporation shall be conclusive evidence, and the only evidence, that such Global Warrant Certificate so countersigned has been duly issued hereunder. (d) Any Global Warrant Certificate bearing the manual or facsimile signatures of individuals who were at the time of such signature the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the countersignature and delivery of such Global Warrant Certificate or did not hold such offices at the date of such Global Warrant Certificate. (e) Each Global Warrant Certificate shall be dated the date of its countersignature. Section 1.03. Definitive Warrant Certificates. (a) Any Definitive Warrant Certificate issued in accordance with Section 1.01(c), whenever issued, shall be in registered form substantially in the form of Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or necessary or desirable for individual Definitive Warrant Certificates, provided that each such Definitive Warrant Certificate shall have imprinted on the reverse thereof the Exercise Notice substantially in the form of Exhibit B-2. Each Definitive Warrant Certificate -5- may represent any integral number of Warrants [not exceeding ________________ Warrants originally issued], shall be printed, lithographed, typewritten, mimeographed or engraved on steel engraved borders or otherwise reproduced in any other manner as may be approved by the officers executing the same (such execution to be conclusive evidence of such approval), and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the same may approve (such execution to be conclusive evidence of such approval) and that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any securities exchange on which the Warrants may be listed, or of the Depository, or to conform to usage. Each Definitive Warrant Certificate shall be signed on behalf of the Corporation upon the same conditions, in substantially the same manner and with the same effect as set forth in Section 1.02 with respect to Global Warrant Certificates. (b) Each Definitive Warrant Certificate, when so signed on behalf of the Corporation, shall be delivered to the Warrant Agent together with a Corporation Order for the countersignature and delivery of such Warrants, and the Warrant Agent shall manually countersign and deliver such Warrants in accordance with such Corporation Order upon the same conditions, in substantially the same manner and with the same effect as set forth in Section 1.02 with respect to Global Warrant Certificates. Each Definitive Warrant Certificate shall be dated the date of its countersignature. (c) No Definitive Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, unless such Definitive Warrant Certificate has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Definitive Warrant Certificate executed by the Corporation shall be conclusive evidence, and the only evidence, that such Definitive Warrant Certificate so countersigned has been duly issued hereunder. (d) Any Definitive Warrant Certificate bearing the manual or facsimile signatures of individuals who were at the time of such signature the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the countersignature and delivery of such -6- Definitive Warrant Certificate or did not hold such offices at the date of such Definitive Warrant Certificate. (e) Definitive Warrant Certificates delivered in exchange for a Global Warrant Certificate shall be registered in such names and addresses (including tax identification numbers) and in such denominations as shall be requested in writing by the Depository or its nominee in whose name such Global Warrant Certificate is registered, upon written certification to the Corporation and the Warrant Agent, in form satisfactory to each of them, of the existing beneficial ownership interests in such Global Warrant Certificate. (f) The Holder of any Warrant represented by a Definitive Warrant Certificate shall be the Person in whose name such Definitive Warrant Certificate is registered in the Warrant Register (as defined in Section 1.04) at such time. Section 1.04. Maintenance of Warrant Register; Registration of Transfers and Exchanges of Global Warrant Certificates. (a) The Corporation shall cause to be kept at the Warrant Agent Office (as defined in Section 1.04(b)) a register (the "Warrant Register"), which may be maintained electronically and in which, subject to such reasonable regulations as it may prescribe, the Corporation shall provide for the registration and registration of transfer, exchange, exercise and cancellation of Warrants. The Warrant Agent is hereby appointed "Warrant Registrar" for the purpose of registering Warrant Certificates and transfers and exchanges of Warrant Certificates as herein provided. (b) A Warrant Certificate may be transferred at the option of the Holder thereof upon surrender of such Warrant Certificate at the office or agency of the Warrant Agent maintained for the purpose of transferring, exchanging, exercising and canceling the Warrants, which shall be south of Chambers Street in the Borough of Manhattan, The City of New York (the "Warrant Agent Office"), and which is, on the date of this Agreement, _______________________, New York, New York, _____, Attention: [Corporate Trust Department], or at the office of any successor Warrant Agent as provided in Article IV. Upon any such registration of transfer, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, in the name of the designated transferee a new Global Warrant Certificate or Definitive Warrant Certificate, as the case may be, of like tenor, of any -7- authorized denomination and representing in the aggregate a like number of unexercised Warrants as evidenced by such Warrant Certificate at the time of such registration of transfer, and bearing a number not contemporaneously outstanding. (c) A Warrant Certificate may be exchanged at the option of the Holder thereof for other Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, of like tenor, of any authorized denomination and representing in the aggregate a like number of unexercised Warrants, upon surrender of such Warrant Certificate at the Warrant Agent Office. Whenever any Warrant Certificate is so surrendered for exchange, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, the Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, that the Holder of such exchanged Warrant Certificate is entitled to receive and bearing a number not contemporaneously outstanding. (d) Any Warrant Certificate presented or surrendered for registration of transfer or for exchange shall be duly endorsed or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Corporation, duly signed by the registered Holder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a bank or trust company, by a broker or dealer that is a member of the National Association of Securities Dealers, Inc. or by a member of a national securities exchange. (e) Except as otherwise provided herein or in a Global Warrant Certificate, the Warrant Agent shall register the transfer of such Global Warrant Certificate on the records of the Warrant Agent only to the Depository, to a nominee of the Depository, to a successor Depository or to a nominee of the successor Depository. (f) A Global Warrant Certificate may be exchanged for a new Global Warrant Certificate to reflect the issuance by the Corporation of additional Warrants[; provided, however, that in no event shall the number of Warrants represented by any Global Warrant Certificate exceed ___________________ originally issued]. To effect such an exchange, the Corporation shall deliver to the Warrant Agent a new Global Warrant Certificate duly executed on behalf of the Corporation as provided in Section 1.02, together with a Corporation Order for the countersignature and delivery of such Warrants. The Warrant Agent shall countersign such new -8- Global Warrant Certificate as provided in Section 1.02 and in accordance with such Corporation Order, and shall deliver such new Global Warrant Certificate to the Depository in exchange for, and upon receipt of, the Global Warrant Certificate then held by the Depository. The Warrant Agent shall cancel the Global Warrant Certificate delivered to it by the Depository and return the canceled Global Warrant Certificate to the Corporation. (g) All Warrant Certificates issued upon any registration of transfer or exchange of Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, shall be valid obligations of the Corporation, evidencing the same obligations of the Corporation and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered upon such registration of transfer or exchange. The Warrant Agent shall not be required to effect any exchange or transfer that would result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. (h) No service charge shall be made for any registration of transfer or exchange of Warrant Certificates, but the Corporation may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such transfer or exchange. Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. (a) If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Corporation shall execute, and the Warrant Agent shall countersign and deliver in exchange therefor, as provided in Section 1.02 or 1.03, as the case may be, a new Warrant Certificate of like tenor representing a like number of unexercised Warrants and bearing a number not contemporaneously outstanding. (b) If there shall be delivered by a Holder of a Warrant Certificate to the Corporation and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate, (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, and (iii) funds sufficient to cover any cost or expense to the Corporation (including any fees charged by the Warrant Agent) relating to the issuance of a new Warrant Certificate, then, in the absence of notice to the Corporation or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Corporation shall execute, and the -9- Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor representing a like number of unexercised Warrants and bearing a number not contemporaneously outstanding. (c) If the Warrants evidenced by any such mutilated, destroyed, lost or stolen Warrant Certificate have been exercised, or have been or are about to be deemed to be exercised, the Corporation in its discretion may, instead of issuing a new Warrant Certificate, treat the same as if it had received written irrevocable notice of exercise in good form in respect thereof, as provided herein. (d) Upon the issuance of any new Warrant Certificate under this Section, the Corporation may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) connected therewith. (e) Every new Warrant Certificate issued pursuant to this Section 1.05 in lieu of any mutilated, destroyed, lost or stolen Warrant Certificate shall constitute an original additional contractual obligation of the Corporation, whether or not the mutilated, destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly issued hereunder. (f) The provisions of this Section 1.05 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Warrant Certificates. Section 1.06. Cancellation of Warrants. (a) If the Corporation shall purchase or otherwise acquire Warrants represented by a Global Warrant Certificate, such Warrants may, at the option of the Corporation and upon notification to the Warrant Agent, be surrendered free through a Depository Participant for credit to the Warrant Account (as defined in Section 2.01(b)) and if so credited, the Warrant Agent shall promptly note the cancellation of such Warrants by notation on the records of the Warrant Agent and on the Warrant Register. -10- (b) When all of the Warrants represented by any Global Warrant Certificate have been exercised by the Owner thereof, automatically exercised or otherwise canceled, and upon receipt of the same by the Warrant Agent, the Warrant Agent shall promptly cancel such Global Warrant Certificate. (c) The Corporation may at any time deliver to the Warrant Agent for cancellation any Definitive Warrant Certificates previously countersigned and delivered hereunder that the Corporation may have acquired in any manner whatsoever, and the Warrant Agent shall promptly cancel all Definitive Warrant Certificates so delivered. (d) All Warrant Certificates surrendered for exercise, registration of transfer or exchange or cancellation, if surrendered to any Person other than the Warrant Agent, shall be delivered to the Warrant Agent, and the Warrant Agent shall promptly cancel all such Warrant Certificates and all other Warrant Certificates surrendered to it for exercise, registration of transfer or exchange or cancellation. (e) No Warrant Certificate shall be countersigned in lieu of or in exchange for any Warrant Certificate canceled as provided in this Section 1.06 except as expressly permitted by this Agreement. All canceled Warrant Certificates held by the Warrant Agent shall be destroyed by it unless by written order the Corporation requests their return to it. ARTICLE II [EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS Section 2.01. Duration of Warrants; Method of Exercise; Minimum [and Maximum] Exercise Amounts; Notice of Exercise. (a) Subject to the limitations described herein, each Warrant may be exercised in whole but not in part on any New York Business Day (as defined in Section 2.01(f)) from [its date of issuance (specify other date if applicable)] until [3:00 P.M.], New York City time, on the earlie[st] of (i) [______________ (specify date upon which right to exercise Warrants expires)] or, if such date is not a New York Business Day, on the next succeeding New York Business Day (the "Expiration Date"), [or] (ii) the date of automatic exercise as provided in Section 2.03 [or (iii) the date of cancellation as provided in Section 2.04][; provided that the Corporation may temporarily suspend the right of the Holders to exercise their Warrants pursuant to the provisions of Section 2.08]. [No exercise price shall be -11- payable by any Holder or Owner in connection with the exercise of any Warrant.] [The exercise price for each Warrant shall be $_____ and shall be payable [in U.S. dollars (specify other currency if applicable)] (the "Exercise Price").] (b) Except in the case of automatic exercise, each Warrant may be exercised by: (i) in the case of any Warrant represented by a Global Warrant Certificate (each, a "Book-Entry Warrant"), (A) transfer of such Warrant on the records of the Depository free to the Warrant Agent's Depository Participant account (entitled ____________________), or such other account of the Warrant Agent at the Depository as the Warrant Agent shall specify (the "Warrant Account"), [and] (B) delivery to the Warrant Agent as provided in Section 2.01(d)(i)(C) of written notice (an "Exercise Notice") duly completed and executed by a Depository Participant acting on behalf of the Owner of such Warrant [and (C) payment of the Exercise Price [in U.S. dollars (specify other currency if applicable)] [in cash or by cashier's check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] payable to the account of the Corporation]; and (ii) in the case of Warrants represented by a Definitive Warrant Certificate (each, a "Certificated Warrant"), (A) surrender of such Definitive Warrant Certificate to the Warrant Agent at the Warrant Agent Office, [and] (B) delivery to the Warrant Agent as provided in Section 2.01(d)(ii)(C) of an Exercise Notice duly completed and executed by the Holder of such Warrant [and (C) payment of the Exercise Price [in U.S. dollars (specify other currency if applicable)] [in cash or by cashier's check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] payable to the account of the Corporation]; provided, however, that each Exercise Notice is subject to rejection by the Warrant Agent as provided herein. (c) Not fewer than [specify minimum exercise amount] [nor more than [specify maximum exercise amount]] Warrants may be exercised by or on behalf of any one Owner or, in the case of Certificated Warrants, any one Holder at any one time, except that no such minimum [or maximum] exercise amount shall apply in the case of (i) the automatic -12- exercise of any Warrants, or (ii) the exercise of any Warrants on the Expiration Date. (d) An Exercise Notice [may be conditioned as set forth in Section 2.02(b), but] shall [otherwise] be unconditional. Each Exercise Notice shall be irrevocable and: (i) in the case of any Book-Entry Warrant, shall (A) be in the form of Exhibit B-1 hereto, [(B) shall include a certification by the Depository Participant submitting such Exercise Notice that the Owners affected by such Exercise Notice are not Index Country Residents (as defined in Section 2.01(f))] and (C) shall be sent to the Warrant Agent in writing at its address as set forth in such form of Exercise Notice or at such other address as the Warrant Agent may specify from time to time by notice given in accordance with Section 8.05; and (ii) in the case of any Certificated Warrant, shall (A) be in the form of Exhibit B-2 hereto and shall, unless otherwise agreed by the Corporation and the Warrant Agent, be set forth on the reverse of the Definitive Warrant Certificate representing such Certificated Warrant, [(B) shall include a certification by the Holder of such Certificated Warrants that such Holder is not an Index Country Resident] and (C) shall be sent to the Warrant Agent in writing at its address as set forth in such form of Exercise Notice or at such other address as the Warrant Agent may specify from time to time by notice given in accordance with Section 8.05. (e) Except as provided in Section 2.02(c), the Warrant Agent and the Corporation shall be entitled to rely conclusively on any Exercise Notice received by the Warrant Agent with no duty of inquiry by either of them. (f) As used in this Agreement, "New York Business Day" means any day other than a Saturday or Sunday or a day on which the [New York Stock Exchange or American Stock Exchange (list any other relevant securities exchanges)] is not open for securities trading or banking institutions generally in The City of New York are authorized or required by law or executive order to close; "Index Country Business Day" means any day other than (i) a Saturday or Sunday or a day on which banking institutions generally in [(specify name of Index country)] are authorized or required by law or executive order to close or (ii) a day on which the [(list names of relevant exchanges)] are not open for business[; -13- and "Index Country Resident" means a resident of, or any corporation or other Person organized under the laws of [(specify name of Index country)], its territories, its possessions or other areas subject to its jurisdiction]. Section 2.02. Exercise of Warrants. (a) Except in the case of automatic exercise as provided in Section 2.03 [or cancellation as provided in Section 2.04] and subject to Section 2.02(c)([ii]) [and 2.02(f)], the exercise date (the "Exercise Date") for a Warrant shall be (i) the New York Business Day on which the Warrant Agent receives delivery of such Warrant to the Warrant Account, in the case of Book-Entry Warrants, or of the Definitive Warrant Certificate representing such Warrant at the Warrant Agent Office, in the case of Certificated Warrants, [and] an Exercise Notice relating to such Warrant in good order [and payment of the Exercise Price in the manner specified in Section 2.01(b)], if such receipt occurs at or prior to [3:00] P.M., New York City time, on such New York Business Day, and (ii) otherwise the New York Business Day next succeeding the day on which the Warrant Agent receives such Warrant[, the Exercise Price] and such Exercise Notice, which next succeeding New York Business Day shall be the day on which such Warrant[, Exercise Price] and Exercise Notice shall be deemed to have been received. If any Exercise Notice[, the related Exercise Price] or the Warrants to which such Exercise Notice relates are received after [3:00] P.M., New York City time, on the Expiration Date, such Exercise Notice shall be void and of no effect and shall be deemed not to have been delivered. Except in the case of automatic exercise as provided in Section 2.03, the "Valuation Date" for a Warrant shall be the first Index Country Business Day next succeeding the Exercise Date of such Warrant. [The "Designated Exercise Date" for a Warrant shall be the date that, but for the provisions of Section 2.02(f), would be the Exercise Date for such Warrant in accordance with this Section 2.02(a).] [(b) Notwithstanding anything in this Agreement to the contrary, if a Depository Participant, in the case of Book-Entry Warrants, or a Holder, in the case of Certificated Warrants, has specified in its Exercise Notice that such Exercise Notice is conditional (a "Conditional Exercise Notice"), then such Conditional Exercise Notice shall be void and of no effect, and shall be disregarded for all purposes of this Agreement, if [Describe the terms upon which the Exercise Notice may be conditional, which may be as follows: the Spot Index (as defined in Section 2.02(g)) on the day that, but for the provisions of this Section 2.02(b), would be the Valuation Date for such Warrants is more than __________ [above] [below] the Spot Index on the -14- [Designated] Exercise Date of such Warrants (or, if the [Designated] Exercise Date is not an Index Country Business Day, on the immediately preceding Index Country Business Day) (the "Reference Value").] (c) Following receipt of proper delivery of any Warrant[, the Exercise Price] and the Exercise Notice related to such Warrant in accordance with Section 2.01(b), the Warrant Agent shall: [(i) deposit all funds received by it in payment of the Exercise Price of such Warrant to the account of the Corporation maintained with it for such purpose (unless otherwise instructed in writing by the Corporation), and advise the Corporation by telephone and in writing, by facsimile transmission or otherwise, at the end of each day on which any such payment is received of the amount so deposited to its account;] (ii)(A) in the case of a Book-Entry Warrant, promptly determine whether such Exercise Notice has been duly completed and is in proper form and verify that the Person that executed such Exercise Notice is listed as a Depository Participant in the most recent published edition of the Depository's Eligible Corporate Securities Book (or the comparable publication of any successor Depository) and, if such Person is not listed therein, make reasonable efforts to obtain verbal verification from the Depository's Planning Department (telephone number 212-709-1000) (or the comparable department of a successor Depository) that such Person is a Depository Participant; and (B) in the case of a Certificated Warrant, promptly determine whether such Exercise Notice has been duly completed and is in proper form and whether the Definitive Warrant Certificate representing such Warrant is in proper form; (iii)(A) in the case of a Book-Entry Warrant, if the Warrant Agent determines that such Exercise Notice has not been duly completed or is not in proper form, or is unable through the procedures described in clause ([ii])(A) above to verify that the Person that submitted such Exercise Notice is a Depository Participant, then the Warrant Agent shall reject such Exercise Notice and shall send to the Depository Participant that submitted such Exercise Notice a notice of rejection substantially in the form of Exhibit C hereto (a "Rejection Notice") and redeliver the Warrants to which such rejected Exercise Notice relates free through the facilities of the Depository -15- to the account from which they were transferred; and (B) in the case of a Certificated Warrant, if the Warrant Agent determines that such Exercise Notice has not been duly completed or is not in proper form, or that the Definitive Warrant Certificate representing such Warrant is not in proper form, then the Warrant Agent shall reject such Exercise Notice and shall send a Rejection Notice to the Holder of such Warrants and return such Definitive Warrant Certificate to such Holder by first class mail at the expense of the Corporation; (iv) by [5:00 P.M.], New York City time, on the New York Business Day on which such Exercise Notice is received (or deemed to have been received), notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of (A) the total number of Warrants in respect of which Exercise Notices were received (or deemed to have been received) at or prior to [3:00 P.M.], New York City time, on such date [and] (B) the number of such Exercise Notices that were rejected by the Warrant Agent pursuant to clause ([iii]) above and the aggregate number of Warrants to which such rejected Exercise Notices relate[, and (C) the number of such Exercise Notices that were Conditional Exercise Notices and the aggregate number of Warrants to which such Conditional Exercise Notices relate]; [(v) if any of such Exercise Notices are Conditional Exercise Notices, by [5:00 P.M.], New York City time, on the Valuation Date for such Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), (A) determine the Reference Value for such Warrants and the Spot Index for the date that, but for the provisions of Section 2.02(b), would be the Valuation Date of such Warrants; (B) determine whether any Conditional Exercise Notices have become void pursuant to such Section 2.02(b); and (C) if so, promptly notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) and send a Rejection Notice to the appropriate Depository Participant or Holder, as the case may be, and (x) in the case of Book-Entry Warrants, redeliver such Warrants free through the facilities of the Depository to the account from which they were transferred or (y) in the case of Certificated Warrants, return such Warrants to such Holder by first class mail at the expense of the Corporation.] -16- (vi) by [5:00 P.M.], New York City time, on the Valuation Date for such Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), determine the aggregate number of Warrants covered by Exercise Notices that have not [become void pursuant to Section 2.02(b) or] been rejected pursuant to clause ([iii]) above (the "[Exercised] [Tendered] Warrants"); [(vii) by [5:00 P.M.], New York City time, on the Valuation Date for the Tendered Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), determine pursuant to Section 2.02(f) the number of such Tendered Warrants that shall not be Delayed Exercise Warrants (such Tendered Warrants, the "Exercised Warrants");] (viii) by [5:00 P.M.], New York City time, on the Valuation Date for the Exercised Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), (A) determine the Cash Settlement Value of the Exercised Warrants, (B) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the aggregate Cash Settlement Value with respect to such Exercised Warrants, and (C) send notice of confirmation of exercise in substantially the form of Exhibit D hereto to the appropriate Depository Participant or Holder, as the case may be; and (ix) promptly deliver a copy of each such Exercise Notice to the Corporation and advise the Corporation of such other matters relating to any of the Warrants covered thereby, whether or not they constitute [Tendered Warrants or] Exercised Warrants, as the Corporation shall reasonably request. (d) At or before [3:00 P.M.], New York City time, on the [fifth] New York Business Day following the Valuation Date for any Exercised Warrants (or, if such Valuation Date is not a New York Business Day, on the [sixth] New York Business Day after such Valuation Date) (such date, with respect to such Exercised Warrants, the "Settlement Date"), the Corporation shall make available to the Warrant Agent funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Exercised Warrants. On the New York Business Day on which the Corporation has made adequate funds available to the Warrant Agent at or prior to [3:00 P.M.], New York City time, the Warrant Agent shall make payment available (i) if the Exercised Warrants are Book-Entry Warrants, in the form of a wire transfer to -17- the appropriate Depository Participant after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of the aggregate Cash Settlement Value of the Exercised Warrants exercised by such Depository Participant, and (ii) if the Exercised Warrants are Certificated Warrants, in the form of one or more cashier's checks or official bank checks to each appropriate Holder after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of the Cash Settlement Value of the Exercised Warrants exercised by such Holder. In the case of payments by the Warrant Agent to a Depository Participant, the Warrant Agent shall have no responsibility for the crediting by such Depository Participant of the Cash Settlement Value of such Warrants to the appropriate Owners. (e) (i) The Warrant Agent shall cause its records, which may be kept electronically, to be marked to reflect the reduction in the number of Warrants evidenced by each Global Warrant Certificate by the number of such Warrants for which payment has been made available as provided in Section 2.02(d) promptly after such payment has been made available. In the absence of manifest error, the Warrant Agent's records shall be conclusive evidence as to such matters. (ii) If any Definitive Warrant Certificate shall be surrendered to the Warrant Agent for exercise of fewer than all the Warrants represented thereby, the Corporation shall execute, and the Warrant Agent shall countersign, as provided in Section 1.02 or 1.03, as the case may be, and deliver to the Holder of such Warrants by first class mail at the expense of the Corporation a new Definitive Warrant Certificate of like tenor representing all Warrants remaining unexercised after such exercise and bearing a number not contemporaneously outstanding. [(f) The Corporation may, at its sole option, elect to limit the aggregate number of Warrants for which any Designated Exercise Date shall be the Exercise Date to a number not less than ________________ (the "Maximum Exercisable Number"). (i) The Corporation may, at its sole option, notify the Warrant Agent in writing (including by facsimile transmission) not later than [3:00 P.M.], New York City time, on the Valuation Date with respect to any Tendered Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), that the Corporation has elected to exercise its option under this Section 2.02(f) to limit -18- the number of such Tendered Warrants for which the Exercise Date to which such Valuation Date relates shall be the Designated Exercise Date for such Warrants to a number (the "Elected Maximum Number") not smaller than the Maximum Exercisable Number. If the Warrant Agent shall not have received such notice by such time, none of the following provisions in this Section 2.02(f) shall apply to such Tendered Warrants, such Designated Exercise Date shall be the Exercise Date for such Tendered Warrants, and all of such Tendered Warrants shall be deemed to be "Exercised Warrants" for purposes of this Agreement. (ii) If the Warrant Agent shall have received the notice contemplated by clause (i) above by the time specified in such clause (i), then prior to [5:00 P.M.], New York City time, on such Valuation Date (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), the Warrant Agent shall select by lot from all such Tendered Warrants, subject to clause (iii) below, Tendered Warrants for which the Exercise Date shall be such Designated Exercise Date in an aggregate number equal to the Elected Maximum Number; provided that if, as a result of such selection, any Owner or Holder, as the case may be, would be deemed to have exercised less than [(specify minimum exercise amount)] Warrants, then the Warrant Agent shall first select additional Tendered Warrants of such Owners or Holders so that no such Owner or Holder shall be deemed to have exercised fewer than [(specify minimum exercise amount)] Warrants. Only the Tendered Warrants so selected shall be deemed to be "Exercised Warrants" for purposes of Section 2.02(c). The Tendered Warrants not so selected shall be referred to herein as "Delayed Exercise Warrants" and shall be subject to exercise as provided in clause (iii) below. (iii) For purposes of this Section 2.02, each Delayed Exercise Warrant shall be deemed to have a new Designated Exercise Date on the New York Business Day next succeeding its original Designated Exercise Date, and this Section 2.02 shall apply to such Delayed Exercise Warrants as if one or more Exercise Notices with respect to the Delayed Exercise Warrants had been received by the Warrant Agent prior to [3:00 P.M.], New York City time, on such New York Business Day, provided that (x) any Delayed Exercise Warrant with respect to which any such deemed Designated Exercise Date is on or after the earlier of the Expiration Date and the Delisting Date shall be subject to automatic exercise -19- as provided in Section 2.03[, and (y) the Reference Value for any Delayed Exercise Warrant covered by a Conditional Exercise Notice shall in any event be determined by reference to the original Designated Exercise Date therefor (or, if such date is not an Index Country Business Day, on the immediately preceding Index Country Business Day)]; provided, however, that, other than in the case of automatic exercise [or cancellation], if the aggregate number of such Delayed Exercise Warrants, together with any additional Tendered Warrants for which the Designated Exercise Date is such New York Business Day shall again exceed the Maximum Exercisable Number, the provisions of this Section 2.02(f) shall apply, mutatis mutandis, to the exercise of such Delayed Exercise Warrants and such additional Tendered Warrants, provided that such Delayed Exercise Warrants shall be given priority over such additional Tendered Warrants in the selection pursuant to clause (ii) above, and among such Delayed Exercise Warrants, priority in such selections shall be given to Warrants in the order of their original Designated Exercise Dates, with Warrants having the same original Designated Exercise Date being selected by lot as described in clause (ii) above. (iv) In connection with any issuance by the Corporation of additional Warrants under this Agreement, the Corporation shall have the right, but shall not be obligated, to increase the Maximum Exercisable Number.] (g) For purposes of this Agreement: The "Cash Settlement Value" of any Warrant that is exercised (whether exercised automatically or by Exercise Notice) shall mean [_____ (specify fraction)] of the U.S. dollar equivalent (rounded to the nearest dollar) of the amount, if any, by which [(i) the Strike Index (as defined below) exceeds (ii) the Spot Index on the Valuation Date with respect to such Exercised Warrant] [(i) the Spot Index on the Valuation Date with respect to such Exercised Warrant exceeds (ii) the Strike Index (as defined below)]; provided that if such amount is less than zero, the Cash Settlement Value shall be zero. The "Strike Index" of a Warrant shall mean [Insert amount or method for determining amount]. The "Spot Index" on any date shall mean [Insert method for determining amount]. -20- The exchange rate (or manner of calculating such rate) for conversion of the Cash Settlement Value, [the Cancellation Amount,] the Strike Index, the Spot Index and/or the value of Underlying Securities, as applicable, into U.S. dollars shall be [(specify such rate or manner of calculating such rate)] and shall be determined by the Warrant Agent. "U.S. dollars", "U.S.$" or "$" are references to the currency of the United States of America. "[Index currency] or "[_______________]" are references to the currency of [(specify name of Index country)]. (h) Any notice to be given to the Corporation by the Warrant Agent pursuant to this Section 2.02 or Section 2.03 shall be by telephone (promptly confirmed in writing) or telecopy (receipt to be promptly confirmed by telephone). Section 2.03. Automatic Exercise of Warrants. (a) [Unless previously canceled pursuant to Section 2.04,] all Warrants with respect to which (i) there has been no proper delivery of Warrants to the Warrant Account, in the case of Book-Entry Warrants, or of Definitive Warrant Certificates to the Warrant Agent Office, in the case of Certificated Warrants[, or no delivery of the Exercise Price as provided in Section 2.01(b)] or no valid Exercise Notice has been received by the Warrant Agent at or prior to [3:00 P.M.], New York City time, on the earlier to occur of (A) the Expiration Date for such Warrants and (B) the last New York Business Day prior to the effective date on which the Warrants are delisted from, or permanently suspended from trading on, the __________ Stock Exchange without being accepted for listing on or prior to such New York Business Day on another United States national securities exchange (such New York Business Day, the "Delisting Date"), (ii) the Exercise Date has been postponed pursuant to Section 2.02(f) to a date on or after the earlier of the Expiration Date or the Delisting Date, [or (iii) [list other events causing automatic exercise of Warrants, if applicable]] -21- will be automatically exercised on such Expiration Date or Delisting Date [or on the date on which (specify other events leading to automatic exercise)] (any such date, a "Deemed Exercise Date") without any requirement of notice of exercise to the Warrant Agent. On the Deemed Exercise Date, all the Warrants will be canceled and will represent only a right to receive the Cash Settlement Value upon satisfaction of the requirements set forth in Section 2.03(b). The Valuation Date for such Warrants shall be the first Index Country Business Day next succeeding such Deemed Exercise Date. (b) On the Valuation Date for the Warrants to be automatically exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), the Warrant Agent shall (i) determine the Cash Settlement Value of such Warrants; (ii) by [5:00 P.M.], New York City time, on such Valuation Date (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the Cash Settlement Value of such Warrants; and (iii) advise the Corporation of such other matters relating to the automatically exercised Warrants as the Corporation shall reasonably request. (c) At or before [3:00 P.M.], New York City time, on the [eighth] New York Business Day following the Valuation Date for any Warrants automatically exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not a New York Business Day, on the [ninth] New York Business Day after such Valuation Date) (such date, with respect to such Warrants, the "Settlement Date"), the Corporation shall make available to the Warrant Agent funds in an amount equal to, and for the payment of, [(y)] the aggregate Cash Settlement Value of such automatically exercised Warrants [minus (y) the aggregate Exercise Price with respect to such Warrants, provided that if such amount is less than zero, no such funds shall be made available]. On the New York Business Day on which the Corporation has made adequate funds available to the Warrant Agent at or prior to [3:00 P.M.], New York City time, the Warrant Agent shall make payment available (i) if the automatically exercised Warrants are Book-Entry Warrants, in the form of a wire transfer to the appropriate Depository Participant after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of [(x)] the aggregate Cash Settlement Value of the Warrants held at the time of automatic exercise by such Depository Participant [minus (y) the aggregate Exercise -22- Price with respect to such Warrants, provided that if such amount is less than zero, then no such payment shall be made], and (ii) if the automatically exercised Warrants are Certificated Warrants, in the form of one or more cashier's checks or official bank checks to each appropriate Holder after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of [(x)] the Cash Settlement Value of the Warrants registered in the name of such Holder on the date of automatic exercise [minus (y) the aggregate Exercise Price with respect to such Warrants, provided that if such amount is less than zero, then no such payment shall be made]; provided, however, that the Warrant Agent shall withhold any such payment in respect of any Warrant until the conditions set forth in Section 2.03(d) have been satisfied with respect to such Warrant. In the case of payments by the Warrant Agent to a Depository Participant, the Warrant Agent shall have no responsibility for the crediting by such Depository Participant of the Cash Settlement Value of such Warrants to the appropriate Owners. (d) The Warrant Agent shall withhold payment of the Cash Settlement Value with respect to any automatically exercised Warrant until: (i) if such Warrant is a Book-Entry Warrant, [(A)] such Warrant is delivered on the records of the Depository free to the Warrant Account [and (B) the Warrant Agent receives at the Warrant Agent Office a written certification substantially in the form of Exhibit E-1 hereto, dated no earlier than the Deemed Exercise Date, executed by a Depository Participant acting on behalf of the Owner of such Warrant, to the effect that such Owner is not an Index Country Resident]; and (ii) if such Warrant is a Certificated Warrant, [(A)] the Definitive Warrant Certificate representing such Warrant is surrendered to the Warrant Agent at the Warrant Agent Office, [and (B) the Warrant Agent receives at the Warrant Agent Office a certification in the form of Exhibit E-2 hereto, dated no earlier than the Deemed Expiration Date, to the effect that the Holder of such Definitive Warrant Certificate is not an Index Country Resident]. (e) When payment has been made in respect of all Warrants represented by a Warrant Certificate, the Warrant Agent shall, promptly upon receipt of such Warrant Certificate, cancel such Warrant Certificate and deliver it to the Corporation. -23- [Section 2.04. Cancellation of Warrants. (a) [insert conditions and effects of cancellation, if applicable].] (b) [The "Cancellation Amount" of a Warrant shall mean [Insert amount or method for determining amount].] Section 2.05. Discontinuance or Modification of Index. (a) If the Index is not calculated and announced by [name of Index publisher] (the "Index Publisher") on any Valuation Date but is calculated and publicly announced by another Person not affiliated with the Corporation and acceptable to the Corporation (the "Third Party"), the applicable Cash Settlement Value [or Cancellation Amount, as the case may be,] shall be calculated by reference to the value of the closing quotation for the Index so calculated and announced by the Third Party. (b) If, prior to any Valuation Date, the Index Publisher or the Third Party shall make a material change in the formula for or the method of calculating the Index, the Corporation shall promptly appoint an investment or commercial bank of international standing that is not an affiliate of the Corporation (an "Independent Expert") who shall make such calculations as may be required to determine the applicable Cash Settlement Value [or Cancellation Amount, as the case may be,] using the formula and method of calculating the Index as in effect prior to such change or modification. (c) If, on any Valuation Date, neither the Index Publisher nor any Third Party is calculating and disseminating the Index and neither is providing any successor index, the Corporation shall promptly appoint an Independent Expert who shall make such calculations as it determines may be required to determine the applicable Cash Settlement Value [or Cancellation Amount, as the case may be,] using the formula and method of calculating the Index as in effect on the date the Index was last so calculated. (d) If any of the events referred to in Sections 2.05(a) through (c) shall occur, the Corporation shall promptly make available information regarding the composition, method of calculation and current level of the Index or successor index upon written request to the Corporation's offices at 280 Park Avenue, New York, New York 10017, Attention: _________________. In addition, the Corporation shall undertake reasonable efforts to ensure that such information is publicly available. If the Index Publisher shall elect to suspend or discontinue calculating or announcing the Index, the Corporation shall so notify -24- Holders by giving notice to the Holders as their names and addresses appear in the Warrant Register. Section 2.06. Designation of Agent for Receipt of Notice. The Corporation may from time to time designate in writing to the Warrant Agent a single designee for receipt of all notices required to be given by the Warrant Agent to the Corporation pursuant to this Article II and all such notices thereafter shall be given in the manner herein provided by the Warrant Agent to such designee and each such notice shall be as effective as if given directly to the Corporation. [Section 2.07. Extraordinary Events. [(Specify conditions and effects of extraordinary events, if applicable)].] [Section 2.08. Temporary Suspension of the Right to Exercise the Warrants. [(Specify conditions and method of temporary suspension of right to exercise, if applicable)].] ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS Section 3.01. Treatment of Holders. (a) The Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and treat the Person in whose name each Global Warrant Certificate shall be registered in the records of the Warrant Agent as the absolute Holder of all right, title and interest in such Global Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for all purposes hereunder and as the Person entitled to exercise the rights represented by the Warrants evidenced thereby, whether or not such Warrants shall be exercised or deemed to be exercised, and neither the Corporation nor the Warrant Agent, nor any agent of the Corporation or the Warrant Agent shall be affected by any notice to the contrary, except that the Warrant Agent and the Corporation shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated by Article II of this Agreement. (b) Prior to due presentment of a Definitive Warrant Certificate for registration of transfer, the Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may treat the Person in -25- whose name such Definitive Warrant Certificate is registered as the absolute Holder of all right, title and interest in such Definitive Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for all purposes hereunder and as the Person entitled to exercise the rights represented by the Warrants evidenced thereby, whether or not such Warrants shall be exercised or deemed to be exercised, and neither the Corporation, the Warrant Agent nor any agent of the Corporation or the Warrant Agent shall be affected by notice to the contrary. Section 3.02. Holder or Owner of Warrant May Enforce Rights. Notwithstanding any other provision of this Agreement, any Owner, in the case of Book-Entry Warrants, and any Holder, in the case of Certificated Warrants, without the consent of the Warrant Agent or the Owner or Holder of any other Warrant, may, in and for such Owner's or Holder's own behalf, and for such Owner's or Holder's own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Corporation suitable to enforce, or otherwise in respect of, such Owner's or Holder's right to exercise, and to receive payment for, such Owner's or Holder's Warrants as provided in such Warrants and in this Agreement. ARTICLE IV CONCERNING THE WARRANT AGENT Section 4.01. Warrant Agent. The Corporation hereby appoints [name of Warrant Agent] as the Warrant Agent of the Corporation in respect of the Warrants upon the terms and subject to the conditions set forth herein and in the Warrants, and [name of Warrant Agent] hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it herein and in the Warrants and such further powers and authority acceptable to it to act on behalf of the Corporation as the Corporation may hereafter grant to or confer upon it. All of the terms and provisions with respect to such powers and authority contained in the Warrants are subject to and governed by the terms and provisions hereof. Section 4.02. Certain Duties of the Warrant Agent. (a) Except during the continuation of a default in the performance by the Corporation of its obligations in respect of the Warrants, the Warrant Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or -26- obligations shall be read into this Agreement against the Warrant Agent. (b) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Section 4.03. Conditions of Warrant Agent's Obligations. The Warrant Agent accepts its obligations set forth herein upon and subject to the terms and conditions hereof and of the Warrants, including the following, to all of which the Corporation agrees and to all of which the rights hereunder of the Owners and Holders from time to time of the Warrants shall be subject: (a) The Corporation agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Corporation for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses, disbursements and advances (including reasonable attorneys' fees and expenses and reasonable compensation, expenses and disbursements of its agents) incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Corporation also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without negligence, bad faith or breach of this Agreement on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder or with respect to the Warrants, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Corporation under this subsection (a) shall survive the exercise of the Warrants and the resignation or removal of the Warrant Agent. (b) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or thing suffered by it in reliance upon any Warrant, resolution, opinion, report, request, notice, direction, consent, certificate, -27- affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties, provided that any request or direction of the Corporation shall be sufficiently evidenced by a Corporation Order delivered to the Warrant Agent, and any resolution of the Board of Directors shall be sufficiently evidenced by a copy of the resolution certified by the Secretary or an Assistant Secretary to have been duly adopted by the Board of Directors of the Corporation, or by a committee of such Board of Directors or an officer of the Corporation appointed by the Board of Directors of the Corporation for such purpose, and to be in full force and effect on the date of such certification and delivered to the Warrant Agent (any such resolution, a "Board Resolution"). (c) The Warrant Agent may consult with counsel satisfactory to it, which may include counsel to the Corporation, and the written opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such written opinion. (d) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any Corporation Order or Board Resolution, but the Warrant Agent, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. (e) The Warrant Agent, and any of its officers, directors and employees, in its individual or any other capacity, may become the Owner or Holder of, or acquire any interest in, any Warrants or other obligations of the Corporation, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Corporation and may act on, or as depositary, trustee or agent for, any committee or body of Owners or Holders of Warrants or other obligations of the Corporation as freely as if it were not the Warrant Agent hereunder. (f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrants except as otherwise agreed with the Corporation, nor shall it be obligated -28- to segregate such monies from other monies held by it, except as required by law. (g) The Warrant Agent shall not be under any liability with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrants or the Warrant Certificates (except the countersignature thereof). (h) The recitals contained herein and in the Warrants (except as to the Warrant Agent's countersignature thereon) shall be taken as the statements of the Corporation, and the Warrant Agent assumes no responsibility for the correctness thereof. (i) The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Corporation of any of the Warrant Certificates countersigned by the Warrant Agent and delivered by it to the Corporation pursuant to this Agreement or for the application by the Corporation of any proceeds. (j) The Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its covenants or agreements contained herein or in the Warrants or in the case of the receipt of any written demand from an Owner or Holder of a Warrant with respect to such default, including, without limitation, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 8.03, to make any demand upon the Corporation. (k) In acting under this Agreement and in connection with the Warrants, the Warrant Agent is acting solely as the agent of the Corporation and does not assume any obligation or relationship of agency or trust for or with any of the Owners or Holders of the Warrants. Section 4.04. Compliance With Applicable Laws. The Warrant Agent agrees to comply with all applicable federal and state laws imposing obligations on it in respect of the services rendered by it under this Agreement and in connection with the Warrants, including (but not limited to) the provisions of United States federal income tax laws regarding information reporting and backup withholding. The Warrant Agent expressly assumes all liability for its -29- failure to comply with any such laws imposing obligations on it, including (but not limited to) any liability for its failure to comply with any applicable provisions of United States federal income tax laws regarding information reporting and backup withholding. Section 4.05. Corporate Warrant Agent Required; Eligibility. The Corporation agrees, for the benefit of the Owners or Holders from time to time of the Warrants, that there shall at all times be a Warrant Agent hereunder until all of the Warrants have been exercised or are no longer exercisable, which shall be a banking institution organized under the laws of the United States of America or one of the states thereof and having an office or an agent's office south of Chambers Street in the Borough of Manhattan, The City of New York. Section 4.06. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Warrant Agent and no appointment of a successor Warrant Agent pursuant to this Section 4.06 shall become effective until the acceptance of appointment by the successor Warrant Agent under Section 4.07. (b) The Warrant Agent may resign at any time by giving written notice of such resignation to the Corporation specifying such resignation and the date on which it desires such resignation to become effective, provided that, without the consent of the Corporation, such date shall not be less than 90 days after the date on which such notice is given. If an instrument of acceptance by a successor Warrant Agent shall not have been delivered to the Warrant Agent within 90 days after the giving of such notice of resignation, the resigning Warrant Agent may petition any court of competent jurisdiction for the appointment of a successor Warrant Agent with respect to the Warrants. (c) The Corporation may remove the Warrant Agent at any time by giving written notice thereof to the Warrant Agent specifying such removal and the date on which the Corporation desires such removal to become effective. (d) If at any time: (i) the Warrant Agent shall cease to be eligible to act as such under Section 4.05 and shall fail to resign after the Corporation shall have delivered a written request therefor, or (ii) the Warrant Agent shall become incapable of acting as such, or shall be adjudged a bankrupt or -30- insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or a receiver or custodian of it or of all or any substantial part of its property shall be appointed, or an order of any court shall be entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or similar law, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs, for the purpose of rehabilitation, conservation or liquidation, or (iii) the Corporation shall elect to remove the Warrant Agent, provided that no default shall then exist with respect to the Warrants, then in any such case, the Corporation by a Board Resolution may remove the Warrant Agent with respect to all the Warrants. (e) If the Warrant Agent shall resign or be removed, or if a vacancy shall occur in the office of the Warrant Agent for any other reason, the Corporation, by a Board Resolution, shall promptly appoint a successor Warrant Agent with respect to the Warrants, it being understood that at any time there shall be only one Warrant Agent with respect to the Warrants. (f) The Corporation shall give notice to the Owners or Holders of the Warrants of each resignation and each removal of the Warrant Agent and each appointment of a successor Warrant Agent with respect to the Warrants in accordance with Section 8.05. Each such notice shall include the name of the successor Warrant Agent and the address of its Warrant Agent Office. Section 4.07. Acceptance of Appointment by Successor. (a) If a successor Warrant Agent is appointed hereunder, such successor Warrant Agent so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Warrant Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Warrant Agent shall become effective and such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Warrant Agent; provided, however, that on the request of the Corporation or the successor Warrant Agent, such retiring Warrant Agent shall, upon -31- payment of its charges and disbursements then unpaid, execute and deliver an instrument transferring to such successor Warrant Agent all the rights and powers of the retiring Warrant Agent and shall duly assign, transfer and deliver to such successor Warrant Agent all property and money held by such retiring Warrant Agent hereunder. (b) Upon the request of any such successor Warrant Agent, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Warrant Agent all such rights and powers referred to in Section 4.07(a). (c) No successor Warrant Agent shall accept its appointment, and no such acceptance shall be effective, unless at the time of such acceptance such successor Warrant Agent shall be qualified and eligible under this Article IV. Section 4.08. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all of the business of the Warrant Agent, shall be the successor of the Warrant Agent hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation shall be otherwise qualified and eligible under this Article IV. If any Warrant Certificates shall have been countersigned, but not delivered, by the Warrant Agent then in office, any successor by merger, conversion or consolidation to such countersigning Warrant Agent may adopt such countersignature and deliver the Warrant Certificates so countersigned with the same effect as if such successor Warrant Agent had itself countersigned such Warrant Certificates. ARTICLE V CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE Section 5.01. Consolidations and Mergers of the Corporation and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. (a) The Corporation may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided that, in any such case, (i) either the Corporation shall be the continuing corporation, or the successor corporation shall be a -32- corporation organized and existing under the laws of the United States of America or a state thereof and such successor corporation shall expressly assume, by Supplemental Agreement (as defined in Section 6.01(a)) satisfactory to the Warrant Agent and executed and delivered to the Warrant Agent by such corporation, the due and punctual payment of the Cash Settlement Value [or Cancellation Amount, as the case may be,] with respect to all unexercised Warrants, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Agreement to be performed by the Corporation, and (ii) the Corporation or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale, lease or conveyance, be in default in the performance of any such covenant or condition. In case of any such consolidation, merger, sale, lease or conveyance and upon such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Corporation, with the same effect as if it had been named herein as such, and the predecessor Corporation, except in the event of a lease, shall be relieved of any further obligation hereunder or under the Warrants. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Corporation, new Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, representing Warrants not theretofore exercised, in exchange and substitution for the Global Warrant Certificates and Definitive Warrant Certificates theretofore issued; and upon the order of such successor corporation, instead of the Corporation, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Warrant Agent shall countersign and shall deliver the new Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, that such successor corporation shall have caused to be signed and delivered to the Warrant Agent for countersignature. Such Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, shall in all respects have the same legal rank and benefit under this Agreement as the Warrant Certificates theretofore issued in accordance with the terms of this Agreement as though such new Warrant Certificates had been issued at the date of issue of the Warrant Certificates for which they are exchanged. In case of any such consolidation, merger, sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the new Warrant Certificates as may be appropriate. (b) The Warrant Agent may receive a written opinion of counsel (who may be an employee of the -33- Corporation or other counsel acceptable to the Warrant Agent) (an "Opinion of Counsel") as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption, complies with the provisions of this Article V. ARTICLE VI SUPPLEMENTAL AGREEMENTS Section 6.01. Amendment of Index Warrant Agreement. (a) This Agreement and the Warrants may be amended by the Corporation, when authorized by a Board Resolution, and the Warrant Agent (which amendment shall take the form of a supplemental index warrant agreement) (each, a "Supplemental Agreement")), without the consent of the Owners or Holders of the Warrants, for the purpose of: (i) curing any ambiguity or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein, or of making any other provisions with respect to matters or questions arising under this Agreement that shall not be inconsistent with the provisions of this Agreement or the Warrants; or (ii) evidencing the succession of another corporation to the Corporation and the assumption by any such successor of the covenants of the Corporation contained herein and in the Warrants in accordance with Article V; or (iii) appointing a successor Depository in accordance with Section 1.01(e); or (iv) evidencing and providing for the acceptance of appointment hereunder by a successor Warrant Agent in accordance with Section 4.07; or (v) adding to the covenants of the Corporation for the benefit of the Owners or Holders of the Warrants or surrendering any right or power herein conferred upon the Corporation; or (vi) issuing Warrants in the form of Definitive Warrant Certificates in accordance with Section 1.01(c); or (vii) amending this Agreement and the Warrants in any manner that the Corporation may deem to be -34- necessary or desirable and that will not materially and adversely affect the interests of the Owners or Holders of the Warrants. (b) The Corporation and the Warrant Agent may amend this Agreement and the Warrants (which amendment shall take the form of a Supplemental Agreement), with the consent of the Owners or Holders, as the case may be, of not fewer than 66-2/3% in number of the unexercised Warrants affected by such amendment, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Owners or Holders of the Warrants under this Agreement; provided, however, that, without the consent of each Owner or Holder affected thereby, no such amendment may be made that changes the determination of the Cash Settlement Value [or Cancellation Amount, as the case may be,] of the Warrants (or any aspects of such determination) so as to reduce the amount receivable upon exercise or deemed exercise of the Warrants, shortens the period of time during which the Warrants may be exercised, or otherwise materially and adversely affects the exercise rights of the Owners or Holders, as the case may be, or reduces the number of unexercised Warrants the consent of the Owners or Holders of which is required for amendment of this Agreement or the Warrants. The Corporation and the Warrant Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from the Owners of Warrants represented by a Global Warrant Certificate. Such certification may be provided by Depository Participants acting on behalf of such Owners of Warrants, provided that any such certification is accompanied by a certification from the Depository as to the Global Warrant Certificate holdings of such Depository Participants. Section 6.02. Form of Approval of Supplemental Agreements by Owners or Holders. It shall not be necessary for the Owners or Holders of the Warrants to approve the particular form of any proposed Supplemental Agreement, but it shall be sufficient if the Owners or Holders, as the case may be, shall approve the substance of the Supplemental Agreement. Section 6.03. Effect of Supplemental Agreements. Upon the execution of any Supplemental Agreement under this Article, this Agreement shall be modified in accordance therewith, such Supplemental Agreement shall form a part of this Agreement for all purposes, and, subject to the proviso to the first sentence of Section 6.01(b), every Owner or -35- Holder of Warrants theretofore or thereafter countersigned and delivered hereunder shall be bound thereby. Section 6.04. Reference in Warrants to Supplemental Agreements. Warrants countersigned and delivered after the execution of any Supplemental Agreement pursuant to this Article may, and shall if required by the Warrant Agent, bear a notation in form approved by the Warrant Agent as to any matter provided for in such Supplemental Agreement. If the Corporation shall so determine, new Warrants so modified as to conform, in the opinion of the Warrant Agent and the Corporation, to any such Supplemental Agreement may be prepared and executed by the Corporation and countersigned and delivered by the Warrant Agent in exchange for unexercised Warrants. ARTICLE VII COVENANTS OF THE CORPORATION Section 7.01. Listing of Warrants on National Securities Exchange. (a) The Corporation covenants, for the benefit of the Owners or Holders of the Warrants, as the case may be, that (i) it will seek to obtain the listing of the Warrants on [name of national securities exchange] and (ii) until the Expiration Date, it will not seek the delisting of the Warrants from, or permanent suspension of their trading on, [name of national securities exchange] unless prior to such delisting or suspension the Warrants shall have been listed, and shall be trading, on another national securities exchange. (b) The Corporation shall advise the Warrant Agent of the date of any expected delisting or permanent suspension of trading of the Warrants as soon as is practicable and will immediately inform the Warrant Agent after the Corporation has received notice that such delisting or suspension has occurred, but in no event shall notice of such delisting or suspension be given to the Warrant Agent later than [3:00 P.M.], New York City time, on the fifth New York Business Day preceding the date that such delisting or suspension occurs. (c) The Corporation shall notify the Owners or Holders of the Warrants in accordance with Section 8.05 as promptly as is practicable of any expected delisting or suspension of trading of the Warrants. Section 7.02. Governmental Approvals. The Corporation shall from time to time take all reasonable -36- action necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and the [name of national securities exchange], and shall make all filings under United States federal and state laws, that may be or become requisite in connection with the issuance, sale, trading, transfer, delivery or exercise of the Warrants, each Global Warrant Certificate and each Definitive Warrant Certificate. Section 7.03. Payment of Cash Settlement Value [or Cancellation Amount]. The Corporation agrees, for the benefit of the Owners or Holders of the Warrants, that it will duly and punctually pay the Cash Settlement Value [or Cancellation Amount, as the case may be,] on each Warrant in accordance with the terms of the Warrants and this Agreement, and that the right of each such Owner or Holder, as the case may be, to receive payment of the Cash Settlement Amount [or Cancellation Amount, as the case may be,] on such Warrant when such amount is due and payable shall be absolute and unconditional. Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys. (a) The Corporation shall maintain an office and agency at which the Warrants may be presented or surrendered for exercise or registration of transfer or exchange or cancellation and where notices and demands to or upon the Corporation in respect of the Warrants and this Agreement may be served, which office and agency shall be the same as the location of the Warrant Agent Office, and the Corporation hereby appoints the Warrant Agent as its agent to receive all such presentations, surrenders, notices and demands. (b) The Corporation shall, on or prior to each due date of the Cash Settlement Value [or Cancellation Amount, as the case may be,] on any Warrant, deposit with the Warrant Agent a sum sufficient to pay the Cash Settlement Value [or Cancellation Amount, as the case may be,] so becoming due, such sum to be held for the benefit of the Persons entitled to such Cash Settlement Value [or Cancellation Amount, as the case may be]. (c) Any money deposited with the Warrant Agent for the payment of the Cash Settlement Value [or Cancellation Amount, as the case may be,] on any Warrant and remaining unclaimed for three years after such Cash Settlement Value [or Cancellation Amount, as the case may be,] has become due and payable, shall be paid to the Corporation, at the request of the Corporation, and the Person entitled to such money shall thereafter, as an unsecured general creditor, look only to the Corporation for -37- payment thereof, and all liability of the Warrant Agent with respect to such money shall thereupon cease; provided, however, that the Warrant Agent, before being required to make any such repayment, may at the expense of the Corporation, cause notice to be given in accordance with Section 8.05 to the Person entitled to such money that such money remains unclaimed and that, after a date specified therein, which shall be not less than 30 days from the date of such notice, any unclaimed balance of such money then remaining will be repaid to the Corporation. Section 7.05. Corporate Existence. Subject to Article V, the Corporation shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Corporation shall not be required to preserve any right or franchise if its Board of Directors or a committee thereof shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Corporation and that the loss thereof is not disadvantageous in any material respect to the Owners or Holders of the Warrants, as the case may be. ARTICLE VIII MISCELLANEOUS Section 8.01. Reopening of Issue of Warrants. The Corporation may, from time to time, issue additional Warrants under this Agreement. All Warrants issued hereunder, from and after the date they are issued, shall be identical. Section 8.02. Payment of Taxes. The Corporation shall pay all documentary stamp taxes attributable to the initial issuance of Warrants; provided, however, that the Corporation shall not be required to pay any tax or other governmental charge that may be payable in respect of any transfer involving any beneficial or record interest in or ownership interest of any Warrants. Section 8.03. Notices and Demands to the Corporation and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Corporation by any Owner or Holder pursuant to the provisions of the Warrants, the Warrant Agent shall promptly forward such notice or demand to the Corporation. -38- Section 8.04. Addresses for Notices. Any communications from the Corporation to the Warrant Agent with respect to this Agreement shall be addressed to [name of Warrant Agent], [address] (facsimile: (___) ___-____) (telephone: (___) ___-____), Attention: [Corporate Trust Department]; any communications from the Warrant Agent to the Corporation with respect to this Agreement shall be addressed to Bankers Trust New York Corporation, 280 Park Avenue, New York, New York 10017 (facsimile: (212) ___-____) (telephone: (212) ___-____), Attention: [________________] (or, in either case, at such other address as shall be specified in writing to the other by the Warrant Agent or the Corporation, as the case may be). Section 8.05. Notices to Owners and Holders. The Corporation or the Warrant Agent shall give any notice to be given to the Owners of Book-Entry Warrants by providing the Depository with a form of notice to be distributed by the Depository to Depository Participants in accordance with the customs and practices of the Depository. The Corporation or the Warrant Agent shall give notice to the Holders of Certificated Warrants by mailing written notice by first class mail, postage prepaid, to such Holders as their names and addresses appear in the Warrant Register. SECTION 8.06. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT ISSUED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 8.07. Benefits of Index Warrant Agreement. Nothing in this Agreement or in the Warrants expressed or implied and nothing that may be inferred from any of the provisions hereof or thereof is intended, or shall be construed, to confer upon, or give to, any Person other than the Corporation, the Warrant Agent and their respective successors and assigns, and the Owners or Holders of the Warrants, as the case may be, any right, remedy or claim under or by reason of this Agreement or the Warrants or of any covenant, condition, stipulation, promise or agreement hereof or thereof, and all covenants, conditions, stipulations, promises and agreements contained in this Agreement or in the Warrants shall be for the sole and exclusive benefit of the Corporation and the Warrant Agent and their respective successors and assigns and of the Owners or Holders of the Warrants, as the case may be. Section 8.08. Successors and Assigns. All covenants and agreements in this Agreement by the Corporation shall bind its successors and assigns, whether so expressed or not. -39- Section 8.09. Index Warrant Agreement and Warrants Solely Corporate Obligations. No recourse for the payment of the Cash Settlement Value [or Cancellation Amount, as the case may be,] of any Warrant or for any claim based on any Warrant or this Agreement shall be had against any director or officer or stockholder, past, present or future, of the Corporation. Any such claim against any such Person is expressly waived as a condition of, and as consideration for, the execution and delivery of this Agreement and the issue of the Warrants. Section 8.10. Severability. If any provision in this Agreement or in the Warrants shall be invalid, illegal, or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions, or of such provisions in any other jurisdiction, shall not in any way be affected or impaired thereby. Section 8.11. Headings. The descriptive headings of the several Articles and Sections and the Table of Contents of this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. Section 8.12. Counterparts. This Agreement may be executed by the parties hereto in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Section 8.13. Inspection of Index Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the Warrant Agent Office for inspection by the Owners or Holders of the Warrants, as the case may be, the Depository Participants and the Indirect Participants. In the case of Certificated Warrants, the Warrant Agent may require the Holder of such Warrant to submit such Holder's Warrant Certificate for inspection by the Warrant Agent. -40- IN WITNESS WHEREOF, this Index Warrant Agreement has been duly executed by the parties hereto as of the day and year first above written. BANKERS TRUST NEW YORK CORPORATION By:___________________________ Name: Title: [SEAL] Attest: ___________________________ [Assistant] Secretary [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: [SEAL] Attest: _____________________________ [Assistant Secretary] -41- EXHIBIT A [WARRANTS EVIDENCED BY THIS WARRANT CERTIFICATE CANNOT BE EXERCISED PRIOR TO ________ __, 199__.] [NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS WARRANT UNLESS THE WARRANT AGENT HAS RECEIVED THE CERTIFICATION DESCRIBED IN THE INDEX WARRANT AGREEMENT] EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN VOID AFTER [3:00 P.M.], NEW YORK CITY TIME, ON ________ __, 199__ No. _________ CUSIP No. ____________ GLOBAL WARRANT CERTIFICATE representing ________ [Name of Index] Index [Put/Call] Warrants Expiring ________ __, 199__ BANKERS TRUST NEW YORK CORPORATION This certifies that [______________] or registered assigns is the registered holder of [insert number initially issued] [insert name of Index] Index [Put/Call] Warrants (the "Warrants"), or such lesser amount as is indicated in the records of [name of Warrant Agent], as Warrant Agent. Each Warrant entitles the [beneficial owner thereof (an "Owner")] [registered holder thereof (a "Holder")], subject to the provisions contained herein and in the Index Warrant Agreement referred to below, to receive from Bankers Trust New York Corporation, a New York corporation (the "Corporation"), the Cash Settlement Value (as defined below) [or Cancellation Amount (as defined below), as the case may be,] thereof in [U.S. dollars (specify other currency if applicable)], as further described below. [No exercise price shall be payable by any Holder or Owner in connection with the exercise of any Warrant.] [The exercise price for each Warrant shall be $_____ and shall be payable in [U.S. dollars (specify other currency if applicable)] (the "Exercise Price").] In no event shall any [Owner] [Holder] be entitled to any interest on the Cash Settlement Value [or Cancellation Amount] (unless the Corporation shall default in the payment of such Cash Settlement Value). Subject to the terms of the Index Warrant Agreement, each Warrant may be exercised or deemed to be A-1 exercised in whole but not in part on any New York Business Day (as defined below) from [the date of issuance (specify other date if applicable)] until [3:00 P.M.], New York City time, on the earlie[st] of (i) [_________ (specify date upon which right to exercise Warrants expires)] or, if such date is not a New York Business Day, on the next succeeding New York Business Day (the "Expiration Date"), [or] (ii) the date of automatic exercise [or (iii) the date of cancellation], as further described below and as provided in the Index Warrant Agreement. Except in the case of automatic exercise or any exercise on the Expiration Date, not fewer than [(specify minimum exercise amount)] [nor more than [(specify maximum exercise amount)] Warrants may be exercised by or on behalf of any one [Owner] [Holder] at any one time. References herein to "U.S. dollars", "U.S.$" or "$" are references to the currency of the United States of America. References to "[(insert name of Index currency)]" or "[_______]" are references to the currency of [name of Index country]. As used herein, the term "New York Business Day" means any day other than a Saturday or Sunday or a day on which the New York Stock Exchange or the American Stock Exchange [or (list any other relevant securities exchanges)] is not open for securities trading or banking institutions generally in The City of New York are authorized or required by law or executive order to close; "Index Country Business Day" means any day other than (i) a Saturday or a Sunday or a day on which banking institutions generally in [(specify name of Index country)] are authorized or required by law or executive order to close or (ii) a day on which the [names of relevant stock exchanges] are not open for business[; and "Index Country Resident" means a resident of, or any corporation or other Person organized under the laws of [(specify name of Index country)], its territories, its possessions or other areas subject to its jurisdiction]. This [Global] [Definitive] Warrant Certificate is issued under and in accordance with the Index Warrant Agreement, dated as of ________ __, 199__ (the "Index Warrant Agreement"), between the Corporation and the Warrant Agent, and is subject to the terms and provisions contained in the Index Warrant Agreement, to all of which terms and provisions all [Owners] [Holders] of the Warrants represented by this [Global] [Definitive] Warrant Certificate [and the Holder of this Global Warrant Certificate] consent by acceptance hereof [by the Depository (as defined below)]. Copies of the Index Warrant Agreement are on file at the Warrant Agent Office at ______________, New York, New York, _____, Attention: Corporate Trust Department, or at such other office as may be specified in a notice given to the [Owners] [Holders] of the Warrants. [Except as provided in the Index Warrant Agreement, Owners A-2 will not be entitled to receive definitive certificates evidencing their Warrants. Warrant holdings will be held through a depository selected by the Corporation, which initially is [The Depository Trust Company], or its agent (the "Depository", which term, as used herein, includes any successor depository selected by the Corporation) as further provided in the Index Warrant Agreement.] Capitalized terms included herein but not defined herein have the meanings assigned to them in the Index Warrant Agreement. The Cash Settlement Value of any Exercised Warrants (whether exercised automatically or by Exercise Notice) shall mean [__________________ (specify fraction)] of the U.S. dollar equivalent (rounded to the nearest dollar) of the amount, if any, by which [(i) the Strike Index (as defined below) exceeds (ii) the Spot Index (as defined below) on the Valuation Date (as defined below) with respect to such Exercised Warrant] [the amount, if any, by which (i) the Spot Index (as defined below) on the Valuation Date (as defined below) with respect to such Exercised Warrant exceeds (ii) the Strike Index]; provided that if such amount is less than zero, the Cash Settlement Value shall be zero. [The Cancellation Amount of any Exercised Warrants shall mean [Insert method for determining amount].] The "Spot Index" on any date shall mean [Insert amount or method for determining amount]. The "Strike Index" of any Exercised Warrant shall mean [Insert amount or method for determining amount]. The exchange rate (or manner of calculating such rate) for conversion of the Cash Settlement Value, [the Cancellation Amount,] the Strike Index, the Spot Index and/or the value of Underlying Securities, as applicable, into U.S. dollars shall be [_____________ (specify such rate or manner of calculating such rate)] and shall be determined by the Warrant Agent. Except in the case of automatic exercise [or cancellation] as further provided below and in the Index Warrant Agreement, and subject to any Maximum Exercisable Number of Warrants, the "Valuation Date" for any Warrant shall be the first Index Country Business Day next succeeding the "Exercise Date", which shall be the New York Business Day on which the Warrant Agent has received (i) delivery of [such Warrant on the records of the Depository free to the Warrant Account] [the Definitive Warrant Certificate representing such Warrant at the Warrant Agent Office][, (ii) the Exercise Price] and ([iii]) an Exercise Notice for such Warrant in good order in the form of [Exhibit B-1] [Exhibit B-2] to the Index Warrant Agreement, [which shall include certification that the A-3 [exercising Owner] [Holder] is not an Index Country Resident,] at or prior to [3:00 P.M.], New York City time; provided that if the Warrant Agent receives such Warrant[, the Exercise Price] or the Exercise Notice after [3:00 P.M.] on such day, the "Exercise Date" shall be the next succeeding New York Business Day and such Warrant[, Exercise Price] and Exercise Notice shall be deemed to have been received on such next succeeding New York Business Day. Any delivery of a Warrant or Exercise Notice received after [3:00 P.M.], New York City time, on the Expiration Date shall be void and of no effect and shall be deemed not to have been delivered. [A [Depository Participant] [Holder] may specify in its irrevocable Exercise Notice in relation to a Warrant that such Exercise Notice is conditional (a "Conditional Exercise Notice"), and in such case such Conditional Exercise Notice shall be void and of no effect and shall be disregarded for all purposes of the Index Warrant Agreement if [Describe the terms upon which the Exercise Notice may be conditional, which may be as follows: the Spot Index on the day that, but for the provisions of this sentence, would be the Valuation Date for such Warrant is more than [_________________] [above] [below] the Spot Index on the [Designated] Exercise Date of such Warrants (or, if such date is not an Index Country Business Day, on the immediately preceding Index Country Business Day) (the "Reference Value").] By [5:00 P.M.], New York City time, on the New York Business Day on which such Exercise Notice is received (or deemed to have been received), the Warrant Agent shall notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the number of Warrants in respect of which Exercise Notices, not rejected pursuant to the Index Warrant Agreement, were received (or deemed to have been received) at or prior to [3:00 P.M.], New York City time, on such date, the number of such Exercise Notices that were rejected by the Warrant Agent pursuant to the Index Warrant Agreement and the number of Warrants to which such rejected Exercise Notices relate [and the number of such Exercise Notices that were Conditional Exercise Notices (and the number of Warrants to which such Conditional Exercise Notices relate)]. By [5:00 P.M.], New York City time, on the Valuation Date for such Warrants (or if such Valuation Date is not a New York Business Day, then the next succeeding New York Business Day), the Warrant Agent shall (i) [(x) after obtaining the Reference Value and the Spot Index for such Valuation Date, determine whether any Conditional Exercise Notices have become void pursuant to Section 2.02(b) of the Index Warrant Agreement, and if so, promptly notify the Corporation (and such other parties (not to exceed two) as A-4 the Corporation shall designate in writing) and send a Rejection Notice in the form of Exhibit C to the Index Warrant Agreement to the appropriate [Depository Participant] [Holder] and redeliver such Warrants to such [Depository Participant] [Holder] as provided in the Index Warrant Agreement and (y)] determine the aggregate number of [Tendered] [Exercised] Warrants, (ii) [determine pursuant to Section 2.02(f) of the Index Warrant Agreement the number of such Tendered Warrants which shall be Exercised Warrants, (iii)] determine the Cash Settlement Value (in the manner provided in Section 2.02(h) of the Index Warrant Agreement) of the Exercised Warrants, (iv) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the Cash Settlement Value with respect to such Warrants, (v) send notice of confirmation of exercise in substantially the form of Exhibit D to the Index Warrant Agreement to the appropriate [Depository Participant] [Holder] and (vi) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of such other matters relating to the Exercised Warrants as the Corporation shall reasonably request. If the Corporation has made adequate funds available to the Warrant Agent in a timely manner as provided in the Index Warrant Agreement, the Warrant Agent will make payment in the form of a wire transfer to the appropriate Depository Participant on the [fifth] New York Business Day following the Valuation Date (or, if such Valuation Date is not a New York Business Day, on the [sixth] New York Business Day after such Valuation Date) (the "Settlement Date"), all as provided in the Index Warrant Agreement, such payment to be in the amount of the Cash Settlement Value in respect of Exercised Warrants exercised by such Depository Participant. [The Warrant Agent shall have no responsibility for the crediting by such Depository Participant of the Cash Settlement Value of such Warrants to the appropriate Owners.] [The Warrant Agent will cause its records to be marked to reflect the reduction in the number of Warrants represented by this Global Warrant Certificate by the number of Warrants for which payment has been made in accordance with the Index Warrant Agreement.] [If this Definitive Warrant Certificate shall be surrendered to the Warrant Agent for exercise of fewer than all the Warrants represented hereby, the Warrant Agent shall issue and deliver to the Holder of the Warrants represented hereby by first class mail at the expense of the Corporation a Definitive Warrant Certificate representing all Warrants remaining unexercised after such exercise.] A-5 All Warrants with respect to which (i) there has been no proper delivery of Warrants to the Warrant Account and no valid Exercise Notice has been received by the Warrant Agent at or prior to [3:00 P.M.], New York City time, on the earlier to occur of (A) the Expiration Date for such Warrants and (B) the last New York Business Day prior to the effective date on which the Warrants are delisting from, or permanently suspended from trading on, the [name of national securities exchange] without being accepted for listing on or prior to such New York Business Day on another United States national securities exchange (such New York Business Day, the "Delisting Date"), (ii) the Exercise Date has been postponed pursuant to Section 2.02(f) of the Index Warrant Agreement to a date on or after the earlier of the Expiration Date and the Delisting Date, [or (iii) list other events causing automatic exercise of Warrants, if applicable] will be automatically exercised on such Expiration Date or Delisting Date [or on the date on which (list other dates of automatic exercise)] (any such date, a "Deemed Exercise Date") without any requirement of notice of exercise to the Warrant Agent. The Valuation Date for such Warrants shall be the first Index Country Business Day following such Deemed Exercise Date. If the Corporation has made adequate funds available to the Warrant Agent in a timely manner as set forth in the Index Warrant Agreement, the Warrant Agent will make its payment available in the form of [a wire transfer to the appropriate Depository Participant] [one or more cashier's checks or official bank checks to the appropriate Holder] in the amount of [(x)] the Cash Settlement Amount with respect to each Warrant [minus (y) the Exercise Price], after [3:00 P.M.], New York City time, but prior to the close of business, on the [eighth] New York Business Day following the Valuation Date for such automatically exercised Warrants (or, if such Valuation Date is not a New York Business Day, on the [ninth] New York Business Day after such Valuation Date), such payment to be in the amount of the aggregate Cash Settlement Value in respect of Warrants that have been automatically exercised, all as provided in the Index Warrant Agreement; provided, however, that the Warrant Agent shall withhold any such payment with respect to any Warrants for which the Warrant Agent has not received [(i)] the related Warrants through transfer of such Warrants to the Warrant Account[, and (ii) certification that the Owner of such Warrants is not an Index Country Resident, dated no earlier than the Deemed Expiration Date and in the form of Exhibit E-1 to the Index Warrant Agreement]. When payment has been made in respect of all automatically exercised Warrants represented by this Warrant Certificate, the Warrant Agent shall, promptly upon receipt A-6 cancel this Warrant Certificate and deliver it to the Corporation. If the Index is not calculated and announced by the [name of Index Publisher] (the "Index Publisher") on a Valuation Date but is calculated and publicly announced by another Person not affiliated with the Corporation and acceptable to the Corporation (the "Third Party"), the applicable Cash Settlement Value [or Cancellation Amount] shall be calculated by reference to the value of the closing quotation for the Index so calculated and announced by the Third Party. If, prior to any Valuation Date, the Index Publisher or the Third Party makes a material change in the formula for or the method of calculating the Index, the Corporation shall promptly appoint an investment or commercial bank of international standing that is not an affiliate of the Corporation (the "Independent Expert") who shall make such calculations as may be required to determine the applicable Cash Settlement Value [or Cancellation Amount] using the formula and method of calculating the Index as in effect prior to such change or modification. If, on any Valuation Date, neither the Index Publisher nor any Third Party is calculating and disseminating the Index and neither is providing any successor index, the Corporation shall promptly appoint an Independent Expert who shall make such calculations as it determines may be required to determine the applicable Cash Settlement Value [or Cancellation Amount] using the formula and method of calculating the Index as in effect on the date the Index was last so calculated. If any of the events referred to above with respect to the calculation of the Index shall occur, the Corporation shall promptly make available information regarding the composition, method of calculation and current level of the Index or successor index upon written request to the Corporation's offices at Bankers Trust New York Corporation, 280 Park Avenue, New York, New York 10017, Attention: [_______________]. In addition, the Corporation shall undertake reasonable efforts to ensure that such information is publicly available. If the Index Publisher shall elect to suspend or discontinue calculating or announcing the Index, the Corporation shall so notify the Owners by giving notice to the Depository in accordance with the Index Warrant Agreement. The Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and treat A-7 the registered Holder hereof as the absolute Holder of all right, title and interest in the Warrants evidenced hereby (notwithstanding any notation of ownership or other writing hereon) for any purpose and as the Person entitled to exercise the rights represented by the Warrants evidenced hereby, and neither the Corporation nor the Warrant Agent nor any agent of the Corporation or the Warrant Agent shall be affected by any notice to the contrary, except that the Corporation and the Warrant Agent shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated herein and in the Index Warrant Agreement. Subject to the terms of the Index Warrant Agreement, upon due presentment for registration of transfer or exchange of this [Global] [Definitive] Warrant Certificate at the Warrant Agent Office, the Corporation shall execute and the Warrant Agent shall countersign and deliver in the name of the designated transferee a new [Global] [Definitive] Warrant Certificate or [Global] [Definitive] Warrant Certificates of like tenor and representing in the aggregate a like number of unexercised Warrants as evidenced by this [Global] [Definitive] Warrant Certificate at the time of such registration of transfer, which shall be issued to the designated transferee in exchange for this [Global] [Definitive] Warrant Certificate, subject to the limitations provided in the Index Warrant Agreement, without charge. This [Global] [Definitive] Warrant Certificate and the Index Warrant Agreement are subject to amendment as provided in the Index Warrant Agreement. THIS [GLOBAL] [DEFINITIVE] WARRANT CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This [Global] [Definitive] Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent. A-8 IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal. Dated as of ________ __, 199__ BANKERS TRUST NEW YORK CORPORATION By:___________________________ Name: Title: [SEAL] Attest:_______________________ Name: Title: Countersigned on the date above written: [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: A-9 EXHIBIT B-1 Form of Exercise Notice for Warrants Represented by a Global Warrant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation [name of Index] Index [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") 1. We refer to the Index Warrant Agreement, dated as of ________ __, 199__ (the "Index Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). On behalf of certain beneficial owners, each of whom is exercising no fewer than [__________] Warrants covered by this Notice and whose Warrants are held through the Depository in our name, we hereby irrevocably exercise [_____________] Warrants (the "Tendered Warrants"). 2. This Exercise Notice [is] [is not] a Conditional Exercise Notice. [We hereby acknowledge that a Conditional Exercise Notice will be void and of no effect (and shall be disregarded for all purposes under the Index Warrant Agreement) if the Spot Index on the date that, but for the provisions of Section 2.02(b) of the Index Warrant Agreement, would be the Valuation Date for the Warrants is more than [__________] [above] [below] the Spot Index on the [Designated] Exercise Date (or, if the [Designated] Exercise Date is not an Index Country Business Day, on the immediately preceding Index Country Business Day).] 3. We have instructed the Depository to deliver the Exercised Warrants free through the Depository to the Warrant Account [Account No. _______________])[, and we have made payment of the Exercise Price as provided in Section 2.01(b) of the Index Warrant Agreement]. 4. We hereby acknowledge that this Exercise Notice[, the Exercise Price] and the Tendered Warrants must be received by you by [3:00 P.M.], New York City time, on a New York Business Day in order for the Valuation Date of the Tendered Warrants to be the Index Country Business Day next succeeding such New York Business Day, and that if this Exercise Notice[, the Exercise Price] or the Tendered Warrants are received by you after [3:00 P.M.], New York City time, but prior to the close of business on a New York Business Day, the Valuation Date of the Tendered Warrants shall be the Index Country Business Day next succeeding the first New York Business Day following the day on which this Exercise Notice[, the Exercise Price] and the Tendered Warrants are received. [We further acknowledge that if this Conditional Exercise Notice[, the Exercise Price] or the Tendered Warrants are received by you after [3:00] P.M., New York City time, but prior to the close of business on a New York Business Day, that for purposes of making the determinations required by such Conditional Exercise Notice, the Warrants will be deemed to be exercised on the New York Business Day next succeeding the day on which this Exercise Notice[, the Exercise Price] and the Tendered Warrants are received.] 5. We hereby certify that we are a participant of [The Depository Trust Company] (the "Depository") with the present right to use and receive its services. 6. We hereby acknowledge that if you determine that this Exercise Notice has not been duly completed, or is not in proper form, or you are unable to verify that we are a participant of the Depository as provided above, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered. 7. We hereby direct you to make payment to us of amounts payable to the beneficial owners of the Tendered Warrants as a result of the exercise of the Tendered Warrants hereunder as follows: [_] By cashier's check or an official bank check; or [_] By wire transfer to the following U.S. dollar bank account in the United States: (Minimum payments of $100,000 only) Bank: Account No.: ABA Routing No.: B-1-2 Reference: _____________________________ [8. We hereby certify that none of the clients on whose behalf we are exercising the above referenced Warrants are Index Country Residents.] Capitalized terms used herein and not defined have the meanings assigned to them in the Index Warrant Agreement. Dated: ________ __, 199__ [NAME OF DEPOSITORY PARTICIPANT] [Participant Number] By:______________________ Name: Title: [Address] Telephone: Facsimile: B-1-3 EXHIBIT B-2 Form of Exercise Notice for Warrants Represented by a Definitive Warrant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation [name of Index] Index [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") 1. We refer to the Index Warrant Agreement, dated as of ________ __, 199__ (the "Index Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby irrevocably exercise [_____________] Warrants (the "Tendered Warrants") and deliver to you herewith a Definitive Warrant Certificate or Certificates, registered in the name of the undersigned, representing a number of Warrants at least equal to the number of Exercised Warrants [and payment of the Exercise Price as provided in Section 2.01(b) of the Index Warrant Agreement]. 2. This Exercise Notice [is] [is not] a Conditional Exercise Notice. [We hereby acknowledge that a Conditional Exercise Notice will be void and of no effect (and shall be disregarded for all purposes under the Index Warrant Agreement) if the Spot Index on the date that, but for the provisions of Section 2.02(b) of the Index Warrant Agreement, would be the Valuation Date for the Warrants is more than [__________] [above] [below] the Spot Index on the Exercise Date (or, if the Exercise Date is not an Index Country Business Day, on the immediately preceding Index Country Business Day).] 3. We hereby acknowledge that this Exercise Notice[, the Exercise Price] and the Definitive Warrant Certificates representing the Tendered Warrants must be received by you by [3:00] P.M., New York City time, on a New York Business Day in order for the Valuation Date of the Tendered Warrants to be the Index Country Business Day next succeeding such New York Business Day, and that if this Exercise Notice[, the Exercise Price] or such Definitive Warrant Certificates are received by you after [3:00] P.M., New York City time, but prior to the close of business on a New York Business Day, the Valuation Date of the Tendered Warrants shall be the Index Country Business Day next succeeding the first New York Business Day following the day on which this Exercise Notice[, the Exercise Price] and such Definitive Warrant Certificates are received. [We further acknowledge that if this Conditional Exercise Notice[, the Exercise Price] or such Definitive Warrant Certificates are received by you after [3:00] P.M., New York City time, but prior to the close of business on a New York Business Day, that for purposes of making the determinations required by such Conditional Exercise Notice, the Warrants will be deemed to be exercised on the New York Business Day next succeeding the day on which this Exercise Notice[, the Exercise Price] and such Definitive Warrant Certificates are received.] 4. We hereby acknowledge that if you determine that this Exercise Notice has not been duly completed or is not in proper form, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered. 5. We hereby direct you to make payment of amounts payable to us as a result of the exercise of the Warrants hereunder as follows: [_] By cashier's check or an official bank check; or [_] By wire transfer to the following U.S. dollar bank account in the United States: (Minimum payments of $100,000 only) Bank: __________________________ Account No.: ___________________ ABA Routing No.: _______________ Reference: _____________________ [6. We hereby certify that at the time this notice is delivered to you, the beneficial owners of the Tendered Warrants are not Index Country Residents.] B-2-2 Capitalized terms used herein and not defined have the meanings assigned to them in the Index Warrant Agreement. Dated: ________ __, 199__ [NAME OF HOLDER] By:______________________ Name: Title: [Address] Telephone: Facsimile: B-2-3 EXHIBIT C Form of Rejection Notice [NAME OF DEPOSITORY PARTICIPANT OR HOLDER], [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation [name of Index] Index [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Index Warrant Agreement, dated as of ________ __, 199__ (the "Index Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent"). In the case of Tendered Warrants represented by a Global Warrant Certificate and rejected pursuant to Section 2.02(c)(v) of the Index Warrant Agreement: You are hereby notified that [the Exercise Notice delivered by you was determined by us not to have been [duly completed] [in proper form]] [we were not able to verify that you are a Depository Participant of [The Depository Trust Company] in the manner, and pursuant to the procedures], as set forth in the Index Warrant Agreement. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form. In the case of Tendered Warrants represented by a Definitive Warrant Certificate and rejected pursuant to Section 2.02(c)(ii) of the Index Warrant Agreement: You are hereby notified that [the Exercise Notice delivered by you was determined by us not to have been [duly completed] [in proper form]] [the Definitive Warrant Certificate delivered by you was determined by us not to have been in proper form], as set forth in the Index Warrant Agreement. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form. [In the case of Tendered Warrants that become void pursuant to Section 2.02(b) of the Index Warrant Agreement: You are hereby notified that we have rejected your Conditional Exercise Notice because the Spot Index on the Valuation Date was [____________], and the Spot Index on the [Designated] Exercise Date (or, if the [Designated] Exercise Date was not an Index Country Business Day, on the immediately preceding Index Country Business Day) was [_______________].] Capitalized terms used herein and not defined have the meanings assigned to them in the Index Warrant Agreement. Dated: ________ __, 199__ [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: C-2 EXHIBIT D Form of Confirmation of Exercise [NAME OF DEPOSITORY PARTICIPANT OR HOLDER], [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation [name of Index] Index [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Index Warrant Agreement, dated as of ________ __, 199__ (the "Index Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent"). We hereby confirm receipt of your Exercise Notice with respect to ____________ Warrants (the "Exercised Warrants"), and the [Definitive Warrant Certificates representing the] Warrants relating thereto, which Exercise Notice [and Definitive Warrant Certificates] we have found to be duly completed and in good order[, and we have verified, in the manner provided in the Index Warrant Agreement, that you are a Depository Participant]. [The Corporation has elected to limit the number of Warrants that may have an Exercise Date of ___________ __, 199__ to [____________]. Of the Tendered Warrants, [_______________] Warrants have been selected to be Warrants that will have an Exercise Date on such date (such Warrants, the "Exercised Warrants"). The remaining [_____________] Tendered Warrants are deemed to be Delayed Exercise Warrants.] [The Corporation has not elected to limit the number of Warrants that may be exercised pursuant to Section 2.02(f) of the Index Warrant Agreement. Accordingly, all of the Tendered Warrants will have an Exercise Date of __________ __, 199__ and are hereinafter referred to as "Exercised Warrants".] We hereby confirm that the aggregate Cash Settlement Value of [payment currency] [_________________] of such Exercised Warrants ([payment currency] [_____________] per Warrant) [minus the aggregate Exercise Price thereof] will be made available to you in the form of a [wire transfer] [check], [five] New York Business Days after the Valuation Date for the Exercised Warrants (or, if the Valuation Date for the Exercised Warrants was not a New York Business Day, [six] New York Business Days after the Valuation Date) in accordance with the terms of the Index Warrant Agreement. Capitalized terms used herein and not defined have the meanings assigned to them in the Index Warrant Agreement. Dated: ________ __, 199__ [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: D-2 EXHIBIT E-1 Form of Depository Participant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Automatic Exercise of Bankers Trust New York Corporation [name of Index] Index [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Index Warrant Agreement, dated as of ________ __, 199__ (the "Index Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby certify that: (a) we are acting on behalf of the Owners of ____________ Warrants, which have been automatically exercised pursuant to the Index Warrant Agreement and which we have delivered free on the records of the Depository to the Warrant Account[; and (b) we have received certification from such Owners that the beneficial owners of such Warrants are not Index Country Residents]. Capitalized terms used herein and not defined have the meanings assigned to them in the Index Warrant Agreement. Dated: ________ __, 199__ [NAME OF DEPOSITORY PARTICIPANT] [Participant Number] By:______________________ Name: Title: [Address] Telephone: Facsimile: E-1-2 EXHIBIT E-2 Form of Holder Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Automatic Exercise of Bankers Trust New York Corporation [name of Index] Index [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Index Warrant Agreement, dated as of ________ __, 199__ (the "Index Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby certify that: (a) we are the Holders of ____________ Warrants, which have been automatically exercised pursuant to the Index Warrant Agreement; [and] (b) we have surrendered the Definitive Warrant Certificates representing such Warrants at the Warrant Agent Office[; and (c) as of the date hereof, the beneficial owners of such Warrants are not Index Country Residents]. Capitalized terms used herein and not defined have the meanings assigned to them in the Index Warrant Agreement. Dated: ________ __, 199__ [NAME OF HOLDER] By:______________________ Name: Title: [Address] Telephone: Facsimile: E-2-2 EX-4.9 6 INTEREST RATE WARRANT AGREEMENT EXHIBIT 4.9 ================================================================================ INTEREST RATE WARRANT AGREEMENT dated as of ________ __, 199__ between BANKERS TRUST NEW YORK CORPORATION and [NAME OF WARRANT AGENT], as Warrant Agent --------------------------- Interest Rate [Put/Call] Warrants Expiring ________ __, 199__ ================================================================================ TABLE OF CONTENTS Page PARTIES........................................................1 RECITALS.......................................................1 ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES Section 1.01. The Warrants; Issuance of Warrants; Book-Entry Procedures; Successor Depository..................................... 1 Section 1.02. Form; Denominations; Execution, Countersignature, Delivery and Dating of Global Warrant Certificates................................... 4 Section 1.03. Definitive Warrant Certificates................ 5 Section 1.04. Maintenance of Warrant Register; Registration of Transfers and Exchanges of Global Warrant Certificates................................... 7 Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant Certificates.................... 9 Section 1.06. Cancellation of Warrants....................... 10 ARTICLE II [EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS Section 2.01. Duration of Warrants; Method of Exercise; Minimum [and Maximum] Exercise Amounts; Notice of Exercise....................................... 11 Section 2.02. Exercise of Warrants........................... 14 Section 2.03. Automatic Exercise of Warrants................. 21 [Section 2.04. Cancellation of Warrants...................... 24 [Section 2.05. Discontinuance or Modification of [Debt Instrument] [Rate]....................... 24 Section 2.06. Designation of Agent for Receipt of Notice......................................... 24 [Section 2.07. Extraordinary Events.......................... 24 Section 2.08. Temporary Suspension of the Right to Exercise the Warrants....................... 24 ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS Section 3.01. Treatment of Holders........................... 24 Section 3.02. Holder or Owner of Warrant May Enforce Rights................................. 25 ARTICLE IV CONCERNING THE WARRANT AGENT Section 4.01. Warrant Agent.................................. 25 Section 4.02. Certain Duties of the Warrant Agent.......................................... 26 Section 4.03. Conditions of Warrant Agent's Obligations.................................... 26 Section 4.04. Compliance With Applicable Laws................ 29 Section 4.05. Corporate Warrant Agent Required; Eligibility.................................... 29 Section 4.06. Resignation and Removal; Appointment of Successor....................... 29 Section 4.07. Acceptance of Appointment by Successor...................................... 31 Section 4.08. Merger, Conversion, Consolidation or Succession to Business...................... 31 ARTICLE V CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE Section 5.01. Consolidations and Mergers of the Corporation and Sales, Leases and Conveyances Permitted Subject to Certain Conditions............................. 32 ARTICLE VI SUPPLEMENTAL AGREEMENTS Section 6.01. Amendment of Interest Rate Warrant Agreement...................................... 33 Section 6.02. Form of Approval of Supplemental Agreements by Owners or Holders................ 35 Section 6.03. Effect of Supplemental Agreements............... 35 -ii- Section 6.04. Reference in Warrants to Supplemental Agreements........................ 35 ARTICLE VII COVENANTS OF THE CORPORATION Section 7.01. Listing of Warrants on National Securities Exchange............................ 35 Section 7.02. Governmental Approvals......................... 36 Section 7.03. Payment of Cash Settlement Value [or Cancellation Amount]....................... 36 Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys............................... 36 Section 7.05. Corporate Existence............................ 37 ARTICLE VIII MISCELLANEOUS Section 8.01. Reopening of Issue of Warrants................. 38 Section 8.02. Payment of Taxes............................... 38 Section 8.03. Notices and Demands to the Corporation and Warrant Agent.................. 38 Section 8.04. Addresses for Notices.......................... 38 Section 8.05. Notices to Owners and Holders.................. 38 SECTION 8.06. GOVERNING LAW.................................. 39 Section 8.07. Benefits of Interest Rate Warrant Agreement...................................... 39 Section 8.08. Successors and Assigns......................... 39 Section 8.09. Interest Rate Warrant Agreement and Warrants Solely Corporate Obligations.................................... 39 Section 8.10. Severability................................... 39 Section 8.11. Headings....................................... 39 Section 8.12. Counterparts................................... 40 Section 8.13. Inspection of Interest Rate Warrant Agreement...................................... 40 EXHIBITS Exhibit A Form of Warrant Certificate Exhibit B-1 Form of Exercise Notice from Depository Participant Exhibit B-2 Form of Exercise Notice from Holder of Definitive Warrant Certificate Exhibit C Form of Rejection Notice Exhibit D Form of Confirmation of Exercise -iii- Exhibit E-1 Form of Depository Participant Certificate Exhibit E-2 Form of Holder Certificate INTEREST RATE WARRANT AGREEMENT -iv- INTEREST RATE WARRANT AGREEMENT INTEREST RATE WARRANT AGREEMENT, dated as of ________ __, 199__ (as modified, amended or supplemented, this "Agreement"), between BANKERS TRUST NEW YORK CORPORATION, a corporation organized and existing under the laws of the State of New York (the "Corporation"), and [NAME OF WARRANT AGENT], a [banking association] [corporation] organized and existing under the laws of ______________, as Warrant Agent (the "Warrant Agent"). W I T N E S S E T H: WHEREAS, the Corporation proposes to sell [put] [call] warrants (each, a "Warrant") representing the right to receive from the Corporation an amount in [U.S. dollars (specify other currency if applicable)] to be determined by reference to [decreases] [increases] in the [[yield] [closing price] of [(insert name or names of one or more specified debt instruments issued either by the United States government or by a foreign government)] (the "Debt Instrument")] [(insert name of interest rate or interest rate swap rate) established from time to time by (insert name of specified financial institution or institutions) (the "Rate")]; and WHEREAS, the Corporation desires the Warrant Agent to act on behalf of the Corporation, and the Warrant Agent is willing so to act, in connection with the issuance, transfer, exchange, exercise and cancellation of the Warrants, and the Corporation desires to set forth herein, among other things, the provisions of the Warrants and the terms and conditions under which they may be issued, transferred, exchanged, exercised and canceled; NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES Section 1.01. The Warrants; Issuance of Warrants; Book-Entry Procedures; Successor Depository. (a) Each Warrant shall represent the right, subject to the provisions contained herein and therein, to receive the Cash Settlement Value (as defined in Section 2.02(g)) [or the Cancellation Amount (as defined in Section 2.04(b)), as the case may be,] of such Warrant. Such Cash Settlement Value [or Cancellation Amount, as the case may be,] shall be payable in [U.S. dollars (specify other currency if applicable)]. In no event shall any registered holder of a Warrant (each, a "Holder") or any Owner (as defined in Section 1.01(c)) be entitled to receive any interest on any Cash Settlement Value [or Cancellation Amount, as the case may be], and the Warrants shall not entitle the Holders or Owners thereof to any of the rights of the holder of any [Debt Instrument] [instrument underlying such Warrants] or any other securities. No Warrant shall require or entitle the Holder or Owner thereof to sell, deliver, purchase or take delivery of any [Debt Instrument] [instrument underlying such Warrants] or any other securities to or from the Corporation, nor shall the Corporation be under any obligation to purchase or take delivery of, or sell or deliver, any such securities to or from the Holders or Owners thereof. (b) The Warrants shall constitute direct, unconditional and unsecured obligations of the Corporation. (c) The Warrants shall initially be issued in book-entry form and represented by one or more global certificates (each, a "Global Warrant Certificate"). Owners of beneficial interests in a Global Warrant Certificate (each, an "Owner") shall not be entitled to receive definitive certificates evidencing the Warrants; provided, however, that the Corporation shall issue Warrants in definitive form (each, a "Definitive Warrant Certificate", and with the Global Warrant Certificates, the "Warrant Certificates") in exchange for a Global Warrant Certificate if (i) the Depository (as defined in Section 1.01(d)) has notified the Corporation that it is unwilling or unable to continue as Depository for such Global Warrant Certificate or if at any time it has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, at a time when it is required to be so registered in order to act as Depository, and a successor Depository is not appointed by the Corporation within 90 days, (ii) the Corporation at any time shall determine to have the Warrants represented by Definitive Warrant Certificates and shall execute and deliver to the Warrant Agent a written order signed in the name of the Corporation by its Chairman of the Board, its Vice Chairman, its President or a Vice President, -2- and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary (each such order, a "Corporation Order") stating that the Corporation wishes to issue Warrants in definitive form in exchange for such Global Warrant Certificate, or (iii) there shall have occurred and be continuing a default in the payment of the Cash Settlement Amount [or Cancellation Amount, as the case may be,] with respect to the Warrants. In any such instance, and in accordance with the provisions of this Agreement, each Owner shall be entitled to have registered in its name the number of Warrants in definitive form equivalent to such Owner's beneficial interest in such Global Warrant Certificate and shall be entitled to physical delivery of Definitive Warrant Certificates representing such Warrants by the Depository Participant or Indirect Participant (each as defined in Section 1.01(d)) through which such Owner's beneficial interest is reflected. (d) Each Global Warrant Certificate shall initially be registered in the name of, and the Holder of each Warrant represented by such Global Warrant Certificate shall be, [The Depository Trust Company] or its agent (the "Depository", which term shall include any nominee of the Depository and any successor depository selected by the Corporation as provided in Section 1.01(e)), and shall be deposited with the Depository or its agent for credit to the accounts of the Depository Participants as shown on the records of the Depository from time to time. The Warrant holdings of Depository Participants shall be recorded on the books of the Depository. The Warrant holdings of Indirect Participants and of Owners who are customers of Depository Participants shall be reflected on the books and records of such Depository Participants and shall not be known to the Warrant Agent, the Corporation or the Depository. The Warrant holdings of Owners who are customers of Indirect Participants shall be reflected on the books and records of such Indirect Participants and shall not be known to the Warrant Agent, the Corporation, the Depository Participants or the Depository. Neither the Corporation nor the Warrant Agent shall have any responsibility or liability for any aspect of the records relating to beneficial ownership interests in a Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to any such beneficial ownership interest. As used herein, the term "Depository Participant" shall include any participant in the Depository's system and, for purposes of this Agreement, shall also mean any participant in the book-entry system of any successor Depository. As used herein, the term "Indirect Participant" shall include any other bank, securities dealer, trust company or other Person (as defined below) that clears or maintains a custodial -3- relationship with a Depository Participant, either directly or indirectly. As used herein, the term "Person" shall include any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. (e) The Corporation may from time to time select a new Person to act as Depository and, if such selection is made, the Corporation shall promptly give the Warrant Agent and the existing Depository notice to such effect identifying the new Depository. As promptly as practicable thereafter, the Depository shall deliver each Global Warrant Certificate then held by it to the Warrant Agent, and the Warrant Agent shall register the transfer of such Global Warrant Certificate to the new Depository as provided in Section 1.04. Appropriate changes may be made in each Global Warrant Certificate, and in the notice of exercise and the related notices delivered in connection with an exercise or deemed exercise of Warrants to reflect the selection of the new Depository. Section 1.02. Form; Denominations; Execution, Countersignature, Delivery and Dating of Global Warrant Certificates. (a) At any time and from time to time after the execution and delivery of this Agreement, the Corporation may deliver one or more Global Warrant Certificates, each representing any integral number of Warrants [not exceeding ________________ Warrants originally issued,] executed by the Corporation as set forth in Section 1.02(b), to the Warrant Agent for countersignature, together with a Corporation Order for the countersignature and delivery of such Warrants, and the Warrant Agent shall manually countersign and deliver such Warrants in accordance with such Corporation Order. During such time as Warrants shall be represented by Global Warrant Certificates, the Corporation may issue additional Warrants in accordance with the terms of this Agreement either by issuing an additional Global Warrant Certificate or by issuing a new Global Warrant Certificate in exchange for the existing Global Warrant Certificate, provided that any such exchange shall conform to the requirements set forth in Section 1.04(f). (b) Each Global Warrant Certificate, whenever issued, shall be in registered form substantially in the form of Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement. Each Global Warrant Certificate shall be printed, lithographed, typewritten, mimeographed or engraved on steel engraved borders or otherwise reproduced in any other manner as may -4- be approved by the officers executing the same (such execution to be conclusive evidence of such approval) and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the same may approve (such execution to be conclusive evidence of such approval) and that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any securities exchange on which the Warrants may be listed, or of the Depository, or to conform to usage. Each Global Warrant Certificate shall be signed on behalf of the Corporation by its Chairman of the Board, its Vice Chairman, its President or one of its Vice Presidents, under its corporate seal reproduced thereon and attested by its Secretary or one of its Assistant Secretaries. The signature of any such officer on any Global Warrant Certificate may be either manual or facsimile. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Global Warrant Certificate that has been duly countersigned and delivered by the Warrant Agent. (c) No Global Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, unless such Global Warrant Certificate has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Global Warrant Certificate executed by the Corporation shall be conclusive evidence, and the only evidence, that such Global Warrant Certificate so countersigned has been duly issued hereunder. (d) Any Global Warrant Certificate bearing the manual or facsimile signatures of individuals who were at the time of such signature the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the countersignature and delivery of such Global Warrant Certificate or did not hold such offices at the date of such Global Warrant Certificate. (e) Each Global Warrant Certificate shall be dated the date of its countersignature. Section 1.03. Definitive Warrant Certificates. (a) Any Definitive Warrant Certificate issued in accordance with Section 1.01(c), whenever issued, shall be in registered form substantially in the form of Exhibit A, with -5- such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or necessary or desirable for individual Definitive Warrant Certificates, provided that each such Definitive Warrant Certificate shall have imprinted on the reverse thereof the Exercise Notice substantially in the form of Exhibit B-2. Each Definitive Warrant Certificate may represent any integral number of Warrants [not exceeding ________________ Warrants originally issued], shall be printed, lithographed, typewritten, mimeographed or engraved on steel engraved borders or otherwise reproduced in any other manner as may be approved by the officers executing the same (such execution to be conclusive evidence of such approval), and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the same may approve (such execution to be conclusive evidence of such approval) and that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any securities exchange on which the Warrants may be listed, or of the Depository, or to conform to usage. Each Definitive Warrant Certificate shall be signed on behalf of the Corporation upon the same conditions, in substantially the same manner and with the same effect as set forth in Section 1.02 with respect to Global Warrant Certificates. (b) Each Definitive Warrant Certificate, when so signed on behalf of the Corporation, shall be delivered to the Warrant Agent together with a Corporation Order for the countersignature and delivery of such Warrants, and the Warrant Agent shall manually countersign and deliver such Warrants in accordance with such Corporation Order upon the same conditions, in substantially the same manner and with the same effect as set forth in Section 1.02 with respect to Global Warrant Certificates. Each Definitive Warrant Certificate shall be dated the date of its countersignature. (c) No Definitive Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, unless such Definitive Warrant Certificate has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Definitive Warrant Certificate executed by the Corporation shall be conclusive evidence, and the only evidence, that such Definitive Warrant Certificate so countersigned has been duly issued hereunder. -6- (d) Any Definitive Warrant Certificate bearing the manual or facsimile signatures of individuals who were at the time of such signature the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the countersignature and delivery of such Definitive Warrant Certificate or did not hold such offices at the date of such Definitive Warrant Certificate. (e) Definitive Warrant Certificates delivered in exchange for a Global Warrant Certificate shall be registered in such names and addresses (including tax identification numbers) and in such denominations as shall be requested in writing by the Depository or its nominee in whose name such Global Warrant Certificate is registered, upon written certification to the Corporation and the Warrant Agent, in form satisfactory to each of them, of the existing beneficial ownership interests in such Global Warrant Certificate. (f) The Holder of any Warrant represented by a Definitive Warrant Certificate shall be the Person in whose name such Definitive Warrant Certificate is registered in the Warrant Register (as defined in Section 1.04) at such time. Section 1.04. Maintenance of Warrant Register; Registration of Transfers and Exchanges of Global Warrant Certificates. (a) The Corporation shall cause to be kept at the Warrant Agent Office (as defined in Section 1.04(b)) a register (the "Warrant Register"), which may be maintained electronically and in which, subject to such reasonable regulations as it may prescribe, the Corporation shall provide for the registration and registration of transfer, exchange, exercise and cancellation of Warrants. The Warrant Agent is hereby appointed "Warrant Registrar" for the purpose of registering Warrant Certificates and transfers and exchanges of Warrant Certificates as herein provided. (b) A Warrant Certificate may be transferred at the option of the Holder thereof upon surrender of such Warrant Certificate at the office or agency of the Warrant Agent maintained for the purpose of transferring, exchanging, exercising and canceling the Warrants, which shall be south of Chambers Street in the Borough of Manhattan, The City of New York (the "Warrant Agent Office"), and which is, on the date of this Agreement, _______________________, New York, New York, _____, Attention: [Corporate Trust Department], or at the office of any successor Warrant Agent as provided in Article IV. -7- Upon any such registration of transfer, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, in the name of the designated transferee a new Global Warrant Certificate or Definitive Warrant Certificate, as the case may be, of like tenor, of any authorized denomination and representing in the aggregate a like number of unexercised Warrants as evidenced by such Warrant Certificate at the time of such registration of transfer, and bearing a number not contemporaneously outstanding. (c) A Warrant Certificate may be exchanged at the option of the Holder thereof for other Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, of like tenor, of any authorized denomination and representing in the aggregate a like number of unexercised Warrants, upon surrender of such Warrant Certificate at the Warrant Agent Office. Whenever any Warrant Certificate is so surrendered for exchange, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, the Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, that the Holder of such exchanged Warrant Certificate is entitled to receive and bearing a number not contemporaneously outstanding. (d) Any Warrant Certificate presented or surrendered for registration of transfer or for exchange shall be duly endorsed or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Corporation, duly signed by the registered Holder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a bank or trust company, by a broker or dealer that is a member of the National Association of Securities Dealers, Inc. or by a member of a national securities exchange. (e) Except as otherwise provided herein or in a Global Warrant Certificate, the Warrant Agent shall register the transfer of such Global Warrant Certificate on the records of the Warrant Agent only to the Depository, to a nominee of the Depository, to a successor Depository or to a nominee of the successor Depository. (f) A Global Warrant Certificate may be exchanged for a new Global Warrant Certificate to reflect the issuance by the Corporation of additional Warrants[; provided, however, that in no event shall the number of Warrants represented by any Global Warrant Certificate exceed -8- ___________________ originally issued]. To effect such an exchange, the Corporation shall deliver to the Warrant Agent a new Global Warrant Certificate duly executed on behalf of the Corporation as provided in Section 1.02, together with a Corporation Order for the countersignature and delivery of such Warrants. The Warrant Agent shall countersign such new Global Warrant Certificate as provided in Section 1.02 and in accordance with such Corporation Order, and shall deliver such new Global Warrant Certificate to the Depository in exchange for, and upon receipt of, the Global Warrant Certificate then held by the Depository. The Warrant Agent shall cancel the Global Warrant Certificate delivered to it by the Depository and return the canceled Global Warrant Certificate to the Corporation. (g) All Warrant Certificates issued upon any registration of transfer or exchange of Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, shall be valid obligations of the Corporation, evidencing the same obligations of the Corporation and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered upon such registration of transfer or exchange. The Warrant Agent shall not be required to effect any exchange or transfer that would result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. (h) No service charge shall be made for any registration of transfer or exchange of Warrant Certificates, but the Corporation may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such transfer or exchange. Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. (a) If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Corporation shall execute, and the Warrant Agent shall countersign and deliver in exchange therefor, as provided in Section 1.02 or 1.03, as the case may be, a new Warrant Certificate of like tenor representing a like number of unexercised Warrants and bearing a number not contemporaneously outstanding. (b) If there shall be delivered by a Holder of a Warrant Certificate to the Corporation and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate, (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, and (iii) funds -9- sufficient to cover any cost or expense to the Corporation (including any fees charged by the Warrant Agent) relating to the issuance of a new Warrant Certificate, then, in the absence of notice to the Corporation or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Corporation shall execute, and the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or 1.03, as the case may be, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor representing a like number of unexercised Warrants and bearing a number not contemporaneously outstanding. (c) If the Warrants evidenced by any such mutilated, destroyed, lost or stolen Warrant Certificate have been exercised, or have been or are about to be deemed to be exercised, the Corporation in its discretion may, instead of issuing a new Warrant Certificate, treat the same as if it had received written irrevocable notice of exercise in good form in respect thereof, as provided herein. (d) Upon the issuance of any new Warrant Certificate under this Section, the Corporation may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) connected therewith. (e) Every new Warrant Certificate issued pursuant to this Section 1.05 in lieu of any mutilated, destroyed, lost or stolen Warrant Certificate shall constitute an original additional contractual obligation of the Corporation, whether or not the mutilated, destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly issued hereunder. (f) The provisions of this Section 1.05 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Warrant Certificates. Section 1.06. Cancellation of Warrants. (a) If the Corporation shall purchase or otherwise acquire Warrants represented by a Global Warrant Certificate, such Warrants may, at the option of the Corporation and upon notification to the Warrant Agent, be surrendered free through a Depository Participant for credit to the Warrant Account (as -10- defined in Section 2.01(b)) and if so credited, the Warrant Agent shall promptly note the cancellation of such Warrants by notation on the records of the Warrant Agent and on the Warrant Register. (b) When all of the Warrants represented by any Global Warrant Certificate have been exercised by the Owner thereof, automatically exercised or otherwise canceled, and upon receipt of the same by the Warrant Agent, the Warrant Agent shall promptly cancel such Global Warrant Certificate. (c) The Corporation may at any time deliver to the Warrant Agent for cancellation any Definitive Warrant Certificates previously countersigned and delivered hereunder that the Corporation may have acquired in any manner whatsoever, and the Warrant Agent shall promptly cancel all Definitive Warrant Certificates so delivered. (d) All Warrant Certificates surrendered for exercise, registration of transfer or exchange or cancellation, if surrendered to any Person other than the Warrant Agent, shall be delivered to the Warrant Agent, and the Warrant Agent shall promptly cancel all such Warrant Certificates and all other Warrant Certificates surrendered to it for exercise, registration of transfer or exchange or cancellation. (e) No Warrant Certificate shall be countersigned in lieu of or in exchange for any Warrant Certificate canceled as provided in this Section 1.06 except as expressly permitted by this Agreement. All canceled Warrant Certificates held by the Warrant Agent shall be destroyed by it unless by written order the Corporation requests their return to it. ARTICLE II [EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS Section 2.01. Duration of Warrants; Method of Exercise; Minimum [and Maximum] Exercise Amounts; Notice of Exercise. (a) Subject to the limitations described herein, each Warrant may be exercised in whole but not in part on any New York Business Day (as defined in Section 2.01(f)) from [its date of issuance (specify other date if applicable)] until [3:00 P.M.], New York City time, on the earlie[st] of (i) [______________ (specify date upon which right to exercise Warrants expires)] or, if such date is not a New York Business Day, on the next succeeding New York Business Day (the "Expiration Date"), [or] (ii) the date of -11- automatic exercise as provided in Section 2.03 [or (iii) the date of cancellation as provided in Section 2.04][; provided that the Corporation may temporarily suspend the right of the Holders to exercise their Warrants pursuant to the provisions of Section 2.08]. [No exercise price shall be payable by any Holder or Owner in connection with the exercise of any Warrant.] [The exercise price for each Warrant shall be $_____ and shall be payable [in U.S. dollars (specify other currency if applicable)] (the "Exercise Price").] (b) Except in the case of automatic exercise, each Warrant may be exercised by: (i) in the case of any Warrant represented by a Global Warrant Certificate (each, a "Book-Entry Warrant"), (A) transfer of such Warrant on the records of the Depository free to the Warrant Agent's Depository Participant account (entitled ____________________), or such other account of the Warrant Agent at the Depository as the Warrant Agent shall specify (the "Warrant Account"), [and] (B) delivery to the Warrant Agent as provided in Section 2.01(d)(i)(C) of written notice (an "Exercise Notice") duly completed and executed by a Depository Participant acting on behalf of the Owner of such Warrant [and (C) payment of the Exercise Price [in U.S. dollars (specify other currency if applicable)] [in cash or by cashier's check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] payable to the account of the Corporation]; and (ii) in the case of Warrants represented by a Definitive Warrant Certificate (each, a "Certificated Warrant"), (A) surrender of such Definitive Warrant Certificate to the Warrant Agent at the Warrant Agent Office, [and] (B) delivery to the Warrant Agent as provided in Section 2.01(d)(ii)(C) of an Exercise Notice duly completed and executed by the Holder of such Warrant [and (C) payment of the Exercise Price [in U.S. dollars (specify other currency if applicable)] [in cash or by cashier's check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] payable to the account of the Corporation]; provided, however, that each Exercise Notice is subject to rejection by the Warrant Agent as provided herein. -12- (c) Not fewer than [specify minimum exercise amount] [nor more than [specify maximum exercise amount]] Warrants may be exercised by or on behalf of any one Owner or, in the case of Certificated Warrants, any one Holder at any one time, except that no such minimum [or maximum] exercise amount shall apply in the case of (i) the automatic exercise of any Warrants, or (ii) the exercise of any Warrants on the Expiration Date. (d) An Exercise Notice [may be conditioned as set forth in Section 2.02(b), but] shall [otherwise] be unconditional. Each Exercise Notice shall be irrevocable and: (i) in the case of any Book-Entry Warrant, shall (A) be in the form of Exhibit B-1 hereto, [(B) shall include a certification by the Depository Participant submitting such Exercise Notice that the Owners affected by such Exercise Notice are not Interest Rate Country Residents (as defined in Section 2.01(f))] and (C) shall be sent to the Warrant Agent in writing at its address as set forth in such form of Exercise Notice or at such other address as the Warrant Agent may specify from time to time by notice given in accordance with Section 8.05; and (ii) in the case of any Certificated Warrant, shall (A) be in the form of Exhibit B-2 hereto and shall, unless otherwise agreed by the Corporation and the Warrant Agent, be set forth on the reverse of the Definitive Warrant Certificate representing such Certificated Warrant, [(B) shall include a certification by the Holder of such Certificated Warrants that such Holder is not an Interest Rate Country Resident] and (C) shall be sent to the Warrant Agent in writing at its address as set forth in such form of Exercise Notice or at such other address as the Warrant Agent may specify from time to time by notice given in accordance with Section 8.05. (e) Except as provided in Section 2.02(c), the Warrant Agent and the Corporation shall be entitled to rely conclusively on any Exercise Notice received by the Warrant Agent with no duty of inquiry by either of them. (f) As used in this Agreement, "New York Business Day" means any day other than a Saturday or Sunday or a day on which the [New York Stock Exchange or American Stock Exchange (list any other relevant securities exchanges)] is not open for securities trading or banking institutions generally in The City of New York are authorized or required -13- by law or executive order to close; "Interest Rate Country Business Day" means any day other than (i) a Saturday or Sunday or a day on which banking institutions generally in [(specify name of Interest Rate country)] are authorized or required by law or executive order to close or (ii) a day on which the [(list names of relevant exchanges)] are not open for business[; and "Interest Rate Country Resident" means a resident of, or any corporation or other Person organized under the laws of [(specify name of Interest Rate country)], its territories, its possessions or other areas subject to its jurisdiction]. Section 2.02. Exercise of Warrants. (a) Except in the case of automatic exercise as provided in Section 2.03 [or cancellation as provided in Section 2.04] and subject to Section 2.02(c)([ii]) [and 2.02(f)], the exercise date (the "Exercise Date") for a Warrant shall be (i) the New York Business Day on which the Warrant Agent receives delivery of such Warrant to the Warrant Account, in the case of Book-Entry Warrants, or of the Definitive Warrant Certificate representing such Warrant at the Warrant Agent Office, in the case of Certificated Warrants, [and] an Exercise Notice relating to such Warrant in good order [and payment of the Exercise Price in the manner specified in Section 2.01(b)], if such receipt occurs at or prior to [3:00] P.M., New York City time, on such New York Business Day, and (ii) otherwise the New York Business Day next succeeding the day on which the Warrant Agent receives such Warrant[, the Exercise Price] and such Exercise Notice, which next succeeding New York Business Day shall be the day on which such Warrant[, Exercise Price] and Exercise Notice shall be deemed to have been received. If any Exercise Notice[, the related Exercise Price] or the Warrants to which such Exercise Notice relates are received after [3:00] P.M., New York City time, on the Expiration Date, such Exercise Notice shall be void and of no effect and shall be deemed not to have been delivered. Except in the case of automatic exercise as provided in Section 2.03, the "Valuation Date" for a Warrant shall be the first Interest Rate Country Business Day next succeeding the Exercise Date of such Warrant. [The "Designated Exercise Date" for a Warrant shall be the date that, but for the provisions of Section 2.02(f), would be the Exercise Date for such Warrant in accordance with this Section 2.02(a).] [(b) Notwithstanding anything in this Agreement to the contrary, if a Depository Participant, in the case of Book-Entry Warrants, or a Holder, in the case of Certificated Warrants, has specified in its Exercise Notice that such Exercise Notice is conditional (a "Conditional Exercise Notice"), then such Conditional Exercise Notice -14- shall be void and of no effect, and shall be disregarded for all purposes of this Agreement, if [Describe the terms upon which the Exercise Notice may be conditional, which may be as follows: the Spot Amount (as defined in Section 2.02(g)) on the day that, but for the provisions of this Section 2.02(b), would be the Valuation Date for such Warrants is more than __________ [above] [below] the Spot Amount on the [Designated] Exercise Date of such Warrants (or, if the [Designated] Exercise Date is not an Interest Rate Country Business Day, on the immediately preceding Interest Rate Country Business Day) (the "Reference Value").] (c) Following receipt of proper delivery of any Warrant[, the Exercise Price] and the Exercise Notice related to such Warrant in accordance with Section 2.01(b), the Warrant Agent shall: [(i) deposit all funds received by it in payment of the Exercise Price of such Warrant to the account of the Corporation maintained with it for such purpose (unless otherwise instructed in writing by the Corporation), and advise the Corporation by telephone and in writing, by facsimile transmission or otherwise, at the end of each day on which any such payment is received of the amount so deposited to its account;] (ii)(A) in the case of a Book-Entry Warrant, promptly determine whether such Exercise Notice has been duly completed and is in proper form and verify that the Person that executed such Exercise Notice is listed as a Depository Participant in the most recent published edition of the Depository's Eligible Corporate Securities Book (or the comparable publication of any successor Depository) and, if such Person is not listed therein, make reasonable efforts to obtain verbal verification from the Depository's Planning Department (telephone number 212-709-1000) (or the comparable department of a successor Depository) that such Person is a Depository Participant; and (B) in the case of a Certificated Warrant, promptly determine whether such Exercise Notice has been duly completed and is in proper form and whether the Definitive Warrant Certificate representing such Warrant is in proper form; (iii)(A) in the case of a Book-Entry Warrant, if the Warrant Agent determines that such Exercise Notice has not been duly completed or is not in proper form, or is unable through the procedures described in clause ([ii])(A) above to verify that the Person that submitted such Exercise Notice is a Depository -15- Participant, then the Warrant Agent shall reject such Exercise Notice and shall send to the Depository Participant that submitted such Exercise Notice a notice of rejection substantially in the form of Exhibit C hereto (a "Rejection Notice") and redeliver the Warrants to which such rejected Exercise Notice relates free through the facilities of the Depository to the account from which they were transferred; and (B) in the case of a Certificated Warrant, if the Warrant Agent determines that such Exercise Notice has not been duly completed or is not in proper form, or that the Definitive Warrant Certificate representing such Warrant is not in proper form, then the Warrant Agent shall reject such Exercise Notice and shall send a Rejection Notice to the Holder of such Warrants and return such Definitive Warrant Certificate to such Holder by first class mail at the expense of the Corporation; (iv) by [5:00 P.M.], New York City time, on the New York Business Day on which such Exercise Notice is received (or deemed to have been received), notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of (A) the total number of Warrants in respect of which Exercise Notices were received (or deemed to have been received) at or prior to [3:00 P.M.], New York City time, on such date [and] (B) the number of such Exercise Notices that were rejected by the Warrant Agent pursuant to clause ([iii]) above and the aggregate number of Warrants to which such rejected Exercise Notices relate[, and (C) the number of such Exercise Notices that were Conditional Exercise Notices and the aggregate number of Warrants to which such Conditional Exercise Notices relate]; [(v) if any of such Exercise Notices are Conditional Exercise Notices, by [5:00 P.M.], New York City time, on the Valuation Date for such Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), (A) determine the Reference Value for such Warrants and the Spot Amount for the date that, but for the provisions of Section 2.02(b), would be the Valuation Date of such Warrants; (B) determine whether any Conditional Exercise Notices have become void pursuant to such Section 2.02(b); and (C) if so, promptly notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) and send a Rejection Notice to the appropriate Depository Participant or Holder, as the case may be, and (x) in -16- the case of Book-Entry Warrants, redeliver such Warrants free through the facilities of the Depository to the account from which they were transferred or (y) in the case of Certificated Warrants, return such Warrants to such Holder by first class mail at the expense of the Corporation.] (vi) by [5:00 P.M.], New York City time, on the Valuation Date for such Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), determine the aggregate number of Warrants covered by Exercise Notices that have not [become void pursuant to Section 2.02(b) or] been rejected pursuant to clause ([iii]) above (the "[Exercised] [Tendered] Warrants"); [(vii) by [5:00 P.M.], New York City time, on the Valuation Date for the Tendered Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), determine pursuant to Section 2.02(f) the number of such Tendered Warrants that shall not be Delayed Exercise Warrants (such Tendered Warrants, the "Exercised Warrants");] (viii) by [5:00 P.M.], New York City time, on the Valuation Date for the Exercised Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), (A) determine the Cash Settlement Value of the Exercised Warrants, (B) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the aggregate Cash Settlement Value with respect to such Exercised Warrants, and (C) send notice of confirmation of exercise in substantially the form of Exhibit D hereto to the appropriate Depository Participant or Holder, as the case may be; and (ix) promptly deliver a copy of each such Exercise Notice to the Corporation and advise the Corporation of such other matters relating to any of the Warrants covered thereby, whether or not they constitute [Tendered Warrants or] Exercised Warrants, as the Corporation shall reasonably request. (d) At or before [3:00 P.M.], New York City time, on the [fifth] New York Business Day following the Valuation Date for any Exercised Warrants (or, if such Valuation Date is not a New York Business Day, on the [sixth] New York Business Day after such Valuation Date) (such date, with respect to such Exercised Warrants, the "Settlement Date"), the Corporation shall make available to the Warrant Agent -17- funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Exercised Warrants. On the New York Business Day on which the Corporation has made adequate funds available to the Warrant Agent at or prior to [3:00 P.M.], New York City time, the Warrant Agent shall make payment available (i) if the Exercised Warrants are Book-Entry Warrants, in the form of a wire transfer to the appropriate Depository Participant after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of the aggregate Cash Settlement Value of the Exercised Warrants exercised by such Depository Participant, and (ii) if the Exercised Warrants are Certificated Warrants, in the form of one or more cashier's checks or official bank checks to each appropriate Holder after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of the Cash Settlement Value of the Exercised Warrants exercised by such Holder. In the case of payments by the Warrant Agent to a Depository Participant, the Warrant Agent shall have no responsibility for the crediting by such Depository Participant of the Cash Settlement Value of such Warrants to the appropriate Owners. (e) (i) The Warrant Agent shall cause its records, which may be kept electronically, to be marked to reflect the reduction in the number of Warrants evidenced by each Global Warrant Certificate by the number of such Warrants for which payment has been made available as provided in Section 2.02(d) promptly after such payment has been made available. In the absence of manifest error, the Warrant Agent's records shall be conclusive evidence as to such matters. (ii) If any Definitive Warrant Certificate shall be surrendered to the Warrant Agent for exercise of fewer than all the Warrants represented thereby, the Corporation shall execute, and the Warrant Agent shall countersign, as provided in Section 1.02 or 1.03, as the case may be, and deliver to the Holder of such Warrants by first class mail at the expense of the Corporation a new Definitive Warrant Certificate of like tenor representing all Warrants remaining unexercised after such exercise and bearing a number not contemporaneously outstanding. [(f) The Corporation may, at its sole option, elect to limit the aggregate number of Warrants for which any Designated Exercise Date shall be the Exercise Date to a number not less than ________________ (the "Maximum Exercisable Number"). -18- (i) The Corporation may, at its sole option, notify the Warrant Agent in writing (including by facsimile transmission) not later than [3:00 P.M.], New York City time, on the Valuation Date with respect to any Tendered Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), that the Corporation has elected to exercise its option under this Section 2.02(f) to limit the number of such Tendered Warrants for which the Exercise Date to which such Valuation Date relates shall be the Designated Exercise Date for such Warrants to a number (the "Elected Maximum Number") not smaller than the Maximum Exercisable Number. If the Warrant Agent shall not have received such notice by such time, none of the following provisions in this Section 2.02(f) shall apply to such Tendered Warrants, such Designated Exercise Date shall be the Exercise Date for such Tendered Warrants, and all of such Tendered Warrants shall be deemed to be "Exercised Warrants" for purposes of this Agreement. (ii) If the Warrant Agent shall have received the notice contemplated by clause (i) above by the time specified in such clause (i), then prior to [5:00 P.M.], New York City time, on such Valuation Date (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), the Warrant Agent shall select by lot from all such Tendered Warrants, subject to clause (iii) below, Tendered Warrants for which the Exercise Date shall be such Designated Exercise Date in an aggregate number equal to the Elected Maximum Number; provided that if, as a result of such selection, any Owner or Holder, as the case may be, would be deemed to have exercised less than [(specify minimum exercise amount)] Warrants, then the Warrant Agent shall first select additional Tendered Warrants of such Owners or Holders so that no such Owner or Holder shall be deemed to have exercised fewer than [(specify minimum exercise amount)] Warrants. Only the Tendered Warrants so selected shall be deemed to be "Exercised Warrants" for purposes of Section 2.02(c). The Tendered Warrants not so selected shall be referred to herein as "Delayed Exercise Warrants" and shall be subject to exercise as provided in clause (iii) below. (iii) For purposes of this Section 2.02, each Delayed Exercise Warrant shall be deemed to have a new Designated Exercise Date on the New York Business Day next succeeding its original Designated Exercise Date, and this Section 2.02 shall apply to such Delayed -19- Exercise Warrants as if one or more Exercise Notices with respect to the Delayed Exercise Warrants had been received by the Warrant Agent prior to [3:00 P.M.], New York City time, on such New York Business Day, provided that (x) any Delayed Exercise Warrant with respect to which any such deemed Designated Exercise Date is on or after the earlier of the Expiration Date and the Delisting Date shall be subject to automatic exercise as provided in Section 2.03[, and (y) the Reference Value for any Delayed Exercise Warrant covered by a Conditional Exercise Notice shall in any event be determined by reference to the original Designated Exercise Date therefor (or, if such date is not an Interest Rate Country Business Day, on the immediately preceding Interest Rate Country Business Day)]; provided, however, that, other than in the case of automatic exercise [or cancellation], if the aggregate number of such Delayed Exercise Warrants, together with any additional Tendered Warrants for which the Designated Exercise Date is such New York Business Day shall again exceed the Maximum Exercisable Number, the provisions of this Section 2.02(f) shall apply, mutatis mutandis, to the exercise of such Delayed Exercise Warrants and such additional Tendered Warrants, provided that such Delayed Exercise Warrants shall be given priority over such additional Tendered Warrants in the selection pursuant to clause (ii) above, and among such Delayed Exercise Warrants, priority in such selections shall be given to Warrants in the order of their original Designated Exercise Dates, with Warrants having the same original Designated Exercise Date being selected by lot as described in clause (ii) above. (iv) In connection with any issuance by the Corporation of additional Warrants under this Agreement, the Corporation shall have the right, but shall not be obligated, to increase the Maximum Exercisable Number.] (g) For purposes of this Agreement: The "Cash Settlement Value" of any Warrant that is exercised (whether exercised automatically or by Exercise Notice) shall mean [_____ (specify fraction)] of the U.S. dollar equivalent (rounded to the nearest dollar) of the amount, if any, by which [(i) the Strike Amount (as defined below) exceeds (ii) the Spot Amount on the Valuation Date with respect to such Exercised Warrant] [(i) the Spot Amount on the Valuation Date with respect to such Exercised Warrant exceeds (ii) the Strike Amount (as defined below)]; provided that if -20- such amount is less than zero, the Cash Settlement Value shall be zero. The "Strike Amount" of a Warrant shall mean [Insert amount or method for determining amount]. The "Spot Amount" on any date shall mean [Insert method for determining amount]. The exchange rate (or manner of calculating such rate) for conversion of the Cash Settlement Value, [the Cancellation Amount,] the Strike Amount, the Spot Amount and/or the value of any [Debt Instrument] [instrument underlying such Warrants], as applicable, into U.S. dollars shall be [(specify such rate or manner of calculating such rate)] and shall be determined by the Warrant Agent. "U.S. dollars", "U.S.$" or "$" are references to the currency of the United States of America. "[Interest Rate currency] or "[_______________]" are references to the currency of [(specify name of Interest Rate country)]. (h) Any notice to be given to the Corporation by the Warrant Agent pursuant to this Section 2.02 or Section 2.03 shall be by telephone (promptly confirmed in writing) or telecopy (receipt to be promptly confirmed by telephone). Section 2.03. Automatic Exercise of Warrants. (a) [Unless previously canceled pursuant to Section 2.04,] all Warrants with respect to which (i) there has been no proper delivery of Warrants to the Warrant Account, in the case of Book-Entry Warrants, or of Definitive Warrant Certificates to the Warrant Agent Office, in the case of Certificated Warrants[, or no delivery of the Exercise Price as provided in Section 2.01(b)] or no valid Exercise Notice has been received by the Warrant Agent at or prior to [3:00 P.M.], New York City time, on the earlier to occur of (A) the Expiration Date for such Warrants and (B) the last New York Business Day prior to the effective date on which the Warrants are delisted from, or permanently suspended from trading on, the __________ Stock Exchange without being accepted for listing on or prior to such New York Business Day on another United States national -21- securities exchange (such New York Business Day, the "Delisting Date"), (ii) the Exercise Date has been postponed pursuant to Section 2.02(f) to a date on or after the earlier of the Expiration Date or the Delisting Date, [or (iii) [list other events causing automatic exercise of Warrants, if applicable]] will be automatically exercised on such Expiration Date or Delisting Date [or on the date on which (specify other events leading to automatic exercise)] (any such date, a "Deemed Exercise Date") without any requirement of notice of exercise to the Warrant Agent. On the Deemed Exercise Date, all the Warrants will be canceled and will represent only a right to receive the Cash Settlement Value upon satisfaction of the requirements set forth in Section 2.03(b). The Valuation Date for such Warrants shall be the first Interest Rate Country Business Day next succeeding such Deemed Exercise Date. (b) On the Valuation Date for the Warrants to be automatically exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), the Warrant Agent shall (i) determine the Cash Settlement Value of such Warrants; (ii) by [5:00 P.M.], New York City time, on such Valuation Date (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the Cash Settlement Value of such Warrants; and (iii) advise the Corporation of such other matters relating to the automatically exercised Warrants as the Corporation shall reasonably request. (c) At or before [3:00 P.M.], New York City time, on the [eighth] New York Business Day following the Valuation Date for any Warrants automatically exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not a New York Business Day, on the [ninth] New York Business Day after such Valuation Date) (such date, with respect to such Warrants, the "Settlement Date"), the Corporation shall make available to the Warrant Agent funds in an amount equal to, and for the payment of, [(y)] the aggregate Cash Settlement Value of such automatically exercised Warrants [minus (y) the aggregate Exercise Price with respect to such Warrants, provided that if such amount is less than zero, no such funds shall be made available]. On the New York Business Day on which the Corporation has -22- made adequate funds available to the Warrant Agent at or prior to [3:00 P.M.], New York City time, the Warrant Agent shall make payment available (i) if the automatically exercised Warrants are Book-Entry Warrants, in the form of a wire transfer to the appropriate Depository Participant after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of [(x)] the aggregate Cash Settlement Value of the Warrants held at the time of automatic exercise by such Depository Participant [minus (y) the aggregate Exercise Price with respect to such Warrants, provided that if such amount is less than zero, then no such payment shall be made], and (ii) if the automatically exercised Warrants are Certificated Warrants, in the form of one or more cashier's checks or official bank checks to each appropriate Holder after [3:00 P.M.], New York City time, but prior to the close of business, on such day, such payment to be in the amount of [(x)] the Cash Settlement Value of the Warrants registered in the name of such Holder on the date of automatic exercise [minus (y) the aggregate Exercise Price with respect to such Warrants, provided that if such amount is less than zero, then no such payment shall be made]; provided, however, that the Warrant Agent shall withhold any such payment in respect of any Warrant until the conditions set forth in Section 2.03(d) have been satisfied with respect to such Warrant. In the case of payments by the Warrant Agent to a Depository Participant, the Warrant Agent shall have no responsibility for the crediting by such Depository Participant of the Cash Settlement Value of such Warrants to the appropriate Owners. (d) The Warrant Agent shall withhold payment of the Cash Settlement Value with respect to any automatically exercised Warrant until: (i) if such Warrant is a Book-Entry Warrant, [(A)] such Warrant is delivered on the records of the Depository free to the Warrant Account [and (B) the Warrant Agent receives at the Warrant Agent Office a written certification substantially in the form of Exhibit E-1 hereto, dated no earlier than the Deemed Exercise Date, executed by a Depository Participant acting on behalf of the Owner of such Warrant, to the effect that such Owner is not an Interest Rate Country Resident]; and (ii) if such Warrant is a Certificated Warrant, [(A)] the Definitive Warrant Certificate representing such Warrant is surrendered to the Warrant Agent at the Warrant Agent Office, [and (B) the Warrant Agent receives at the Warrant Agent Office a certification in -23- the form of Exhibit E-2 hereto, dated no earlier than the Deemed Expiration Date, to the effect that the Holder of such Definitive Warrant Certificate is not an Interest Rate Country Resident]. (e) When payment has been made in respect of all Warrants represented by a Warrant Certificate, the Warrant Agent shall, promptly upon receipt of such Warrant Certificate, cancel such Warrant Certificate and deliver it to the Corporation. [Section 2.04. Cancellation of Warrants. (a) [insert conditions and effects of cancellation, if applicable].] (b) [The "Cancellation Amount" of a Warrant shall mean [Insert amount or method for determining amount].] [Section 2.05. Discontinuance or Modification of [Debt Instrument] [Rate]. [(Insert appropriate provisions)].] Section 2.06. Designation of Agent for Receipt of Notice. The Corporation may from time to time designate in writing to the Warrant Agent a single designee for receipt of all notices required to be given by the Warrant Agent to the Corporation pursuant to this Article II and all such notices thereafter shall be given in the manner herein provided by the Warrant Agent to such designee and each such notice shall be as effective as if given directly to the Corporation. [Section 2.07. Extraordinary Events. [(Specify conditions and effects of extraordinary events, if applicable)].] [Section 2.08. Temporary Suspension of the Right to Exercise the Warrants. [(Specify conditions and method of temporary suspension of right to exercise, if applicable)].] ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS Section 3.01. Treatment of Holders. (a) The Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and treat the Person in whose name each Global Warrant Certificate shall -24- be registered in the records of the Warrant Agent as the absolute Holder of all right, title and interest in such Global Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for all purposes hereunder and as the Person entitled to exercise the rights represented by the Warrants evidenced thereby, whether or not such Warrants shall be exercised or deemed to be exercised, and neither the Corporation nor the Warrant Agent, nor any agent of the Corporation or the Warrant Agent shall be affected by any notice to the contrary, except that the Warrant Agent and the Corporation shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated by Article II of this Agreement. (b) Prior to due presentment of a Definitive Warrant Certificate for registration of transfer, the Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may treat the Person in whose name such Definitive Warrant Certificate is registered as the absolute Holder of all right, title and interest in such Definitive Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for all purposes hereunder and as the Person entitled to exercise the rights represented by the Warrants evidenced thereby, whether or not such Warrants shall be exercised or deemed to be exercised, and neither the Corporation, the Warrant Agent nor any agent of the Corporation or the Warrant Agent shall be affected by notice to the contrary. Section 3.02. Holder or Owner of Warrant May Enforce Rights. Notwithstanding any other provision of this Agreement, any Owner, in the case of Book-Entry Warrants, and any Holder, in the case of Certificated Warrants, without the consent of the Warrant Agent or the Owner or Holder of any other Warrant, may, in and for such Owner's or Holder's own behalf, and for such Owner's or Holder's own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Corporation suitable to enforce, or otherwise in respect of, such Owner's or Holder's right to exercise, and to receive payment for, such Owner's or Holder's Warrants as provided in such Warrants and in this Agreement. ARTICLE IV CONCERNING THE WARRANT AGENT Section 4.01. Warrant Agent. The Corporation hereby appoints [name of Warrant Agent] as the Warrant Agent -25- of the Corporation in respect of the Warrants upon the terms and subject to the conditions set forth herein and in the Warrants, and [name of Warrant Agent] hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it herein and in the Warrants and such further powers and authority acceptable to it to act on behalf of the Corporation as the Corporation may hereafter grant to or confer upon it. All of the terms and provisions with respect to such powers and authority contained in the Warrants are subject to and governed by the terms and provisions hereof. Section 4.02. Certain Duties of the Warrant Agent. (a) Except during the continuation of a default in the performance by the Corporation of its obligations in respect of the Warrants, the Warrant Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Warrant Agent. (b) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Section 4.03. Conditions of Warrant Agent's Obligations. The Warrant Agent accepts its obligations set forth herein upon and subject to the terms and conditions hereof and of the Warrants, including the following, to all of which the Corporation agrees and to all of which the rights hereunder of the Owners and Holders from time to time of the Warrants shall be subject: (a) The Corporation agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Corporation for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses, disbursements and advances (including reasonable attorneys' fees and expenses and reasonable compensation, expenses and disbursements of its agents) incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Corporation also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense -26- (including reasonable attorneys' fees and expenses) incurred without negligence, bad faith or breach of this Agreement on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder or with respect to the Warrants, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Corporation under this subsection (a) shall survive the exercise of the Warrants and the resignation or removal of the Warrant Agent. (b) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or thing suffered by it in reliance upon any Warrant, resolution, opinion, report, request, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties, provided that any request or direction of the Corporation shall be sufficiently evidenced by a Corporation Order delivered to the Warrant Agent, and any resolution of the Board of Directors shall be sufficiently evidenced by a copy of the resolution certified by the Secretary or an Assistant Secretary to have been duly adopted by the Board of Directors of the Corporation, or by a committee of such Board of Directors or an officer of the Corporation appointed by the Board of Directors of the Corporation for such purpose, and to be in full force and effect on the date of such certification and delivered to the Warrant Agent (any such resolution, a "Board Resolution"). (c) The Warrant Agent may consult with counsel satisfactory to it, which may include counsel to the Corporation, and the written opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such written opinion. (d) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any Corporation Order or Board Resolution, but the Warrant Agent, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. -27- (e) The Warrant Agent, and any of its officers, directors and employees, in its individual or any other capacity, may become the Owner or Holder of, or acquire any interest in, any Warrants or other obligations of the Corporation, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Corporation and may act on, or as depositary, trustee or agent for, any committee or body of Owners or Holders of Warrants or other obligations of the Corporation as freely as if it were not the Warrant Agent hereunder. (f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrants except as otherwise agreed with the Corporation, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. (g) The Warrant Agent shall not be under any liability with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrants or the Warrant Certificates (except the countersignature thereof). (h) The recitals contained herein and in the Warrants (except as to the Warrant Agent's countersignature thereon) shall be taken as the statements of the Corporation, and the Warrant Agent assumes no responsibility for the correctness thereof. (i) The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Corporation of any of the Warrant Certificates countersigned by the Warrant Agent and delivered by it to the Corporation pursuant to this Agreement or for the application by the Corporation of any proceeds. (j) The Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its covenants or agreements contained herein or in the Warrants or in the case of the receipt of any written demand from an Owner or Holder of a Warrant with respect to such default, including, without limitation, any duty or responsibility to initiate or attempt to initiate any -28- proceedings at law or otherwise or, except as provided in Section 8.03, to make any demand upon the Corporation. (k) In acting under this Agreement and in connection with the Warrants, the Warrant Agent is acting solely as the agent of the Corporation and does not assume any obligation or relationship of agency or trust for or with any of the Owners or Holders of the Warrants. Section 4.04. Compliance With Applicable Laws. The Warrant Agent agrees to comply with all applicable federal and state laws imposing obligations on it in respect of the services rendered by it under this Agreement and in connection with the Warrants, including (but not limited to) the provisions of United States federal income tax laws regarding information reporting and backup withholding. The Warrant Agent expressly assumes all liability for its failure to comply with any such laws imposing obligations on it, including (but not limited to) any liability for its failure to comply with any applicable provisions of United States federal income tax laws regarding information reporting and backup withholding. Section 4.05. Corporate Warrant Agent Required; Eligibility. The Corporation agrees, for the benefit of the Owners or Holders from time to time of the Warrants, that there shall at all times be a Warrant Agent hereunder until all of the Warrants have been exercised or are no longer exercisable, which shall be a banking institution organized under the laws of the United States of America or one of the states thereof and having an office or an agent's office south of Chambers Street in the Borough of Manhattan, The City of New York. Section 4.06. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Warrant Agent and no appointment of a successor Warrant Agent pursuant to this Section 4.06 shall become effective until the acceptance of appointment by the successor Warrant Agent under Section 4.07. (b) The Warrant Agent may resign at any time by giving written notice of such resignation to the Corporation specifying such resignation and the date on which it desires such resignation to become effective, provided that, without the consent of the Corporation, such date shall not be less than 90 days after the date on which such notice is given. If an instrument of acceptance by a successor Warrant Agent shall not have been delivered to the Warrant Agent within 90 -29- days after the giving of such notice of resignation, the resigning Warrant Agent may petition any court of competent jurisdiction for the appointment of a successor Warrant Agent with respect to the Warrants. (c) The Corporation may remove the Warrant Agent at any time by giving written notice thereof to the Warrant Agent specifying such removal and the date on which the Corporation desires such removal to become effective. (d) If at any time: (i) the Warrant Agent shall cease to be eligible to act as such under Section 4.05 and shall fail to resign after the Corporation shall have delivered a written request therefor, or (ii) the Warrant Agent shall become incapable of acting as such, or shall be adjudged a bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or a receiver or custodian of it or of all or any substantial part of its property shall be appointed, or an order of any court shall be entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or similar law, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs, for the purpose of rehabilitation, conservation or liquidation, or (iii) the Corporation shall elect to remove the Warrant Agent, provided that no default shall then exist with respect to the Warrants, then in any such case, the Corporation by a Board Resolution may remove the Warrant Agent with respect to all the Warrants. (e) If the Warrant Agent shall resign or be removed, or if a vacancy shall occur in the office of the Warrant Agent for any other reason, the Corporation, by a Board Resolution, shall promptly appoint a successor Warrant Agent with respect to the Warrants, it being understood that at any time there shall be only one Warrant Agent with respect to the Warrants. -30- (f) The Corporation shall give notice to the Owners or Holders of the Warrants of each resignation and each removal of the Warrant Agent and each appointment of a successor Warrant Agent with respect to the Warrants in accordance with Section 8.05. Each such notice shall include the name of the successor Warrant Agent and the address of its Warrant Agent Office. Section 4.07. Acceptance of Appointment by Successor. (a) If a successor Warrant Agent is appointed hereunder, such successor Warrant Agent so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Warrant Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Warrant Agent shall become effective and such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Warrant Agent; provided, however, that on the request of the Corporation or the successor Warrant Agent, such retiring Warrant Agent shall, upon payment of its charges and disbursements then unpaid, execute and deliver an instrument transferring to such successor Warrant Agent all the rights and powers of the retiring Warrant Agent and shall duly assign, transfer and deliver to such successor Warrant Agent all property and money held by such retiring Warrant Agent hereunder. (b) Upon the request of any such successor Warrant Agent, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Warrant Agent all such rights and powers referred to in Section 4.07(a). (c) No successor Warrant Agent shall accept its appointment, and no such acceptance shall be effective, unless at the time of such acceptance such successor Warrant Agent shall be qualified and eligible under this Article IV. Section 4.08. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all of the business of the Warrant Agent, shall be the successor of the Warrant Agent hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation shall be otherwise qualified and eligible under this Article IV. If any Warrant Certificates shall have been countersigned, but not delivered, by the Warrant -31- Agent then in office, any successor by merger, conversion or consolidation to such countersigning Warrant Agent may adopt such countersignature and deliver the Warrant Certificates so countersigned with the same effect as if such successor Warrant Agent had itself countersigned such Warrant Certificates. ARTICLE V CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE Section 5.01. Consolidations and Mergers of the Corporation and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. (a) The Corporation may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided that, in any such case, (i) either the Corporation shall be the continuing corporation, or the successor corporation shall be a corporation organized and existing under the laws of the United States of America or a state thereof and such successor corporation shall expressly assume, by Supplemental Agreement (as defined in Section 6.01(a)) satisfactory to the Warrant Agent and executed and delivered to the Warrant Agent by such corporation, the due and punctual payment of the Cash Settlement Value [or Cancellation Amount, as the case may be,] with respect to all unexercised Warrants, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Agreement to be performed by the Corporation, and (ii) the Corporation or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale, lease or conveyance, be in default in the performance of any such covenant or condition. In case of any such consolidation, merger, sale, lease or conveyance and upon such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Corporation, with the same effect as if it had been named herein as such, and the predecessor Corporation, except in the event of a lease, shall be relieved of any further obligation hereunder or under the Warrants. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Corporation, new Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, representing Warrants not theretofore exercised, in exchange and substitution for the Global Warrant Certificates and Definitive Warrant Certificates theretofore issued; and upon the order of such successor corporation, instead of the Corporation, and -32- subject to all the terms, conditions and limitations in this Agreement prescribed, the Warrant Agent shall countersign and shall deliver the new Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, that such successor corporation shall have caused to be signed and delivered to the Warrant Agent for countersignature. Such Global Warrant Certificates or Definitive Warrant Certificates, as the case may be, shall in all respects have the same legal rank and benefit under this Agreement as the Warrant Certificates theretofore issued in accordance with the terms of this Agreement as though such new Warrant Certificates had been issued at the date of issue of the Warrant Certificates for which they are exchanged. In case of any such consolidation, merger, sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the new Warrant Certificates as may be appropriate. (b) The Warrant Agent may receive a written opinion of counsel (who may be an employee of the Corporation or other counsel acceptable to the Warrant Agent) (an "Opinion of Counsel") as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption, complies with the provisions of this Article V. ARTICLE VI SUPPLEMENTAL AGREEMENTS Section 6.01. Amendment of Interest Rate Warrant Agreement. (a) This Agreement and the Warrants may be amended by the Corporation, when authorized by a Board Resolution, and the Warrant Agent (which amendment shall take the form of a supplemental interest rate warrant agreement) (each, a "Supplemental Agreement")), without the consent of the Owners or Holders of the Warrants, for the purpose of: (i) curing any ambiguity or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein, or of making any other provisions with respect to matters or questions arising under this Agreement that shall not be inconsistent with the provisions of this Agreement or the Warrants; or (ii) evidencing the succession of another corporation to the Corporation and the assumption by any such successor of the covenants of the Corporation -33- contained herein and in the Warrants in accordance with Article V; or (iii) appointing a successor Depository in accordance with Section 1.01(e); or (iv) evidencing and providing for the acceptance of appointment hereunder by a successor Warrant Agent in accordance with Section 4.07; or (v) adding to the covenants of the Corporation for the benefit of the Owners or Holders of the Warrants or surrendering any right or power herein conferred upon the Corporation; or (vi) issuing Warrants in the form of Definitive Warrant Certificates in accordance with Section 1.01(c); or (vii) amending this Agreement and the Warrants in any manner that the Corporation may deem to be necessary or desirable and that will not materially and adversely affect the interests of the Owners or Holders of the Warrants. (b) The Corporation and the Warrant Agent may amend this Agreement and the Warrants (which amendment shall take the form of a Supplemental Agreement), with the consent of the Owners or Holders, as the case may be, of not fewer than 66-2/3% in number of the unexercised Warrants affected by such amendment, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Owners or Holders of the Warrants under this Agreement; provided, however, that, without the consent of each Owner or Holder affected thereby, no such amendment may be made that changes the determination of the Cash Settlement Value [or Cancellation Amount, as the case may be,] of the Warrants (or any aspects of such determination) so as to reduce the amount receivable upon exercise or deemed exercise of the Warrants, shortens the period of time during which the Warrants may be exercised, or otherwise materially and adversely affects the exercise rights of the Owners or Holders, as the case may be, or reduces the number of unexercised Warrants the consent of the Owners or Holders of which is required for amendment of this Agreement or the Warrants. The Corporation and the Warrant Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from the Owners of Warrants represented by a Global Warrant Certificate. Such certification may be provided by -34- Depository Participants acting on behalf of such Owners of Warrants, provided that any such certification is accompanied by a certification from the Depository as to the Global Warrant Certificate holdings of such Depository Participants. Section 6.02. Form of Approval of Supplemental Agreements by Owners or Holders. It shall not be necessary for the Owners or Holders of the Warrants to approve the particular form of any proposed Supplemental Agreement, but it shall be sufficient if the Owners or Holders, as the case may be, shall approve the substance of the Supplemental Agreement. Section 6.03. Effect of Supplemental Agreements. Upon the execution of any Supplemental Agreement under this Article, this Agreement shall be modified in accordance therewith, such Supplemental Agreement shall form a part of this Agreement for all purposes, and, subject to the proviso to the first sentence of Section 6.01(b), every Owner or Holder of Warrants theretofore or thereafter countersigned and delivered hereunder shall be bound thereby. Section 6.04. Reference in Warrants to Supplemental Agreements. Warrants countersigned and delivered after the execution of any Supplemental Agreement pursuant to this Article may, and shall if required by the Warrant Agent, bear a notation in form approved by the Warrant Agent as to any matter provided for in such Supplemental Agreement. If the Corporation shall so determine, new Warrants so modified as to conform, in the opinion of the Warrant Agent and the Corporation, to any such Supplemental Agreement may be prepared and executed by the Corporation and countersigned and delivered by the Warrant Agent in exchange for unexercised Warrants. ARTICLE VII COVENANTS OF THE CORPORATION Section 7.01. Listing of Warrants on National Securities Exchange. (a) The Corporation covenants, for the benefit of the Owners or Holders of the Warrants, as the case may be, that (i) it will seek to obtain the listing of the Warrants on [name of national securities exchange] and (ii) until the Expiration Date, it will not seek the delisting of the Warrants from, or permanent suspension of their trading on, [name of national securities exchange] unless prior to such delisting or suspension the Warrants -35- shall have been listed, and shall be trading, on another national securities exchange. (b) The Corporation shall advise the Warrant Agent of the date of any expected delisting or permanent suspension of trading of the Warrants as soon as is practicable and will immediately inform the Warrant Agent after the Corporation has received notice that such delisting or suspension has occurred, but in no event shall notice of such delisting or suspension be given to the Warrant Agent later than [3:00 P.M.], New York City time, on the fifth New York Business Day preceding the date that such delisting or suspension occurs. (c) The Corporation shall notify the Owners or Holders of the Warrants in accordance with Section 8.05 as promptly as is practicable of any expected delisting or suspension of trading of the Warrants. Section 7.02. Governmental Approvals. The Corporation shall from time to time take all reasonable action necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and the [name of national securities exchange], and shall make all filings under United States federal and state laws, that may be or become requisite in connection with the issuance, sale, trading, transfer, delivery or exercise of the Warrants, each Global Warrant Certificate and each Definitive Warrant Certificate. Section 7.03. Payment of Cash Settlement Value [or Cancellation Amount]. The Corporation agrees, for the benefit of the Owners or Holders of the Warrants, that it will duly and punctually pay the Cash Settlement Value [or Cancellation Amount, as the case may be,] on each Warrant in accordance with the terms of the Warrants and this Agreement, and that the right of each such Owner or Holder, as the case may be, to receive payment of the Cash Settlement Amount [or Cancellation Amount, as the case may be,] on such Warrant when such amount is due and payable shall be absolute and unconditional. Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys. (a) The Corporation shall maintain an office and agency at which the Warrants may be presented or surrendered for exercise or registration of transfer or exchange or cancellation and where notices and demands to or upon the Corporation in respect of the Warrants and this Agreement may be served, which office and agency shall be the same as the location of the Warrant Agent Office, and the Corporation hereby appoints the Warrant Agent as its -36- agent to receive all such presentations, surrenders, notices and demands. (b) The Corporation shall, on or prior to each due date of the Cash Settlement Value [or Cancellation Amount, as the case may be,] on any Warrant, deposit with the Warrant Agent a sum sufficient to pay the Cash Settlement Value [or Cancellation Amount, as the case may be,] so becoming due, such sum to be held for the benefit of the Persons entitled to such Cash Settlement Value [or Cancellation Amount, as the case may be]. (c) Any money deposited with the Warrant Agent for the payment of the Cash Settlement Value [or Cancellation Amount, as the case may be,] on any Warrant and remaining unclaimed for three years after such Cash Settlement Value [or Cancellation Amount, as the case may be,] has become due and payable, shall be paid to the Corporation, at the request of the Corporation, and the Person entitled to such money shall thereafter, as an unsecured general creditor, look only to the Corporation for payment thereof, and all liability of the Warrant Agent with respect to such money shall thereupon cease; provided, however, that the Warrant Agent, before being required to make any such repayment, may at the expense of the Corporation, cause notice to be given in accordance with Section 8.05 to the Person entitled to such money that such money remains unclaimed and that, after a date specified therein, which shall be not less than 30 days from the date of such notice, any unclaimed balance of such money then remaining will be repaid to the Corporation. Section 7.05. Corporate Existence. Subject to Article V, the Corporation shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Corporation shall not be required to preserve any right or franchise if its Board of Directors or a committee thereof shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Corporation and that the loss thereof is not disadvantageous in any material respect to the Owners or Holders of the Warrants, as the case may be. -37- ARTICLE VIII MISCELLANEOUS Section 8.01. Reopening of Issue of Warrants. The Corporation may, from time to time, issue additional Warrants under this Agreement. All Warrants issued hereunder, from and after the date they are issued, shall be identical. Section 8.02. Payment of Taxes. The Corporation shall pay all documentary stamp taxes attributable to the initial issuance of Warrants; provided, however, that the Corporation shall not be required to pay any tax or other governmental charge that may be payable in respect of any transfer involving any beneficial or record interest in or ownership interest of any Warrants. Section 8.03. Notices and Demands to the Corporation and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Corporation by any Owner or Holder pursuant to the provisions of the Warrants, the Warrant Agent shall promptly forward such notice or demand to the Corporation. Section 8.04. Addresses for Notices. Any communications from the Corporation to the Warrant Agent with respect to this Agreement shall be addressed to [name of Warrant Agent], [address] (facsimile: (___) ___-____) (telephone: (___) ___-____), Attention: [Corporate Trust Department]; any communications from the Warrant Agent to the Corporation with respect to this Agreement shall be addressed to Bankers Trust New York Corporation, 280 Park Avenue, New York, New York 10017 (facsimile: (212) ___-____) (telephone: (212) ___-____), Attention: [________________] (or, in either case, at such other address as shall be specified in writing to the other by the Warrant Agent or the Corporation, as the case may be). Section 8.05. Notices to Owners and Holders. The Corporation or the Warrant Agent shall give any notice to be given to the Owners of Book-Entry Warrants by providing the Depository with a form of notice to be distributed by the Depository to Depository Participants in accordance with the customs and practices of the Depository. The Corporation or the Warrant Agent shall give notice to the Holders of Certificated Warrants by mailing written notice by first class mail, postage prepaid, to such Holders as their names and addresses appear in the Warrant Register. -38- SECTION 8.06. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT ISSUED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 8.07. Benefits of Interest Rate Warrant Agreement. Nothing in this Agreement or in the Warrants expressed or implied and nothing that may be inferred from any of the provisions hereof or thereof is intended, or shall be construed, to confer upon, or give to, any Person other than the Corporation, the Warrant Agent and their respective successors and assigns, and the Owners or Holders of the Warrants, as the case may be, any right, remedy or claim under or by reason of this Agreement or the Warrants or of any covenant, condition, stipulation, promise or agreement hereof or thereof, and all covenants, conditions, stipulations, promises and agreements contained in this Agreement or in the Warrants shall be for the sole and exclusive benefit of the Corporation and the Warrant Agent and their respective successors and assigns and of the Owners or Holders of the Warrants, as the case may be. Section 8.08. Successors and Assigns. All covenants and agreements in this Agreement by the Corporation shall bind its successors and assigns, whether so expressed or not. Section 8.09. Interest Rate Warrant Agreement and Warrants Solely Corporate Obligations. No recourse for the payment of the Cash Settlement Value [or Cancellation Amount, as the case may be,] of any Warrant or for any claim based on any Warrant or this Agreement shall be had against any director or officer or stockholder, past, present or future, of the Corporation. Any such claim against any such Person is expressly waived as a condition of, and as consideration for, the execution and delivery of this Agreement and the issue of the Warrants. Section 8.10. Severability. If any provision in this Agreement or in the Warrants shall be invalid, illegal, or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions, or of such provisions in any other jurisdiction, shall not in any way be affected or impaired thereby. Section 8.11. Headings. The descriptive headings of the several Articles and Sections and the Table of Contents of this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. -39- Section 8.12. Counterparts. This Agreement may be executed by the parties hereto in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Section 8.13. Inspection of Interest Rate Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the Warrant Agent Office for inspection by the Owners or Holders of the Warrants, as the case may be, the Depository Participants and the Indirect Participants. In the case of Certificated Warrants, the Warrant Agent may require the Holder of such Warrant to submit such Holder's Warrant Certificate for inspection by the Warrant Agent. -40- IN WITNESS WHEREOF, this Interest Rate Warrant Agreement has been duly executed by the parties hereto as of the day and year first above written. BANKERS TRUST NEW YORK CORPORATION By:___________________________ Name: Title: [SEAL] Attest: ___________________________ [Assistant] Secretary [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: [SEAL] Attest: _____________________________ [Assistant Secretary] -41- EXHIBIT A [WARRANTS EVIDENCED BY THIS WARRANT CERTIFICATE CANNOT BE EXERCISED PRIOR TO ________ __, 199__.] [NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS WARRANT UNLESS THE WARRANT AGENT HAS RECEIVED THE CERTIFICATION DESCRIBED IN THE INTEREST RATE WARRANT AGREEMENT] EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN VOID AFTER [3:00 P.M.], NEW YORK CITY TIME, ON ________ __, 199__ No. _________ CUSIP No. ____________ GLOBAL WARRANT CERTIFICATE representing ________ Interest Rate [Put/Call] Warrants Expiring ________ __, 199__ BANKERS TRUST NEW YORK CORPORATION This certifies that [______________] or registered assigns is the registered holder of [insert number initially issued] Interest Rate [Put/Call] Warrants (the "Warrants"), or such lesser amount as is indicated in the records of [name of Warrant Agent], as Warrant Agent. Each Warrant entitles the [beneficial owner thereof (an "Owner")] [registered holder thereof (a "Holder")], subject to the provisions contained herein and in the Interest Rate Warrant Agreement referred to below, to receive from Bankers Trust New York Corporation, a New York corporation (the "Corporation"), the Cash Settlement Value (as defined below) [or Cancellation Amount (as defined below), as the case may be,] thereof in [U.S. dollars (specify other currency if applicable)], as further described below. [No exercise price shall be payable by any Holder or Owner in connection with the exercise of any Warrant.] [The exercise price for each Warrant shall be $_____ and shall be payable in [U.S. dollars (specify other currency if applicable)] (the "Exercise Price").] In no event shall any [Owner] [Holder] be entitled to any interest on the Cash Settlement Value [or Cancellation Amount] (unless the Corporation shall default in the payment of such Cash Settlement Value). Subject to the terms of the Interest Rate Warrant Agreement, each Warrant may be exercised or deemed to be A-1 exercised in whole but not in part on any New York Business Day (as defined below) from [the date of issuance (specify other date if applicable)] until [3:00 P.M.], New York City time, on the earlie[st] of (i) [_________ (specify date upon which right to exercise Warrants expires)] or, if such date is not a New York Business Day, on the next succeeding New York Business Day (the "Expiration Date"), [or] (ii) the date of automatic exercise [or (iii) the date of cancellation], as further described below and as provided in the Interest Rate Warrant Agreement. Except in the case of automatic exercise or any exercise on the Expiration Date, not fewer than [(specify minimum exercise amount)] [nor more than [(specify maximum exercise amount)] Warrants may be exercised by or on behalf of any one [Owner] [Holder] at any one time. References herein to "U.S. dollars", "U.S.$" or "$" are references to the currency of the United States of America. References to "[(insert name of Interest Rate currency)]" or "[_______]" are references to the currency of [name of Interest Rate country]. As used herein, the term "New York Business Day" means any day other than a Saturday or Sunday or a day on which the New York Stock Exchange or the American Stock Exchange [or (list any other relevant securities exchanges)] is not open for securities trading or banking institutions generally in The City of New York are authorized or required by law or executive order to close; "Interest Rate Country Business Day" means any day other than (i) a Saturday or a Sunday or a day on which banking institutions generally in [(specify name of Interest Rate country)] are authorized or required by law or executive order to close or (ii) a day on which the [names of relevant stock exchanges] are not open for business[; and "Interest Rate Country Resident" means a resident of, or any corporation or other Person organized under the laws of [(specify name of Interest Rate country)], its territories, its possessions or other areas subject to its jurisdiction]. This [Global] [Definitive] Warrant Certificate is issued under and in accordance with the Interest Rate Warrant Agreement, dated as of ________ __, 199__ (the "Interest Rate Warrant Agreement"), between the Corporation and the Warrant Agent, and is subject to the terms and provisions contained in the Interest Rate Warrant Agreement, to all of which terms and provisions all [Owners] [Holders] of the Warrants represented by this [Global] [Definitive] Warrant Certificate [and the Holder of this Global Warrant Certificate] consent by acceptance hereof [by the Depository (as defined below)]. Copies of the Interest Rate Warrant Agreement are on file at the Warrant Agent Office at ______________, New York, New York, _____, Attention: Corporate Trust Department, or at such other office as may be specified in a notice given to the [Owners] [Holders] of A-2 the Warrants. [Except as provided in the Interest Rate Warrant Agreement, Owners will not be entitled to receive definitive certificates evidencing their Warrants. Warrant holdings will be held through a depository selected by the Corporation, which initially is [The Depository Trust Company], or its agent (the "Depository", which term, as used herein, includes any successor depository selected by the Corporation) as further provided in the Interest Rate Warrant Agreement.] Capitalized terms included herein but not defined herein have the meanings assigned to them in the Interest Rate Warrant Agreement. The Cash Settlement Value of any Exercised Warrants (whether exercised automatically or by Exercise Notice) shall mean [__________________ (specify fraction)] of the U.S. dollar equivalent (rounded to the nearest dollar) of the amount, if any, by which [(i) the Strike Amount (as defined below) exceeds (ii) the Spot Amount (as defined below) on the Valuation Date (as defined below) with respect to such Exercised Warrant] [the amount, if any, by which (i) the Spot Amount (as defined below) on the Valuation Date (as defined below) with respect to such Exercised Warrant exceeds (ii) the Strike Amount (as defined below)]; provided that if such amount is less than zero, the Cash Settlement Value shall be zero. [The Cancellation Amount of any Exercised Warrants shall mean [Insert method for determining amount].] The "Spot Amount" on any date shall mean [Insert amount or method for determining amount]. The "Strike Amount" of any Exercised Warrant shall mean [Insert amount or method for determining amount]. The exchange rate (or manner of calculating such rate) for conversion of the Cash Settlement Value, [the Cancellation Amount,] the Strike Amount, the Spot Amount and/or the value of [Debt Instruments] [instruments underlying such Warrants], as applicable, into U.S. dollars shall be [_____________ (specify such rate or manner of calculating such rate)] and shall be determined by the Warrant Agent. Except in the case of automatic exercise [or cancellation] as further provided below and in the Interest Rate Warrant Agreement, and subject to any Maximum Exercisable Number of Warrants, the "Valuation Date" for any Warrant shall be the first Interest Rate Country Business Day next succeeding the "Exercise Date", which shall be the New York Business Day on which the Warrant Agent has received (i) delivery of [such Warrant on the records of the Depository free to the Warrant Account] [the Definitive Warrant Certificate representing such Warrant at the Warrant Agent Office][, (ii) the Exercise Price] and ([iii]) an A-3 Exercise Notice for such Warrant in good order in the form of [Exhibit B-1] [Exhibit B-2] to the Interest Rate Warrant Agreement, [which shall include certification that the [exercising Owner] [Holder] is not an Interest Rate Country Resident,] at or prior to [3:00 P.M.], New York City time; provided that if the Warrant Agent receives such Warrant[, the Exercise Price] or the Exercise Notice after [3:00 P.M.] on such day, the "Exercise Date" shall be the next succeeding New York Business Day and such Warrant[, Exercise Price] and Exercise Notice shall be deemed to have been received on such next succeeding New York Business Day. Any delivery of a Warrant or Exercise Notice received after [3:00 P.M.], New York City time, on the Expiration Date shall be void and of no effect and shall be deemed not to have been delivered. [A [Depository Participant] [Holder] may specify in its irrevocable Exercise Notice in relation to a Warrant that such Exercise Notice is conditional (a "Conditional Exercise Notice"), and in such case such Conditional Exercise Notice shall be void and of no effect and shall be disregarded for all purposes of the Interest Rate Warrant Agreement if [Describe the terms upon which the Exercise Notice may be conditional, which may be as follows: the Spot Amount on the day that, but for the provisions of this sentence, would be the Valuation Date for such Warrant is more than [_________________] [above] [below] the Spot Amount on the [Designated] Exercise Date of such Warrants (or, if such date is not an Interest Rate Country Business Day, on the immediately preceding Interest Rate Country Business Day) (the "Reference Value").] By [5:00 P.M.], New York City time, on the New York Business Day on which such Exercise Notice is received (or deemed to have been received), the Warrant Agent shall notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the number of Warrants in respect of which Exercise Notices, not rejected pursuant to the Interest Rate Warrant Agreement, were received (or deemed to have been received) at or prior to [3:00 P.M.], New York City time, on such date, the number of such Exercise Notices that were rejected by the Warrant Agent pursuant to the Interest Rate Warrant Agreement and the number of Warrants to which such rejected Exercise Notices relate [and the number of such Exercise Notices that were Conditional Exercise Notices (and the number of Warrants to which such Conditional Exercise Notices relate)]. By [5:00 P.M.], New York City time, on the Valuation Date for such Warrants (or if such Valuation Date is not a New York Business Day, then the next succeeding New York Business Day), the Warrant Agent shall (i) [(x) after obtaining the Reference Value and the Spot Amount for such Valuation Date, determine whether any A-4 Conditional Exercise Notices have become void pursuant to Section 2.02(b) of the Interest Rate Warrant Agreement, and if so, promptly notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) and send a Rejection Notice in the form of Exhibit C to the Interest Rate Warrant Agreement to the appropriate [Depository Participant] [Holder] and redeliver such Warrants to such [Depository Participant] [Holder] as provided in the Interest Rate Warrant Agreement and (y)] determine the aggregate number of [Tendered] [Exercised] Warrants, (ii) [determine pursuant to Section 2.02(f) of the Interest Rate Warrant Agreement the number of such Tendered Warrants which shall be Exercised Warrants, (iii)] determine the Cash Settlement Value (in the manner provided in Section 2.02(h) of the Interest Rate Warrant Agreement) of the Exercised Warrants, (iv) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of the Cash Settlement Value with respect to such Warrants, (v) send notice of confirmation of exercise in substantially the form of Exhibit D to the Interest Rate Warrant Agreement to the appropriate [Depository Participant] [Holder] and (vi) notify the Corporation (and such other parties (not to exceed two) as the Corporation shall designate in writing) of such other matters relating to the Exercised Warrants as the Corporation shall reasonably request. If the Corporation has made adequate funds available to the Warrant Agent in a timely manner as provided in the Interest Rate Warrant Agreement, the Warrant Agent will make payment in the form of a wire transfer to the appropriate Depository Participant on the [fifth] New York Business Day following the Valuation Date (or, if such Valuation Date is not a New York Business Day, on the [sixth] New York Business Day after such Valuation Date) (the "Settlement Date"), all as provided in the Interest Rate Warrant Agreement, such payment to be in the amount of the Cash Settlement Value in respect of Exercised Warrants exercised by such Depository Participant. [The Warrant Agent shall have no responsibility for the crediting by such Depository Participant of the Cash Settlement Value of such Warrants to the appropriate Owners.] [The Warrant Agent will cause its records to be marked to reflect the reduction in the number of Warrants represented by this Global Warrant Certificate by the number of Warrants for which payment has been made in accordance with the Interest Rate Warrant Agreement.] [If this Definitive Warrant Certificate shall be surrendered to the Warrant Agent for exercise of fewer than all the Warrants represented hereby, the Warrant Agent shall issue and A-5 deliver to the Holder of the Warrants represented hereby by first class mail at the expense of the Corporation a Definitive Warrant Certificate representing all Warrants remaining unexercised after such exercise.] All Warrants with respect to which (i) there has been no proper delivery of Warrants to the Warrant Account and no valid Exercise Notice has been received by the Warrant Agent at or prior to [3:00 P.M.], New York City time, on the earlier to occur of (A) the Expiration Date for such Warrants and (B) the last New York Business Day prior to the effective date on which the Warrants are delisting from, or permanently suspended from trading on, the [name of national securities exchange] without being accepted for listing on or prior to such New York Business Day on another United States national securities exchange (such New York Business Day, the "Delisting Date"), (ii) the Exercise Date has been postponed pursuant to Section 2.02(f) of the Interest Rate Warrant Agreement to a date on or after the earlier of the Expiration Date and the Delisting Date, [or (iii) list other events causing automatic exercise of Warrants, if applicable] will be automatically exercised on such Expiration Date or Delisting Date [or on the date on which (list other dates of automatic exercise)] (any such date, a "Deemed Exercise Date") without any requirement of notice of exercise to the Warrant Agent. The Valuation Date for such Warrants shall be the first Interest Rate Country Business Day following such Deemed Exercise Date. If the Corporation has made adequate funds available to the Warrant Agent in a timely manner as set forth in the Interest Rate Warrant Agreement, the Warrant Agent will make its payment available in the form of [a wire transfer to the appropriate Depository Participant] [one or more cashier's checks or official bank checks to the appropriate Holder] in the amount of [(x)] the Cash Settlement Amount with respect to each Warrant [minus (y) the Exercise Price], after [3:00 P.M.], New York City time, but prior to the close of business, on the [eighth] New York Business Day following the Valuation Date for such automatically exercised Warrants (or, if such Valuation Date is not a New York Business Day, on the [ninth] New York Business Day after such Valuation Date), such payment to be in the amount of the aggregate Cash Settlement Value in respect of Warrants that have been automatically exercised, all as provided in the Interest Rate Warrant Agreement; provided, however, that the Warrant Agent shall withhold any such payment with respect to any Warrants for which the Warrant Agent has not received [(i)] the related Warrants through transfer of such Warrants to the Warrant Account[, and (ii) certification that the Owner of such Warrants is A-6 not an Interest Rate Country Resident, dated no earlier than the Deemed Expiration Date and in the form of Exhibit E-1 to the Interest Rate Warrant Agreement]. When payment has been made in respect of all automatically exercised Warrants represented by this Warrant Certificate, the Warrant Agent shall, promptly upon receipt cancel this Warrant Certificate and deliver it to the Corporation. [(Insert provisions relating to discontinuation or modification of Rate or Debt Instrument)] The Corporation, the Warrant Agent and any agent of the Corporation or the Warrant Agent may deem and treat the registered Holder hereof as the absolute Holder of all right, title and interest in the Warrants evidenced hereby (notwithstanding any notation of ownership or other writing hereon) for any purpose and as the Person entitled to exercise the rights represented by the Warrants evidenced hereby, and neither the Corporation nor the Warrant Agent nor any agent of the Corporation or the Warrant Agent shall be affected by any notice to the contrary, except that the Corporation and the Warrant Agent shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated herein and in the Interest Rate Warrant Agreement. Subject to the terms of the Interest Rate Warrant Agreement, upon due presentment for registration of transfer or exchange of this [Global] [Definitive] Warrant Certificate at the Warrant Agent Office, the Corporation shall execute and the Warrant Agent shall countersign and deliver in the name of the designated transferee a new [Global] [Definitive] Warrant Certificate or [Global] [Definitive] Warrant Certificates of like tenor and representing in the aggregate a like number of unexercised Warrants as evidenced by this [Global] [Definitive] Warrant Certificate at the time of such registration of transfer, which shall be issued to the designated transferee in exchange for this [Global] [Definitive] Warrant Certificate, subject to the limitations provided in the Interest Rate Warrant Agreement, without charge. This [Global] [Definitive] Warrant Certificate and the Interest Rate Warrant Agreement are subject to amendment as provided in the Interest Rate Warrant Agreement. THIS [GLOBAL] [DEFINITIVE] WARRANT CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. A-7 This [Global] [Definitive] Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent. IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal. Dated as of ________ __, 199__ BANKERS TRUST NEW YORK CORPORATION By:___________________________ Name: Title: [SEAL] Attest:_______________________ Name: Title: Countersigned on the date above written: [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: A-8 EXHIBIT B-1 Form of Exercise Notice for Warrants Represented by a Global Warrant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation Interest Rate [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") 1. We refer to the Interest Rate Warrant Agreement, dated as of ________ __, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). On behalf of certain beneficial owners, each of whom is exercising no fewer than [__________] Warrants covered by this Notice and whose Warrants are held through the Depository in our name, we hereby irrevocably exercise [_____________] Warrants (the "Tendered Warrants"). 2. This Exercise Notice [is] [is not] a Conditional Exercise Notice. [We hereby acknowledge that a Conditional Exercise Notice will be void and of no effect (and shall be disregarded for all purposes under the Interest Rate Warrant Agreement) if the Spot Amount on the date that, but for the provisions of Section 2.02(b) of the Interest Rate Warrant Agreement, would be the Valuation Date for the Warrants is more than [__________] [above] [below] the Spot Amount on the [Designated] Exercise Date (or, if the [Designated] Exercise Date is not an Interest Rate Country Business Day, on the immediately preceding Interest Rate Country Business Day).] 3. We have instructed the Depository to deliver the Exercised Warrants free through the Depository to the Warrant Account [Account No. _______________])[, and we have made payment of the Exercise Price as provided in Section 2.01(b) of the Interest Rate Warrant Agreement]. 4. We hereby acknowledge that this Exercise Notice[, the Exercise Price] and the Tendered Warrants must be received by you by [3:00 P.M.], New York City time, on a New York Business Day in order for the Valuation Date of the Tendered Warrants to be the Interest Rate Country Business Day next succeeding such New York Business Day, and that if this Exercise Notice[, the Exercise Price] or the Tendered Warrants are received by you after [3:00 P.M.], New York City time, but prior to the close of business on a New York Business Day, the Valuation Date of the Tendered Warrants shall be the Interest Rate Country Business Day next succeeding the first New York Business Day following the day on which this Exercise Notice[, the Exercise Price] and the Tendered Warrants are received. [We further acknowledge that if this Conditional Exercise Notice[, the Exercise Price] or the Tendered Warrants are received by you after [3:00] P.M., New York City time, but prior to the close of business on a New York Business Day, that for purposes of making the determinations required by such Conditional Exercise Notice, the Warrants will be deemed to be exercised on the New York Business Day next succeeding the day on which this Exercise Notice[, the Exercise Price] and the Tendered Warrants are received.] 5. We hereby certify that we are a participant of [The Depository Trust Company] (the "Depository") with the present right to use and receive its services. 6. We hereby acknowledge that if you determine that this Exercise Notice has not been duly completed, or is not in proper form, or you are unable to verify that we are a participant of the Depository as provided above, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered. 7. We hereby direct you to make payment to us of amounts payable to the beneficial owners of the Tendered Warrants as a result of the exercise of the Tendered Warrants hereunder as follows: [ ] By cashier's check or an official bank check; or [ ] By wire transfer to the following U.S. dollar bank account in the United States: (Minimum payments of $100,000 only) Bank:_________________________________ Account No.:__________________________ ABA Routing No.:______________________ B-1-2 Reference:____________________________ [8. We hereby certify that none of the clients on whose behalf we are exercising the above referenced Warrants are Interest Rate Country Residents.] Capitalized terms used herein and not defined have the meanings assigned to them in the Interest Rate Warrant Agreement. Dated: ________ __, 199__ [NAME OF DEPOSITORY PARTICIPANT] [Participant Number] By:______________________ Name: Title: [Address] Telephone: Facsimile: B-1-3 EXHIBIT B-2 Form of Exercise Notice for Warrants Represented by a Definitive Warrant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation Interest Rate [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") 1. We refer to the Interest Rate Warrant Agreement, dated as of ________ __, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby irrevocably exercise [_____________] Warrants (the "Tendered Warrants") and deliver to you herewith a Definitive Warrant Certificate or Certificates, registered in the name of the undersigned, representing a number of Warrants at least equal to the number of Exercised Warrants [and payment of the Exercise Price as provided in Section 2.01(b) of the Interest Rate Warrant Agreement]. 2. This Exercise Notice [is] [is not] a Conditional Exercise Notice. [We hereby acknowledge that a Conditional Exercise Notice will be void and of no effect (and shall be disregarded for all purposes under the Interest Rate Warrant Agreement) if the Spot Amount on the date that, but for the provisions of Section 2.02(b) of the Interest Rate Warrant Agreement, would be the Valuation Date for the Warrants is more than [__________] [above] [below] the Spot Amount on the Exercise Date (or, if the Exercise Date is not an Interest Rate Country Business Day, on the immediately preceding Interest Rate Country Business Day).] 3. We hereby acknowledge that this Exercise Notice[, the Exercise Price] and the Definitive Warrant Certificates representing the Tendered Warrants must be received by you by [3:00] P.M., New York City time, on a New York Business Day in order for the Valuation Date of the Tendered Warrants to be the Interest Rate Country Business Day next succeeding such New York Business Day, and that if this Exercise Notice[, the Exercise Price] or such Definitive Warrant Certificates are received by you after [3:00] P.M., New York City time, but prior to the close of business on a New York Business Day, the Valuation Date of the Tendered Warrants shall be the Interest Rate Country Business Day next succeeding the first New York Business Day following the day on which this Exercise Notice[, the Exercise Price] and such Definitive Warrant Certificates are received. [We further acknowledge that if this Conditional Exercise Notice[, the Exercise Price] or such Definitive Warrant Certificates are received by you after [3:00] P.M., New York City time, but prior to the close of business on a New York Business Day, that for purposes of making the determinations required by such Conditional Exercise Notice, the Warrants will be deemed to be exercised on the New York Business Day next succeeding the day on which this Exercise Notice[, the Exercise Price] and such Definitive Warrant Certificates are received.] 4. We hereby acknowledge that if you determine that this Exercise Notice has not been duly completed or is not in proper form, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered. 5. We hereby direct you to make payment of amounts payable to us as a result of the exercise of the Warrants hereunder as follows: [ ] By cashier's check or an official bank check; or [ ] By wire transfer to the following U.S. dollar bank account in the United States: (Minimum payments of $100,000 only) Bank:_________________________________ Account No.:__________________________ ABA Routing No.:______________________ Reference:____________________________ [6. We hereby certify that at the time this notice is delivered to you, the beneficial owners of the Tendered Warrants are not Interest Rate Country Residents.] B-2-2 Capitalized terms used herein and not defined have the meanings assigned to them in the Interest Rate Warrant Agreement. Dated: ________ __, 199__ [NAME OF HOLDER] By:______________________ Name: Title: [Address] Telephone: Facsimile: B-2-3 EXHIBIT C Form of Rejection Notice [NAME OF DEPOSITORY PARTICIPANT OR HOLDER], [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation Interest Rate [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Interest Rate Warrant Agreement, dated as of ________ __, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent"). In the case of Tendered Warrants represented by a Global Warrant Certificate and rejected pursuant to Section 2.02(c)(v) of the Interest Rate Warrant Agreement: You are hereby notified that [the Exercise Notice delivered by you was determined by us not to have been [duly completed] [in proper form]] [we were not able to verify that you are a Depository Participant of [The Depository Trust Company] in the manner, and pursuant to the procedures], as set forth in the Interest Rate Warrant Agreement. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form. In the case of Tendered Warrants represented by a Definitive Warrant Certificate and rejected pursuant to Section 2.02(c)(ii) of the Interest Rate Warrant Agreement: You are hereby notified that [the Exercise Notice delivered by you was determined by us not to have been [duly completed] [in proper form]] [the Definitive Warrant Certificate delivered by you was determined by us not to have been in proper form], as set forth in the Interest Rate Warrant Agreement. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form. [In the case of Tendered Warrants that become void pursuant to Section 2.02(b) of the Interest Rate Warrant Agreement: You are hereby notified that we have rejected your Conditional Exercise Notice because the Spot Amount on the Valuation Date was [____________], and the Spot Amount on the [Designated] Exercise Date (or, if the [Designated] Exercise Date was not an Interest Rate Country Business Day, on the immediately preceding Interest Rate Country Business Day) was [_______________].] Capitalized terms used herein and not defined have the meanings assigned to them in the Interest Rate Warrant Agreement. Dated: ________ __, 199__ [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: C-2 EXHIBIT D Form of Confirmation of Exercise [NAME OF DEPOSITORY PARTICIPANT OR HOLDER], [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Exercise of Bankers Trust New York Corporation Interest Rate [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Interest Rate Warrant Agreement, dated as of ________ __, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and the undersigned, as Warrant Agent (the "Warrant Agent"). We hereby confirm receipt of your Exercise Notice with respect to ____________ Warrants (the "Exercised Warrants"), and the [Definitive Warrant Certificates representing the] Warrants relating thereto, which Exercise Notice [and Definitive Warrant Certificates] we have found to be duly completed and in good order[, and we have verified, in the manner provided in the Interest Rate Warrant Agreement, that you are a Depository Participant]. [The Corporation has elected to limit the number of Warrants that may have an Exercise Date of ___________ __, 199__ to [____________]. Of the Tendered Warrants, [_______________] Warrants have been selected to be Warrants that will have an Exercise Date on such date (such Warrants, the "Exercised Warrants"). The remaining [_____________] Tendered Warrants are deemed to be Delayed Exercise Warrants.] [The Corporation has not elected to limit the number of Warrants that may be exercised pursuant to Section 2.02(f) of the Interest Rate Warrant Agreement. Accordingly, all of the Tendered Warrants will have an Exercise Date of __________ __, 199__ and are hereinafter referred to as "Exercised Warrants".] We hereby confirm that the aggregate Cash Settlement Value of [payment currency] [_________________] of such Exercised Warrants ([payment currency] [_____________] per Warrant) [minus the aggregate Exercise Price thereof] will be made available to you in the form of a [wire transfer] [check], [five] New York Business Days after the Valuation Date for the Exercised Warrants (or, if the Valuation Date for the Exercised Warrants was not a New York Business Day, [six] New York Business Days after the Valuation Date) in accordance with the terms of the Interest Rate Warrant Agreement. Capitalized terms used herein and not defined have the meanings assigned to them in the Interest Rate Warrant Agreement. Dated: ________ __, 199__ [NAME OF WARRANT AGENT], as Warrant Agent By:___________________________ Name: Title: D-2 EXHIBIT E-1 Form of Depository Participant Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Automatic Exercise of Bankers Trust New York Corporation Interest Rate [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Interest Rate Warrant Agreement, dated as of ________ __, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby certify that: (a) we are acting on behalf of the Owners of ____________ Warrants, which have been automatically exercised pursuant to the Interest Rate Warrant Agreement and which we have delivered free on the records of the Depository to the Warrant Account[; and (b) we have received certification from such Owners that the beneficial owners of such Warrants are not Interest Rate Country Residents]. Capitalized terms used herein and not defined have the meanings assigned to them in the Interest Rate Warrant Agreement. Dated: ________ __, 199__ [NAME OF DEPOSITORY PARTICIPANT] [Participant Number] By:______________________ Name: Title: [Address] Telephone: Facsimile: D-1-2 EXHIBIT E-2 Form of Holder Certificate [NAME OF WARRANT AGENT], as Warrant Agent [address] Facsimile: ________________ Telephone: ________________ Attention: Re: Automatic Exercise of Bankers Trust New York Corporation Interest Rate [Put/Call] Warrants Expiring ________ __, 199__ (the "Warrants") We refer to the Interest Rate Warrant Agreement, dated as of ________ __, 199__ (the "Interest Rate Warrant Agreement"), between Bankers Trust New York Corporation (the "Corporation") and [Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby certify that: (a) we are the Holders of ____________ Warrants, which have been automatically exercised pursuant to the Interest Rate Warrant Agreement; [and] (b) we have surrendered the Definitive Warrant Certificates representing such Warrants at the Warrant Agent Office[; and (c) as of the date hereof, the beneficial owners of such Warrants are not Interest Rate Country Residents]. Capitalized terms used herein and not defined have the meanings assigned to them in the Interest Rate Warrant Agreement. Dated: ________ __, 199__ [NAME OF HOLDER] By:______________________ Name: Title: [Address] Telephone: Facsimile: E-2-2 EX-5.1 7 OPINION RE: LEGALITY EXHIBIT 5.1 Bankers Trust New York Corporation 280 Park Avenue New York, New York 10017 (212) 250-4857 Gordon S. Calder, Jr. May 6, 1994 Bankers Trust New York Corporation, 280 Park Avenue, New York, New York 10017 Ladies and Gentlemen: I am a Managing Director and Counsel of Bankers Trust Company and, as such, I have acted as counsel for Bankers Trust New York Corporation (the "Corporation") in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of $500,000,000 aggregate amount of the Corporation's debt securities (the "Debt Securities") and warrants (the "Warrants", and with the Debt Securities, the "Securities"). I am familiar with the actions taken in connection with the registration of the Securities and have examined such corporate records, certificates and other documents, and such questions of law, as I have considered necessary or appropriate for the purposes of this opinion. Capitalized terms used but not defined herein have the meanings assigned to them in Registration Statement No. 33-51615 relating to the Securities (the "Registration Statement"). Upon the basis of such examination, I advise you that, in my opinion: (i) When the Registration Statement has become effective under the Act, when, in the case of the Debt Securities issued under the Second Subordinated Indenture, such Indenture has been duly executed and delivered by the Corporation, and when the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the Indenture relating to such Debt Securities so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation, and such Debt Securities have been duly executed and authenticated in accordance with such Indenture and issued and sold as contemplated in the Registration Statement, such Debt Securities will constitute valid and legally binding obligations of the Corporation, 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. (ii) When the Registration Statement has become effective under the Act, the Warrant Agreement relating to one or more series of the Warrants has been duly executed and delivered by the Corporation, the terms of such Warrants and of their issuance and sale have been duly established in conformity with the Warrant Agreement relating to such Warrants so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation, such Warrants have been admitted for listing on a national securities exchange, and such Warrants have been duly executed and authenticated in accordance with the Warrants Agreement relating to such Warrants and issued and sold as contemplated in the Registration Statement, such Warrants will constitute valid and legally binding obligations of the Corporation, 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. I note that, as of the date of this opinion, a judgment for money in an action based on a Security denominated in a foreign currency or currency unit in a Federal or State court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Security is denominated into United States dollars will depend upon various factors, including which court renders the judgment. In the case of a Security denominated in a foreign currency, a state court in the State of New York rendering a judgment on such Security would be required sunder Section 27 of the New York Judiciary Law to render such judgment in the foreign currency in which the Security is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment. The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of New York, and I am expressing no opinion as to the effect of the laws of any other jurisdiction. No opinion is expressed herein as to any Federal or New York State tax laws. I have relied as to certain matters on information obtained from public officials, officers of the Corporation and other sources believed by me to be responsible, and I have assumed that (i) each of the Senior Indenture, the First Subordinated Indenture and the Second Subordinated Indenture has been duly authorized, executed and delivered by the respective Trustee thereunder, and (ii) each Warrant Agreement has been duly authorized, executed and delivered by the respective Warrant Agent thereunder, assumptions which I have not independently verified. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me under the heading "Validity of Offered Securities" in the prospectus contained therein. In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, Bankers Trust New York Corporation By: /s/ Gordon S. Calder, Jr. 2 EX-23.1 8 CONSENT OF INDEPENDENT AUDITOR'S REPORT EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference of our firm under the caption "Experts" in Pre- effective Amendment No. 1 to the Registration Statement (Form S-3 No. 33-51615) and related Prospectus of Bankers Trust New York Corporation for the registration of U.S. $500,000,000 Debt Securities and Warrants and to the incorporation by reference therein of our report dated January 26, 1994, with respect to the consolidated financial statements of Bankers Trust New York Corporation, included in its Annual Report (Form 10-K) for the year ended December 31, 1993, filed with the Securities and Exchange Commission. /s/ Ernst & Young New York, New York May 6, 1994 EX-25.2 9 AMENDMENT TO FORM T-1 EXHIBIT 25.2 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- AMENDMENT NUMBER 1 TO 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) ---------- MARINE MIDLAND BANK (Exact name of trustee as specified in its charter) 16-1057879 (I.R.S. Employer Identification No.) 140 Broadway, New York, N.Y. 10005-1180 (212) 658-1000 (Zip Code) (Address of principal executive offices) BANKERS TRUST NEW YORK CORPORATION (Exact name of obligor as specified in its charter) New York 13-6180473 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 280 Park Avenue New York, New York 10017 (212) 250-4857 (Address of principal executive offices) (Zip Code) SUBORDINATED DEBT SECURITIES (Title of Indenture Securities) General Item 1. General Information. ------------------- Furnish the following information as to the trustee: (a) Name and address of each examining or supervisory authority to which it is subject. State of New York Banking Department. Federal Deposit Insurance Corporation, Washington, D.C. Board of Governors of the Federal Reserve System, Washington, D.C. (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 16. List of Exhibits ---------------- Exhibit - ------- T1A(i) - Copy of the Organization Certificate of Marine Midland Bank. T1A(ii) - Certificate of the State of New York Banking Department dated December 31, 1993 as to the authority of Marine Midland Bank to commence business. T1A(iii) - Not applicable. T1A(iv) - Copy of the existing By-Laws of Marine Midland Bank as adopted on January 20, 1994. T1A(v) - Not applicable. T1A(vi) - Consent of Marine Midland Bank required by Section 321(b) of the Trust Indenture Act of 1939. T1A(vii) - Copy of the latest report of condition of the trustee (December 31, 1993), published pursuant to law or the requirement of its supervisory or examining authority. T1A(viii) - Not applicable. T1A(ix) - Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Marine Midland Bank, a trust company organized 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 the 11th day of April, 1994. MARINE MIDLAND BANK By:/s/ Metin Caner ---------------- Metin Caner Assistant Vice President EXHIBIT T1A(i) ORGANIZATION CERTIFICATE of "MARINE MIDLAND BANK" We, the undersigned, all being of full age, all but one of us being citizens of the United States and all of us being residents of the State of New York, having associated ourselves together for the purpose of forming a trust company under and pursuant to the Banking Law of the State of New York, do hereby certify: First. That the name by which the corporation is to be known is Marine ----- Midland Bank. Second. That the place where its principal office is to be located is ------ Buffalo, New York. Third. That the amount of its capital stock is to be One Hundred Eighty- ----- five Million and no/100 Dollars ($185,000,000.00) and the number of shares into which such capital stock is to be divided is 1,850,000 with a par value of $100.00 each. Fourth. The shares are not to be classified as preferred and common. ------ If the shares are to be so classified, (a) The number and par value of shares to be included in each class are as follows: not applicable. (b) All the designations, preferences, privileges and voting powers of the shares of each class, and the restrictions or qualifications thereof are as follows: not applicable. (c) The number of shares of common stock which are to be reserved for issuance in exchange for preferred shares or otherwise to replace any capital stock represented by preferred shares is none. Fifth. The name, place of residence and citizenship of each incorporator, ----- and the number of shares subscribed for by each are: No. of Full Name Residence *Citizenship Shares --------- --------- ------------ ------ James H. Cleave New York Canada 0 John M. Endries New York New York 0 Bernard J. Kennedy New York New York 0 Northrup R. Knox New York New York 0 Henry J. Nowak New York New York 0 Sixth. The term of existence of the corporation is to be perpetual. ----- Seventh. The number of directors is to be not less than seven or more than ------- thirty. Eighth. The names of the incorporators who shall be the directors until the ------ first annual meeting of stockholders are: James H. Cleave, John M. Endries, Bernard J. Kennedy, Northrup R. Knox and Henry J. Nowak. Ninth. The corporation is to exercise the powers conferred by Section 100 ----- of the Banking Law. - -------------------- * If a citizen of New York or a contiguous state, insert name of such state. IN WITNESS WHEREOF, We have made, signed and acknowledged this certificate in duplicate, this 16th day of September, 1993. /s/ James H. Cleave - -------------------- /s/ John M. Endries - -------------------- /s/ Bernard J. Kennedy - ----------------------- /s/ Northrup R. Knox - --------------------- /s/ Henry J. Nowak - ------------------- STATE OF NEW YORK) ) ss.: COUNTY OF ERIE ) On this 16th day of September, 1993, personally appeared before me James H. Cleave, John M. Endries, Bernard J. Kennedy, Northrup R. Knox and Henry J. Nowak, to me known to be the persons described in and who executed the foregoing certificate and severally acknowledged that they executed the same. /s/ Helen Kujawa ----------------- Notary Public (Attach County Clerk's certificate authenticating signature of Notary [NOTARIAL SEAL] Public who takes acknowledgement) Ninth. The corporation is to exercise the powers conferred by Section 100 ----- of the Banking Law. IN WITNESS WHEREOF, We have made, signed and acknowledged this certificate in duplicate, this 16th day of September, 1993. /s/ James H. Cleave - -------------------- /s/ John M. Endries - -------------------- /s/ Bernard J. Kennedy - ----------------------- /s/ Northrup R. Knox - --------------------- /s/ Henry J. Nowak - ------------------- STATE OF NEW YORK) ) ss.: COUNTY OF ERIE ) I, David J. Swarts, Clerk of the County of Erie, and also Clerk of the Supreme and County Courts for said County, the same being Courts of Record, do hereby certify that HELEN KUJAWA, whose name is subscribed to the deposition certificate of acknowledgement of proof of the annexed instrument, was at the time of taking the same a NOTARY PUBLIC in and for the State of New York, duly commissioned and sworn and qualified to act as such throughout the State of New York; that pursuant to law a commission, or a certificate of his appointment and qualifications and his autograph signature, have been filed in my office; that as such Notary Public he was duly authorized by the laws of the State of New York to administer oaths and affirmations to receive and certify that acknowledgement of proof of deeds, mortgages, powers of attorney and other written instruments for lands, tentaments and heriditaments to be read in evidence or recorded in this State, to protect notes and to take and certify affidavits and depositions; and that I am well acquainted with the handwriting of such Notary Public, or have compared the signature on the annexed instrument and with his autograph signature deposited in my office, and believe that the signature is genuine. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said County and Courts at Buffalo, this 17th day of September, 1993. [SEAL] N.P. No. 7502 /s/ David S. Swarts -------------------- Clerk ORGANIZATION CERTIFICATE of "MARINE MIDLAND BANK" Received this ____ day of _____________, 19__. Superintendent of Banks Filed for examination this ____ day of _____________, 19__. Superintendent of Banks ______________________ by the Banking Board at a meeting held on the ____ day of ______________, 19__. Secretary of the Banking Board ________________________________ this ____ day of ____________, 19__. Superintendent of Banks Filed in the office of ______________ this ____ day of ___________, 19__. Recorded in the office of _______________ this ____ day of ___________, 19__. EXHIBIT T1A(ii) STATE OF NEW YORK BANKING DEPARTMENT ------------------ KNOW ALL MEN BY THESE PRESENTS, WHEREAS, the organization certificate of MARINE MIDLAND BANK of Buffalo, New York has heretofore been duly approved and said MARINE MIDLAND BANK has complied with the provisions of Chapter 2 of the Consolidated Laws, in respect of the conversion of MARINE MIDLAND BANK, N.A. into a State trust company under the name MARINE MIDLAND BANK, NOW THEREFORE, I, DERICK D. CEPHAS, as Superintendent of Banks of the State of New York, do hereby authorize the said MARINE MIDLAND BANK to transact the business of a Trust Company at One Marine Midland Center, Buffalo, Erie County, within this State. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Banking Department, this 31st day of December in the year one thousand nine hundred and ninety-three. [SEAL] /s/ Derrick D. Cephas ---------------------- Superintendent (Adopted January 20, 1994) EXHIBIT T1A (iv) BY-LAWS of MARINE MIDLAND BANK ARTICLE I STOCKHOLDERS' MEETINGS Section 1.1 Annual Meeting. The annual meeting of the stockholders for the -------------- election of directors and the transaction of such other business as may properly come before the meeting shall be held in April each year at the office of the Bank, One Marine Midland Center, City of Buffalo, State of New York. Section 1.2 Special Meetings. Except as otherwise specifically provided by ---------------- statute, special meetings of the stockholders may be called for any purpose at any time by the Board of Directors, the Chairman of the Board, the President, the Chief Executive Officer or the Secretary at such place and time and on such day as may be designated in the notice of meeting. Business transacted at all special meetings of stockholders shall be confined to the purposes stated in the notice of meeting. Section 1.3 Quorum. The holders of a majority of the stock issued and ------ outstanding, and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of stockholders, unless otherwise provided by law. Section 1.4 Voting. ------ a. At any meeting of the stockholders each stockholder may vote in person or by proxy duly authorized in writing. Each stockholder shall at every meeting of stockholders be entitled to one vote for each share of stock held by such stockholder. A majority of the votes cast shall decide every question or matter submitted to the stockholders at any meeting, unless otherwise provided by law or by the Organization Certificate. b. Any action required to be taken at an annual or special meeting of stockholders may be taken without a meeting by written consent setting forth the action and signed by the holders of all of outstanding shares entitled to vote thereon. Section 1.5 Notice of Meeting. Written notice of each meeting of ----------------- stockholders stating the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called and the person or persons calling the meeting, shall be delivered personally or shall be mailed postage prepaid to each stockholder entitled to vote at such meeting, directed to the stockholder at his or her address as it appears on the records of the Bank, not less than ten or more than 50 days before the date of the meeting. ARTICLE II DIRECTORS Section 2.1 Board of Directors. The Board of Directors (the "Board") shall ------------------ have power to manage and administer the business and affairs of the Bank and, except as expressly limited by law, all corporate powers of the Bank shall be vested in and may be exercised by the Board unless such powers are required by statute, the Organization Certificate or these By-Laws to be exercised by the stockholders. Section 2.2 Number and Term. The Board shall consist of not less than seven --------------- or more than thirty directors, the exact number within such minimum and maximum limits to be fixed and determined from time to time by resolution of a majority of the entire Board or by resolution of the stockholders at any meeting of stockholders. Unless sooner removed or disqualified, each director shall hold office until the next annual meeting of the stockholders and until the director's successor has been elected and qualified. Section 2.3 Organization Meeting. At its first meeting after each annual -------------------- meeting of stockholders, the Board shall choose a Chairman of the Board, a President and a Chief Executive Officer from its own members and otherwise organize the new Board and appoint officers of the Bank for the succeeding year. Section 2.4 Chairman of the Board. The Chairman of the Board shall preside --------------------- at all meetings of the Board and of stockholders and perform such duties as shall be assigned from time to time by the Board. In the absence of the Chairman of the Executive Committee, the Chairman of the Board shall act as Chairman of the Executive Committee. Except as may be otherwise provided by the By-Laws or the Board, the Chairman of the Board shall be a member ex officio of all comn~ittees authorized by these By-Laws or the Board. The Chairman of the Board shall be kept informed by the executive officers about the affairs of the Bank. Section 2.5 Regular Meetings. The regular meetings of the Board shall be ---------------- held each month at the time and location designated by the Board. No notice of a regular meeting shall be required if the meeting is held according to a schedule of regular meetings approved by the Board. Section 2.6 Special Meetings. Special meetings of the Board may be called ---------------- by the Chairman of the Board, the President, the Chief Executive Officer or the Secretary or at the written request of any three or more directors. Each member of the Board shall be given notice stating the time and place of each such special meeting by telegram, telephone or similar electronic means or in person at least one day prior to such meeting, or by mail at least three days prior. Section 2.7 Quorum. One third of the entire Board shall constitute a quorum ------ at any meeting, except when otherwise provided by law. If a quorum is not present at any meeting, a majority of the directors present may adjourn the meeting, and the meeting may be held, as adjourned, without further notice provided that a quorum is then present. The act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, unless otherwise specifically provided by statute, the Organization Certificate or these By-Laws. Section 2.8 Vacancies. When any vacancy occurs among the directors, the --------- remaining members of the Board may appoint a director to fill each such vacancy at any regular meeting of the Board or at a special meeting called for that purpose. Any director so appointed shall hold office until the next annual meeting of the stockholders and until the director's successor has been elected and qualified, unless sooner displaced. Section 2.9 Removal of Directors. Any director may be removed either with -------------------- or without cause, at any time, by a vote of the holders of a majority of the shares of the Bank at any meeting of stockholders called for that purpose. A director may be removed for cause by vote of a majority of the entire Board. Section 2.10 Compensation of Directors. The Board shall fix the amounts to ------------------------- be paid directors for their services as directors and for their attendance at the meetings of the Board or of committees or otherwise. No director who receives a salary from the Bank shall receive any fee for attending meetings of the Board or of any of its committees. Section 2.11 Action by the Board. Except as otherwise provided by law, ------------------- corporate action to be taken by the Board shall mean such action at a meeting of the Board or the Executive Committee of the Board. Any one or more members of the Board or any committee may participate in a meeting of the Board or committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. Section 2.12 Waiver of Notice. Notice of a meeting need not be given to any ---------------- director who submits a signed waiver of notice before or after the meeting or who attends the meeting without protesting the lack of such notice prior to or at the commencement of the meeting. Section 2.13 Advisory and Regional Boards. The Board, the Chairman of the ---------------------------- Board, the President, the Chief Executive Officer or any Regional President may establish Advisory Boards or Regional Boards and committees thereof for any one or more of the Bank's regions, offices, or departments and make or authorize appointments to be made thereto. Appointees to such boards and committees need not be stockholders, directors or officers of the Bank, and they shall have and perform only such functions as may be assigned to them by, shall serve at the pleasure of, and shall be compensated by fees fixed by the Board, the Chairman of the Board, the President, the Chief Executive Officer or the Regional President making the appointment. ARTICLE III COMMITTEES OF THE BOARD Section 3.1 Executive Committee. ------------------- a. There shall be an Executive Committee which shall be composed of at least five members elected by the Board from among its members at its first meeting following the annual meeting of stockholders to serve for the ensuing year and shall include the Chairman of the Board, the President, the Chief Executive Officer and the Chairman of the Executive Committee, all of which offices may be held by one person. The Chairman of the Board may appoint one or more directors as alternate members to serve in place of any absent members of the Executive Committee. Any vacancy in the Executive Committee shall be filled by the Board, but until its next regular Board meeting may be filled temporarily by the Chairman of the Board. b. The Executive Committee shall possess and exercise all of the powers of the Board except (i) when the latter is in session and (ii) as provided otherwise in the New York Banking Law. Section 3.2 Chairman of the Executive Committee. The Board shall appoint ----------------------------------- one of its members to be Chairman of the Executive Committee. The Chairman of the Board, the President or the Chief Executive Officer may at the same time be appointed Chairman of the Executive Committee. The Chairman of the Executive Committee shall preside at all meetings of the Executive Committee, and the Chairman of the Executive Committee shall, in the absence of the Chairman of the Board, the President and the Chief Executive Officer, preside at all meetings of stockholders and the Board. The Chairman of the Executive Committee shall also perform such other duties and be vested with such other powers as may from time to time be conferred upon him or her by these By-Laws or as shall be assigned to him or her from time to time by the Board or the Chief Executive Officer. Section 3.3 Meetings of the Executive Committee. Meetings of the Executive ----------------------------------- Committee may be called by the Chairman of the Board, the Chairman of the Executive Committee, the President, the Chief Executive Officer or the Secretary and may be held at any place and at any time designated in the notice thereof Each member of the Executive Committee shall be given notice stating the time and place of each such meeting, by telegram, telephone or similar electronic means or in person at least one day prior to such meeting, or by mail at least three days prior. Section 3.4 Examining Committee. The Board shall designate an Examining ------------------- Committee, which shall hold office until the next annual meeting of the Board following the annual meeting of stockholders, consisting of not less than three of its members, other than officers of the Bank, and whose duty it shall be to make an examination at least once during each calendar year and within 15 months of the last such examination into the affairs of the Bank including the administration of fiduciary powers, or cause suitable examinations to be made by auditors responsible only to the Board and to report the result of such examination in writing to the Board. Such report shall state whether the Bank is in a sound condition, whether adequate internal controls and procedures are being maintained and shall recommend to the Board such changes in the manner of conducting the affairs of the Bank as shall be deemed advisable. The Committee shall at such time ascertain whether the Bank's fiduciary responsibilities have been administered in accordance with law and sound fiduciary principles. Section 3.5 Other Committees. The Board may appoint, from time to time, ---------------- from its own members, committees of the Board of three or more persons, for such purposes and with such powers as the Board may determine. ARTICLE IV OFFICERS Section 4.1 Appointment of Officers. At its annual meeting following the ----------------------- annual meeting of stockholders, the Board shall appoint from among its members a Chairman of the Board, a President, a Chief Executive Officer and a Secretary. The Chairman of the Board or the President may also be appointed as the Chief Executive Officer. At such meeting, the Board shall also appoint one or more Vice Presidents, and may at such meeting or at other meetings of the Board appoint such other officers as it may determine from time to time. The Board may also authorize a committee of the Board to appoint such officers as are not required to be appointed by the Board at a meeting. Section 4.2 Duties of President. In the absence of the Chairman of the ------------------- Board, the President shall preside at all meetings of the Board and of stockholders and in the absence of the Chairman of the Executive Committee and the Chairman of the Board shall preside at all meetings of the Executive Committee. Except as may be otherwise provided by the By-Laws or the Board, the President shall be a member ex officio of all committees authorized by these By-Laws or the Board. The President shall have general executive powers, shall participate actively in all major policy decisions and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice to the Office of President or imposed by these By-Laws. The President shall also have and may exercise such further powers and duties as from time to time may be conferred or assigned by the Board or the Chief Executive Officer. Section 4.3 Duties of Chief Executive Officer. The Chief Executive Officer --------------------------------- shall exercise general supervision over the policies and business affairs of the Bank and the carrying out of the policies adopted or approved by the Board. Except as otherwise provided by these By-Laws, the Chief Executive Officer shall have the power to determine the duties of the officers of the Bank and to employ and discharge officers and employees. Except as otherwise provided by the By-Laws or the Board, the Chief Executive Officer shall be a member ex officio of all committees authorized by these By-Laws or created by the Board. In the absence of the Chairman of the Board and the President, the Chief Executive Officer shall preside at all meetings of the Board and of stockholders. Section 4.4 Duties of Vice Presidents. Each Vice President shall have such ------------------------- titles, seniority, powers and duties as may be assigned by the Board, a committee of the Board, the President or the Chief Executive Officer. Section 4.5 Secretary. The Secretary shall be Secretary of the Board and of --------- the Bank and shall keep accurate minutes of all meetings of stockholders and of the Board. The Secretary shall attend to the giving of all notices required to be given by these By-Laws; shall be custodian of the corporate seal, records, documents and papers of the Bank; shall provide for the keeping of proper records of all transactions of the Bank; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice to the office of Secretary or imposed by these By-Laws; and shall also perform such other duties as may be assigned from time to time by the Board, the president or the Chief Executive Officer. Section 4.6 Other Officers. The President or the Chief Executive Officer or -------------- his or her designee may appoint all officers whose appointment does not require approval by the Board or a committee of the Board and assign to them such titles as from time to time may appear to be required or desirable to transact the business of the Bank. Each such officer shall have such powers and duties as may be assigned by the Board, the president or the Chief Executive Officer. Section 4.7 Tenure of Office. The Chairman of the Board, the President, the ---------------- Chief Executive Officer, the Chairman of the Executive Committee, the Secretary and the Vice Presidents shall hold office for the current year for which the Board was elected and until their successors have been appointed and qualified, unless they shall resign, become disqualified or be removed. All other officers shall hold office until their successors have been appointed and qualify, unless they shall resign, become disqualified or be removed. The Board shall have the power to remove the Chairman of the Board, the President, the Chief Executive Officer, the Chairman of the Executive Committee and the Secretary. The Board or the Chief Executive Officer or his or her designee shall have the power to remove all other officers and employees. Any vacancy occurring in the offices of Chairman of the Board, President or Chief Executive Officer shall be filled promptly by the Board. Section 4.8 Compensation. The Board shall by resolution determine from time ------------ to time the officers whose compensation will require approval by the Board or a committee of the Board. The Chief Executive Officer shall fix the compensation of all officers and employees whose compensation does not require approval by the Board or a committee of the Board. Section 4.9 Auditor. The Board or the Chief Executive Officer shall appoint ------- an officer to fill the position of Auditor for the Bank and assign to such officer such title as is deemed appropriate. The Auditor shall perform all duties incident to the audit of all departments and offices and of all affairs of the Bank. The Auditor shall be responsible to the Chief Executive Officer. The Auditor may at any time report to the Board any matter concerning the affairs of the Bank that, in the Auditor's judgment, should be brought to its attention. Section 4.10 Regional Presidents. The Board may appoint one or more ------------------- Regional Presidents. Each Regional President shall have such powers and duties as may be assigned by the Board or the Chief Executive Officer. ARTICLE V FIDUCIARY POWERS Section 5.10 Fiduciary Responsibility. The Board shall appoint an officer ------------------------ or officers or a committee or committees of this Bank whose duties shall be to manage, supervise and direct the fiduciary activities of the Bank as assigned by the Board. Such officer or committee shall do or cause to be done all things necessary or proper in carrying on the assigned activities in accordance with provisions of law and applicable regulations and shall act pursuant to opinion of counsel where such opinion is deemed necessary. Opinions of counsel shall be retained on file in connection with all important matters pertaining to fiduciary activities. The officer or committee shall be responsible for all assets and documents held by the Bank in connection with fiduciary matters assigned by the Board. Section 5.11 Fiduciary Files. Files shall be maintained containing all --------------- fiduciary records necessary to assure that fiduciary responsibilities have been properly undertaken and discharged. Section 5.12 Fiduciary Investments. Funds held in a fiduciary capacity --------------------- shall be invested in accordance with the instrument establishing the fiduciary relationship and applicable law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Bank a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under applicable law. ARTICLE VI STOCK AND STOCK CERTIFICATES Section 6.1 Transfers. Shares of the stock of the Bank shall be --------- transferable on the books of the Bank, only by the person named in the certificate or by an attorney, lawfully constituted in writing, and upon surrender of the certificate therefor. Every person an attorney, lawfully constituted in writing, and upon surrender of the certificate therefor. Every person becoming a stockholder by such transfer shall, in proportion to his or her shares, succeed to all rights of the prior holder of such shares. Section 6.2 Stock Certificates. The certificates of stock of the Bank shall ------------------ be numbered and shall be entered in the books of the Bank as they are issued. They shall exhibit the holder's name and number of shares and shall be signed by the Chairman of the Board, the President, the Chief Executive Officer or any Vice President and by the Secretary or an Assistant Secretary. ARTICLE VII CORPORATE SEAL Section 7.1 Corporate Seal. The Chairman of the Board, the President, the -------------- Chief Executive Officer, the Secretary or any Assistant Secretary, a Vice President or Assistant Vice President or other officer designated by the Board or the Chief Executive Officer or his or her designee shall have authority to affix the corporate seal to any document requiring such seal and to attest the same. Such seal shall be substantially in the following form: (impression) ( of ) ( seal ) ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.1 Fiscal Year. The fiscal year of the Bank shall be the calendar ----------- year. Section 8.2 Execution of Instruments. ------------------------ a. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted in behalf of the Bank or in connection with the exercise of the fiduciary powers of the Bank, by the Chairman of the Board, the President, the Chief Executive Officer, the Secretary or any other officer or employee (other than the Auditor) designated by the Board or the Chief Executive Officer or his or her designee. Any such instruments may also be executed, acknowledged, verified, delivered or accepted in behalf of the Bank in such other manner and by such other officers as the Board may from time to time direct. The provisions of this Section 8.2 are supplementary to any other provision of these By-Laws. b. When required, the Secretary or any officer or agent designated by the Board or the Chief Executive Officer or his designee shall countersign and certify all bonds or certificates issued by the Bank as trustee, transfer agent, registrar or depository. The Chief Executive Officer or any officer designated by the Board or the Chief Executive Officer or his or her designee shall have the power to accept in behalf of the Bank any guardianship, receivership, executorship or other special or general trust permitted by law. Each of the foregoing authorizations shall be at the pleasure of the Board, and each such authorization by the Chief Executive Officer or his or her designee also shall be at the pleasure of the Chief Executive Officer. Section 8.3 Records. The By-Laws and the proceedings of all meetings of the ------- stockholders, the Board and standing committees of the Board shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary or other officer appointed to act as secretary of the meeting. Section 8.4 Emergency Operations. In the event of war or warlike damage or -------------------- disaster of sufficient severity to prevent the conduct and management of the affairs, business and property of the Bank by its directors and officers as contemplated by these By-Laws, any two or more available members of the then- incumbent Executive Committee shall constitute a quorum of that committee for the full conduct and management of the affairs, business and property of the Bank. In the event of the unavailability at such time of a minimum of two members of the then-incumbent Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs, business and property of the Bank. This by-law shall be subject to implementation by resolutions of the Board passed from time to time for that purpose, and any provisions of these By-Laws (other than this section) and any resolutions which are contrary to the provisions of this section or to the provisions of any such implementary resolutions shall be suspended until it shall be determined by any interim Executive Committee acting under this section that it shall be to the advantage of the Bank to resume the conduct and management of its affairs, business and property under all of the other provisions of these By-Laws. Section 8.5 Indemnification. --------------- a. The Bank shall indemnify each person made or threatened to be made a party to any action or proceeding, whether civil or criminal, by reason of the fact that such person or such person's testator or intestate is or was a director or officer of the Bank, or, while a director or officer, serves or served, at the request of the Bank, any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, penalties, amounts paid in settlement and reasonable expenses, including attorney's fees, incurred in connection with such action or proceeding, or any appeal therein, provided that no such indemnification shall be made if a judgment or other final adjudication adverse to such director or officer establishes that his or her acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled, and provided further that no such indemnification shall be required with respect to any settlement or other nonjudicated disposition of any threatened or pending action or proceeding unless the Bank has given its prior consent to such settlement or other disposition. b. The Bank shall advance or promptly reimburse upon request any director or officer seeking indemnification hereunder for all expenses, including attorneys' fees, reasonably incurred in defending any action or proceeding in advance or the final disposition thereof upon receipt of an undertaking by or on behalf of such person to repay such amount if such person is ultimately found not to be entitled to indemnification or, where indemnification is granted, to the extent the expenses so advanced or reimbursed exceed the amount to which such person is entitled. c. This Section 8.5 shall be given retroactive effect, and the full benefits hereof shall be available in respect of any alleged or actual occurrences, acts or failures to act prior to the date of the adoption of this Section 8.5. The right to indemnification of advancement of expenses under this Section 8.5 shall be a contract right. Section 8.6 Amendments. These By-Laws may be added to, amended, altered or ---------- repealed at any regular meeting of the Board by a vote of a majority of the total number of the directors, or at any meeting or stockholders, duly called and held, by a majority of the stock represented at such meeting. I __________________, CERTIFY that I am the duly appointed Secretary of Marine Midland Bank and, as such officer, have access to its official records and the foregoing By-Laws are the By-Laws of the Bank, and all of them are now lawfully in force and effect. IN TESTIMONY WHEREOF, I have hereunto affixed my official signature and the seal of the Bank, in New York, on _______________________. Secretary [SEAL] EXHIBIT T1A(vi) Securities and Exchange Commission Washington, D.C. 20549 Dear Sirs: Pursuant to Section 321(b) of the Trust Indenture Act of 1939 and subject to the qualifications and limitation of 321(b) and the other provisions of the Trust Indenture Act of 1939, the undersigned Marine Midland Bank consents that reports of examination by Federal, State, Territorial or District authorities may be furnished by such authorities to the Commission upon request therefor. Yours very truly, MARINE MIDLAND BANK By: Metin Caner Assistant Vice President Attest: By: Eileen M. Hughes Corporate Trust Officer EXHIBIT T1A(vii) REPORT OF CONDITION Consolidated Report of Condition of Marine Midland Bank of Buffalo, New York and Foreign and Domestic Subsid- iaries, a member of the Federal Reserve System, at the close of business on December 31, 1993, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act. (Dollar Amounts in Thousands) ASSETS Cash and balance due from depositary institutions: Noninterest-bearing balances and currency and coin.................................... 1,071,645 Interest-bearing balances................................ 1,492,007 Securities.................................................... 1,919,704 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's Federal funds sold ...................................... 357,000 Securities purchased under agreements to resell .................................................. 593,002 Loans and lease financing receivables: Loans and leases, net of unearned income ....................................... 9,930,891 LESS: Allowance for loan and lease losses ...................................... 342,089 LESS: Allocated transfer risk reserve ..................................... 0 Loans and lease, net of unearned income, allowance, and reserve ................................ 9,588,802 Assets held in trading accounts ................................ 1,615,072 Premises and fixed assets (including capitalized leases) ................................ 193,194 Other real estate owned ........................................ 142,240 Investments in unconsolidated subsidiaries and associated companies ......................... 0 Customers' liability to this bank on acceptances outstanding .................................... 15,007 Intangible assets .............................................. 69,056 Other assets ................................................... 428,500 ---------- Total assets ................................................... 17,485,229 ========== LIABILITIES Deposits: In domestic offices .......................................... 12,377,782 Noninterest-bearing .......................... 3,259,659 Interest-bearing ............................. 9,118,123 In foreign offices, Edge and Agreement Subsidiaries, and IBF's ...................................................... 1,002,884 Noninterest-bearing .......................... 0 Interest-bearing ............................. 1,002,884 Federal funds purchased securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's Federal funds purchased ........................... 1,115,269 Securities sold under agreements to repurchase ............... 260,530 Demand notes issued to the U.S. Treasury ....................... 300,000 Other borrowed money ........................................... 510,549 Mortgage indebtedness and obligations under capitalized leases ............................................ 41,852 Bank's liability on acceptances executed and outstanding...................................... 17,591 Subordinated notes and debentures .............................. 225,000 Other liabilities .............................................. 317,656 ---------- Total Liabilities .............................................. 16,169,113 Limited-Life preferred stock and related surplus ............... 0 EQUITY CAPlTAL Perpetual preferred stock and related surplus .................. 0 Common Stock ................................................... 185,000 Surplus ........................................................ 1,182,745 Undivided profits and capital reserves ......................... (51,269) LESS: Net unrealized loss on marketable equity securities ............................................... 0 Cumulative foreign currency translation adjustments ............ 0 Total equity capital ........................................... 1,316,116 ---------- Total Liabilities, limited-life preferred stock and equity capital ..................................................... 17,485,229 ========== I, Gerald A. Ronning, Executive Vice President and Controller of the above- named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. GERALD A. RONNING We the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct. James H. Cleave Director Bernard J. Kennedy Director Northrup R. Knox Director -----END PRIVACY-ENHANCED MESSAGE-----