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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): December 6, 1994
THE BANK OF NEW YORK COMPANY, INC.
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(exact name of registrant as specified in its charter)
NEW YORK
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(State or other jurisdiction of incorporation)
1-6152 13-2614959
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(Commission file number) (I.R.S. employer
identification number)
48 Wall Street, New York, NY 10286
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(Address of principal (Zip code)
executive offices)
212 - 495 - 1784
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(Registrant's telephone number,
including area code)
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Item 5 Other Events
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Four exhibits are filed herewith in connection with the
Registration Statements on Form S-3 (File Nos. 33-51984 and
33-50333) filed by The Bank of New York Company, Inc. (the
"Company") with the Securities and Exchange Commission
covering the Company's 8.50% Subordinated Notes due 2004
(the "Notes"), issuable under an Indenture, dated as of
October 1, 1993 between the Company and Nationsbank of
Georgia, National Association. The exhibits consist of the
Underwriting Agreement, dated December 6, 1994, between the
Company and UBS Securities Inc, (the "Underwriting
Agreement"); the Form of Note; an Officers' Certificate
pursuant to Section 301 of the Indenture; and the opinion of
counsel as to the legality of the Notes.
Item 7 Financial Statements, Pro Forma Financial
- ------ Information and Exhibits
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(c) Exhibits
The following exhibits are filed herewith:
1 Form of Underwriting Agreement, dated December 6,
1994 between the Registrant and UBS Securities Inc.,
as Underwriter.
4 Form of Registrant's 8.50% Note due December 15,
2004.
4.1 Officers' Certificate pursuant to Section 301 of
the Indenture.
5 Opinion of Paul A. Immerman, Esq.
23 Consent of Paul A. Immerman, Esq. (included in
Exhibit 4)
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SIGNATURE
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Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
Date: December 13, 1994
The Bank of New York Company, Inc.
By: /s/ Robert E. Keilman
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Name: Robert E. Keilman
Title: Comptroller
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EXHIBIT INDEX
Exhibit No. Description
1 Form of Underwriting Agreement, dated
December 6, 1994 bewtween the Registrant
and UBS Securities Inc., Underwriter.
4 Form of Registrant's 8.50% Note due December
15, 2004.
4.1 Officers' Certificate pursuant to Section 301
of the Indenture.
5 Opinion of Paul A. Immerman, Esq.
23 Consent of Paul A. Immerman, Esq. (included
in Exhibit 4)
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The Bank of New York Company, Inc.
8.50% Subordinated Notes due 2004
Underwriting Agreement
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December 6, 1994
UBS Securities Inc.
299 Park Avenue
New York, New York 10171
Dear Sirs:
The Bank of New York Company, Inc., a New York corporation
(the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to you (the "Underwriter") an
aggregate of $300,000,000 principal amount of the Subordinated
Notes specified above (the "Securities").
1. The Company represents and warrants to, and agrees
with, the Underwriter that:
(a) Two registration statements in respect of the Securities
(Nos. 33-51984 and 33-50333) have been filed with the Securities
and Exchange Commission (the "Commission"); such registration
statements and any post-effective amendments thereto, each in the
form heretofore delivered or to be delivered to the Underwriters
and, excluding exhibits thereto, but including all documents
incorporated by reference in the prospectus included in each such
registration statement, has been declared effective by the
Commission in such form; no other document with respect to such
registration statements or document incorporated by reference
therein has heretofore been filed or transmitted for filing with
the Commission; and no stop order suspending the effectiveness of
either of such registration statements has been issued and no
proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under
the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"; the various parts
of each such registration statement, including all exhibits thereto
and the documents incorporated by reference in the prospectus
contained in each such registration statement at the time such
part of such registration statement became effective but excluding
Form T-1,
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each as amended at the time such part of the registration
statement became effective, being hereinafter collectively called
the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the
date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the Securities in the form
in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the
Underwriter expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
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(c) The Registration Statement and the Prospectus and any
further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus or any amendment or supplement
thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by the Underwriter expressly for use therein or to that
part of the Registration Statement which shall constitute the
Statement of Eligibility under the Trust Indenture Act (Form T-1)
of the Trustee;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has
not been any material adverse change, or any development
involving a prospective material adverse change, in the
creditworthiness of the Company and its subsidiaries on a
consolidated basis, other than as set forth or contemplated in
the Prospectus;
(e) Each of the Company and The Bank of New York (the
"Bank") has been duly organized and is validly existing as a
corporation or banking corporation, as the case may be, and is an
existing corporation or banking corporation, as the case may be,
in good standing under the laws of the State of New York;
(f) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable; and all of the issued shares of
capital stock of the Bank have been duly and validly authorized
and issued, are fully paid and non-assessable (except as provided
in Article III of the Banking Law of the State of New York) and
are owned by the Company, free and clear of all liens,
encumbrances, equities or claims;
(g) The Securities have been duly authorized and, when
issued and delivered pursuant to this Agreement, will have been
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, dated as of
October 1, 1993 (the "Indenture"), between the Company and
Nationsbank of Georgia, National Association, as Trustee (the
"Trustee"), under which they are to be issued, which will be
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and has been
duly qualified under the Trust Indenture Act and the Indenture
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constitutes a valid and legally binding instrument enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities and
the Indenture will conform to the descriptions thereof in the
Prospectus;
(h) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the
Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or
the Indenture, except such as have been obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriter; and
(i) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened against
or affecting, the Company or any of its subsidiaries, which might
result in any material adverse change in the financial condition,
shareholders' equity or results of operations of the Company and
its subsidiaries considered as one enterprise.
2. Subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, at a purchase
price of 98.883% of the principal amount thereof, $300,000,000
aggregate principal amount of the Securities.
3. Upon the authorization by you of the release of the
Securities, the Underwriter proposes to offer the Securities for
sale upon the terms and conditions set forth in the Prospectus.
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4. Securities to be purchased by the Underwriter
hereunder, in definitive form, and in such authorized
denominations and registered in such names as you may request
upon at least forty-eight hours' prior notice to the Company,
shall be delivered by or on behalf of the Company to you for your
account, against payment by you of the purchase price therefor by
wire transfer payable in immediately available funds, all at the
office of UBS Securities Inc. The time and date of such delivery
and payment shall be, with respect to the Securities, 9:30 a.m.,
New York time, on December 13, 1994, or at such other time and
date as you and the Company may agree upon in writing. Such time
and date for delivery of the Securities is herein called the
"Time of Delivery." Such certificates will be made available for
checking and packaging at least twenty-four hours prior to the
Time of Delivery at the office of UBS Securities Inc., 299 Park
Avenue, New York, New York 10171.
5. The Company agrees with the Underwriter:
(a) To file the Prospectus as amended or supplemented with
the Commission; to make no further amendment or any supplement to
the Registration Statement or Prospectus prior to the Time of
Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a Prospectus is required in connection with the
offering or sale of the Securities; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or Prospectus, of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or
suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you
may reasonably request to qualify the Securities for offering and
sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith the Company
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shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriter with copies of the
Prospectus in such quantities as you may from time to time
reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the
offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall
be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to
notify you and upon your request to file such document and to
prepare and furnish without charge to the Underwriter and to any
dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required
to deliver a Prospectus in connection with sales of the
Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of
the Underwriter, to prepare and deliver to such Underwriter as
many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earning statement of the Company and
its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company
Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the earlier of (i) the termination of
trading restrictions on the Securities, as notified to the
Company by you, and (ii) the Time of Delivery, not to offer,
sell, contract to sell, or otherwise dispose of any debt
securities of the Company which mature more than one year after
the Time of Delivery and which are substantially similar to the
Securities, without your prior written consent; and
(f) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income,
shareholders' equity and cash flow of the Company and its
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consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial
information of the Company and its subsidiaries for such quarter
in reasonable detail.
6. The Company covenants and agrees with the Underwriter
that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities
under the Act and all other documents in connection with the
preparation, printing and filing of the Registration Statement,
any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivery of copies
thereof to the Underwriter and dealers; (ii) the cost of printing
or producing this Agreement, the Indenture, the Blue Sky
Memorandum and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii)
all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriter in connection with
such qualification and in connection with the Blue Sky survey;
(iv) any fees charged by securities rating services for rating
the Securities; (v) the cost of preparing the Securities; (vi)
the fees and expenses of the Trustee and any agent of the Trustee
and the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities; and (vii) all
other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11
hereof, the Underwriter will pay all of their own costs and
expenses, including the fees of its counsel, transfer taxes on
resale of any of the Securities by it, and any advertising
expenses connected with any offers it may make.
7. The obligations of the Underwriter hereunder shall be
subject, in its discretion, to the condition that all
representations and warranties and other statements of the
Company herein are, at and as of the Time of Delivery, true and
correct, the condition that the Company shall have performed all
of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
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(b) Milbank, Tweed, Hadley & McCloy, counsel for the
Underwriter, shall have furnished to you such opinion or
opinions, dated the Time of Delivery, with respect to the
incorporation of the Company, the validity of the Indenture, the
Securities, the Registration Statement, the Prospectus, and other
related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Paul A. Immerman, Senior Counsel of the Bank of New
York, shall have furnished to you his written opinion or
opinions, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Each of the Company and the Bank has been duly
incorporated and is an existing corporation or banking
corporation, respectively, in good standing under the laws of the
State of New York and the Company has the corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as supplemented or amended.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(iii) The Securities being issued at such Time of
Delivery have been duly authorized, executed, authenticated and
delivered and constitute valid and legally binding obligations of
the Company 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.
(iv) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company on or
prior to the date of such opinion under the Federal laws of the
United States and the laws of the State of New York for the
issuance, sale and delivery of the Securities by the Company to
the Underwriter, in accordance with this Agreement, have been
obtained or made (except that such counsel need express no
opinion with respect to state securities laws).
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The execution and delivery by the Company of the
Indenture and this Agreement do not, and the issuance of the
Securities being issued at such Time of Delivery in accordance
with the Indenture, the sale by the Company of the Securities in
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accordance with this Agreement and the performance by the Company
of its obligations under the Indenture, this Agreement and the
Securities will not violate the Company's Certificate of
Incorporation or By-Laws, in each case as in effect at the date
of such opinion, result in a default under or breach of certain
agreements specified in an annex to such opinion, in each case as
in effect at the date of such opinion, or violate any existing
Federal law of the United States or law of the State of New York
(except that such counsel need express no opinion with respect to
Federal or state securities laws, other antifraud laws,
fraudulent transfer laws, the Employee Retirement Income Security
Act of 1974 and related laws, and insofar as performance by the
Company of its obligations under the Indenture, this Agreement
and the Securities is concerned, such counsel need express no
opinion as to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights).
(vii) Each part of the Registration Statement, when such
part became effective, and the Prospectus, as of its date (other
than the financial statements and other financial data therein,
as to which such counsel need express no opinion), appeared on
their face to be appropriately responsive, in all material
respects relevant to the offering of the Securities, to the
requirements of the Act, the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder;
further, nothing which came to his attention in the course of his
review (as described in such opinion) has caused them to believe
that, insofar as relevant to the offering of the Securities, any
part of the Registration Statement, when such part became
effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, as of its date (other than the financial
statements and other financial data therein, as to which such
counsel need express no opinion), contained any untrue statement
of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
also, nothing that has come to such counsel's attention in the
course of certain procedures (as described in such opinion) has
caused such counsel to believe that the Prospectus, as of the
date and time of delivery of such opinion, contained any untrue
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and such counsel does not know of any litigation or
any governmental proceeding instituted or threatened against the
Company or the Bank that would be required to be disclosed in the
Prospectus and is not so disclosed, and does not know of any
documents that are required to be filed as exhibits to the
Registration Statement and are not so filed or any documents that
are required to be summarized in the Prospectus and are not so
summarized. Such counsel may state that he does not assume any
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responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus except for those made under the captions "Description
of Debt Securities" and "Plan of Distribution" in the Prospectus
and under the captions "Description of Notes" and "Underwriting"
in the Prospectus as supplemented insofar as they relate to
provisions of documents therein described and that he does not
express any opinion or belief as to the financial statements or
other financial data contained in the Registration Statement or
the Prospectus or as to the statements of the eligibility of the
Trustee;
(d) Upon or prior to execution of this Agreement and also
at the Time of Delivery, (i) Deloitte & Touche LLP shall have
furnished to you a letter or letters, dated the respective date
of delivery thereof, in form and substance satisfactory to you,
to the effect set forth in Annex I hereto and (ii) Arthur
Andersen LLP shall have furnished to you a letter or letters,
dated the respective date of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex
II hereto;
(e) Since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries
or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which is in your
judgment after consultation with the Company so material and
adverse as to make it impractical or inadvisable to proceed with
the public offering of the Securities on the terms and in the
manner contemplated in the Prospectus;
(f) On or after the date hereof there shall not have
occurred any downgrading in the rating of any debt securities of
the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of
the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading, of such rating);
(g) On or after the date hereof there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of
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any such event specified in this clause (iii) in your judgment
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in
the manner contemplated by the Prospectus; and
(h) The Company shall have furnished or caused to be
furnished to you at the Time of Delivery certificates of officers
of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of
the Time of Delivery, as to the performance by the Company of all
of its obligations hereunder to be performed at or prior to the
Time of Delivery, as to the matters set forth in subsections (a)
and (e) of this Section and as to such other matters as you may
reasonably request.
8. (a) The Company will indemnify and hold harmless the
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the
Underwriter for any legal or other expenses reasonably incurred
by the Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by the
Underwriter expressly for use therein.
(b) The Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any
-11-
<PAGE>
such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by the
Underwriter expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any
such action or claim as such expenses are incurred.
(e) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation.
No indemnifying party shall without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any
indemnified party is a party and indemnity has been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriter on the other from the
offering of the Securities. If, however, the allocation provided
by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the
-12-
<PAGE>
notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the
Underwriter on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on
the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts
and commissions received by the Underwriter, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on
the one hand or the Underwriter on the other and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company
and the Underwriter agrees that it would not be just and
equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Underwriter shall not be
required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds
the amount of any damages which the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the
Underwriter under this Section 8 shall be in addition to any
liability which the Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his
consent, is named in the Registration Statement as about to
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<PAGE>
become a director of the Company) and to each person, if any, who
controls the Company within the meaning of the Act.
9. If the Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase hereunder
at the Time of Delivery, then this Agreement shall thereupon
terminate and the Company shall be entitled to procure another
party or other parties to purchase the Securities.
10. The respective indemnities, agreements,
representations, warranties and other statements of the Company
and the Underwriter, as set forth in this Agreement or made by
them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the
Underwriter or any controlling person of the Underwriter, or the
Company, or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for the
Securities.
11. If this Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any
liability to the Underwriter with respect to the Securities
except as provided in Section 6 and Section 8 hereof; but, if for
any other reason Securities are not delivered by or on behalf of
the Company as provided herein, the Company will reimburse the
Underwriter for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriter
in making preparations for the purchase, sale and delivery of
such Securities, but the Company shall then be under no further
liability to any Underwriter with respect to such Securities
except as provided in Section 6 and Section 8 hereof.
12. All statements, requests, notices and agreements
hereunder shall be in writing, and shall be delivered or sent by
mail, telex or facsimile transmission if to the Underwriter to
UBS Securities Inc., 299 Park Avenue, New York, New York 10171,
Attention: Richard Messina and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement,
Attention: Secretary. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriter, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers
and directors of the Company and each person who controls the
Company or the Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from the
Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
-14-
<PAGE>
14. Time shall be of the essence of this Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us five counterparts hereof.
Very truly yours,
THE BANK OF NEW YORK
COMPANY, INC.
By: ____________________________
Name: Deno D. Papageorge
Title: Senior Executive
Vice President
Accepted as of the date hereof:
UBS Securities Inc.
By:_____________________________
Name:
Title:
-15-
<PAGE>
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement,
Deloitte & Touche shall provide a comfort letter to the effect
that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder,
and the answer to Item 10 of the Registration Statement is
correct insofar as it relates to them;
(ii) In their opinion, the consolidated financial
statements, and any supplementary financial information and
schedules examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as
applicable, and the published rules and regulations thereunder;
and they have made a review of the interim financial information
of the Company and its subsidiaries for the periods specified in
such letter in accordance with standards established by the
American Institute of Certified Public Accountants;
(iii) On the basis of limited procedures, not constituting an
audit, consisting of a limited review of the unaudited
consolidated financial statements and other information referred
to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date
of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to
their attention that caused then to believe that:
(A) the unaudited information with respect to the
annual consolidated results of operations and financial
position for fiscal years which was included or incorporated
by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year does not agree with the
corresponding amount in the audited consolidated financial
statements for such fiscal years which was included or
incorporated by reference in the Company's Annual Reports on
Form 10-K for the last three fiscal years;
(B) the unaudited information with respect to the
annual consolidated results of operations and financial
position for such fiscal years which was included or
incorporated by reference in the Prospectus does not agree
with the corresponding amounts in the audited consolidated
financial statements for such fiscal years which were
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<PAGE>
included or incorporated by reference in the Company's
Annual Reports on Form 10-K for the last three years;
(C) the unaudited consolidated financial statements
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and published rules and regulations thereunder
or are not fairly presented in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements included or incorporated
by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(D) any unaudited financial data included in the
Prospectus as at any time, or for any period ending, after
the end of the latest interim period covered by a Quarterly
Report on Form 10-Q of the Company do not agree with the
corresponding amounts in the unaudited consolidated
financial statements from which such data are derived;
(E) the unaudited financial data included in the
Prospectus do not agree with the corresponding amounts in
the unaudited financial statements which were not included
in the Prospectus but from which were derived such financial
data;
(F) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
audited financial statements included or incorporated by
reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated shareholders'
equity or allowance for loan losses, in each case as
compared with amounts shown in the latest consolidated
statement of condition included or incorporated by reference
in the Prospectus except in each case for changes which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(G) for the period from the date of the latest
complete consolidated financial statements included or
incorporated by reference in the Prospectus to the specified
date referred to in (F) above there were any decreases in
consolidated net interest income, net interest income after
provision for loan losses, or the total or fully diluted per
share amounts of net income of the Company, in each case as
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<PAGE>
compared with the comparable period of the preceding year,
except in each case for decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter;
(iv) in addition to the examination referred to in their
reports included or incorporated by reference in the Prospectus
and the limited procedures, inspection of minute books, inquiries
and other procedures referred to in subparagraph (iii) above,
they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information specified by the
Underwriter which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), in
exhibits to the Registration Statement specified by the
Underwriter or in documents incorporated by reference in the
Prospectus specified by the Underwriter, and have compared
certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries
and have found them to be in agreement.
-18-
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement,
Arthur Andersen LLP shall provide a comfort letter to the effect
that:
(i) They are independent public accountants with respect to
National Community Banks, Inc. ("NCB") (whose name was changed to
The Bank of New York, N.A. - National Community Division) and its
subsidiaries within the meaning of the Act and the applicable
published rules of the Registration Statement;
(ii) in their opinion, the consolidated financial statements
of NCB and any supplementary financial information and schedules
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder; and they have made a review of
the interim financial information of NCB and its subsidiaries for
the periods specified in such letter in accordance with the
standards established by the American Institute of Certified
Public Accountants;
(iii) on the basis of limited procedures, not constituting an
audit, consisting of a limited review of the unaudited
consolidated financial statements and other information referred
to below, a reading of the latest available interim financial
statements of NCB and its subsidiaries, inspection of the minute
books of NCB and its subsidiaries since the date of the latest
audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of NCB and
its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to
believe that:
the unaudited consolidated financial statements of NCB
incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the Exchange Act and published
rules and regulations thereunder or are not fairly presented
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited consolidated financial statements of NCB for the
most recent fiscal year incorporated by reference in the
Prospectus.
-19-
<PAGE>
EXHIBIT 4
[Face of Security]
CUSIP # 064057AP7
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER
OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND
IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
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 OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE OR THE RELATED OFFICERS
CERTIFICATE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY.
Unless this Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the Company or its agent for registration
of transfer, exchange or payment, and any Security issued upon
registration of transfer of, or in exchange for, or in lieu of,
this Security is registered in the name of CEDE & CO. or such
other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, CEDE & Co., has an interest herein.
THE BANK OF NEW YORK COMPANY, INC.
8.50% SUBORDINATED NOTES DUE DECEMBER 15, 2004
No. --- $200,000,000
THE BANK OF NEW YORK COMPANY, INC., a corporation duly
organized and existing under the laws of the State of New York
(herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & CO. or registered
assigns, the principal sum of Two Hundred Million Dollars
($200,000,000) on December 15, 2004, and to pay interest thereon
from December 13, 1994 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-
annually on June 15 and December 15 in each year, commencing June
15, 1995 at the rate of 8.50% per annum, until the principal
hereof is paid or made available for payment. 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
<PAGE>
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
June 1 or December 1 (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.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The Borough of
Manhattan, The City of New York 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 provided, however,
-------- -------
that at the option of the Company payment of interest may be made
by check mailed to the address of the Person entitled hereto 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 Company has caused this instrument
to be duly executed under its corporate seal.
THE BANK OF NEW YORK COMPANY, INC.
By________________________________
[SEAL]
Attest:
_______________________________
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION
as Trustee
By The Bank of New York
Authenticating Agent
By________________________________
<PAGE>
[Reverse of Security]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an
Indenture, date as of October 1, 1993 (herein called the
"Indenture"), called between the Company and Nationsbank of
Georgia, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee
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.
This Global Security shall be exchangeable for
Securities registered in the names of persons other than the
Depositary or its nominee only if (i) the Depositary
notifies the Company that it is unwilling or unable to
continue as the Depositary or if at any time such Depositary
ceases to be a clearing agency registered under the United
States Securities Exchange Act of 1934, at a time when such
Depositary is required to be so registered in order to act
as Depositary, (ii) the Company executes and delivers to the
Trustee a Company order that the Global Security shall be so
exchangeable or (iii) there shall have occurred and be
continuing an Event of Default, or an event which, with the
giving of notice or the lapse of time, or both, would
constitute an Event of Default, with respect to the
Securities. To the extent that the Global Security is
exchangeable pursuant to the preceding sentence, it shall be
exchangeable for Securities registered in such names as the
Depositary shall direct.
Notwithstanding any other provision herein, the Global
security may not be transferred except as a whole by the
Depositary to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of
such Depositary.
The Indenture contains provisions for defeasances at
any time of certain restricted covenants upon compliance by
the Company with certain conditions set forth therein, which
provisions apply to this Security.
The indebtedness evidenced by the Securities of this
series is, to the extent provided in the Indenture,
subordinated and subject in right of the payment in full of
the principal of (and premium, if any) and interest on all
Senior Indebtedness, as defined in the Indenture, and this
security is issued subject to the provisions of the
<PAGE>
Indenture with respect thereto. Each Holder of this
Security, by accepting the same, agrees that each holder of
Senior Indebtedness, whether created or acquired before or
after the issuance of the Securities of this series, shall
be deemed conclusively to have relied on such provisions in
acquiring and continuing to hold, 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 Company, 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 of this series (as
defined in the Indenture, "Excess Proceeds"), and if, at
such time, any Entitled Person (as defined in the Indenture)
has not received payment in full of all amounts due or to
become due on or in respect of Other Financial Obligations
(as defined in the Indenture), 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 of this
series. 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, agrees to be
bound by the provisions of the Indenture described herein
and authorizes and directs the Trustee to take such action
on his behalf as may be necessary or appropriate to
acknowledge or effectuate the subordination of this Security
and payment of Excess Proceeds as provided in the Indenture
and appoints the Trustee his attorney-in-fact for any and
all such purposes.
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. Payment of the principal of the Securities of
this series may be accelerated only in the case of certain
events involving the bankruptcy, insolvency or
reorganization of the Company. There is no right of
acceleration of payment of the Securities of this series in
the case of a default in the performance of any covenant of
the Company, including payment of principal or interest.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights
of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company 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
5
<PAGE>
time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company 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
hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair
the obligation of the Company, 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 registerable in the Security Register, upon surrender of
this Security for registration of transfer at the office or
agency of the Company 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 Company 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 $1,000
and any integral multiple thereof. As provided in the
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 Company 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 Company, the Trustee and any
agent of the Company 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 Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
6
<PAGE>
The Depositary by acceptance of this Global security
agrees that it will not sell, assign, transfer or otherwise
convey any beneficial interest in this Global Security
unless such beneficial interest is in an amount equal to an
authorized denomination for Securities of this series.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined and
the Indenture shall have the meanings assigned to them in
the Indenture.
7
<PAGE>
EXHIBIT 4.1
THE BANK OF NEW YORK COMPANY, INC.
Officers' Certificate Pursuant to
Sections 201 and 301 of the Indenture
-------------------------------------
Pursuant to resolutions of the Board of Directors,
dated September 14, 1993 (the "Resolutions"), of The Bank of
New York Company, Inc. (the "Company"), and an Action, dated
December 6, 1994 (the "Action"), of an Authorized officer
(as defined in the Resolutions) of the Company pursuant to
the Resolutions and Sections 201 and 301 of the Indenture,
dated as of October 1, 1993 (the "Indenture"), between the
Company and Nationsbank of Georgia, National Association, as
Trustee (the "Trustee"), the undersigned certify that the
terms of a series of Securities established pursuant to the
Resolutions, the Action and Section 301 of the Indenture
shall be as follows (capitalized terms not defined herein
shall have the meanings assigned to them in the Indenture or
the Prospectus, dated October 8, 1993, and the Prospectus
Supplement, dated December 6, 1994):
(1) The title of the Securities of such series is
"8.50% Subordinated Notes due December 15, 2004" (the
"Notes").
(2) The aggregate principal amount of the Notes which
may be authenticated and delivered under the Indenture shall
be $300,000,000 (except for Notes authenticated and
delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 304,
305, 306, 906 or 1107 of the Indenture and except for any
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Notes which, pursuant to Section 303, are deemed never to
have been delivered thereunder).
(3) Each Note shall mature, and the principal amount
thereof shall be payable, on December 15, 2004.
(4) The rate at which each Note shall bear interest
shall be 8.50% per annum. Each Note shall bear interest
from December 13, 1994 or from the last date to which
payment of interest has been made or duly provided for.
Interest on the Notes shall be payable semi-annually on June
15 and December 15 of each year (each an "Interest Payment
Date"), commencing June 15, 1995. Interest shall be payable
to the person in whose name a Note (or any Predecessor
Security, as defined in the Indenture) is registered at the
close of business on the June 1 or December 1 (each a
"Regular Record Date"), as the case may be, next preceding
each Interest Payment Date.
(5) The Notes may not be redeemed by the Company prior
to Maturity.
(6) The Notes will not have the benefit of any sinking
fund.
(7) The Notes will be subject to Section 1403 of the
Indenture.
(8) The Notes shall be issued initially in the form of
one or more permanent Global Notes (collectively, the
"Global Note") and the Depositary for such Global Note shall
initially be The Depository Trust Company (the
"Depositary").
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Except as otherwise set forth herein, in the Indenture
or in the Global Note, owners of beneficial interests in the
Note evidenced by the Global Note will not be entitled to
any rights under the Indenture with respect to the Global
Note, and the Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the
owner of the Global Note for all purposes whatsoever.
The Depositary shall be a clearing agency registered
under the Exchange Act. Initially, the Global Note shall be
issued to the Depositary and registered in the name of Cede
& Co., as the nominee of the Depositary.
(9) The Company's obligations under the Notes shall
rank pari passu in right of payment with other Subordinated
Debt Securities and with the Existing subordinated
Indebtedness, subject to the obligations of the Holder of
Notes to pay over any Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations as provided in the
Subordinated Indenture.
(10) The Notes will be substantially in the form of
Annex A attached hereto, with such modifications thereto as
may be approved by an Authorized Officer.
IN WITNESS WHEREOF, the undersigned, hereto duly
authorized, have duly signed, and
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delivered or caused to be delivered to the Trustee under the
Indenture, this Officers' Certificate.
Dated: December 6, 1994
By: /s/ Deno D. Papageorge
-----------------------
Deno D. Papageorge
Senior Executive Vice
President
By: /s/ Charles E. Rappold II
--------------------------
Charles E. Rappold II
Secretary
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EXHIBIT 5
THE BANK OF NEW YORK
ONE WALL STREET
NEW YORK, NEW YORK 10286
December 6, 1994
The Bank of New York Company, Inc.
48 Wall Street,
New York, New York 10286.
Dear Sirs:
In connection with the registration under the
Securities Act of 1933 (the "Act") of $300,000,000 principal
amount of 8.50% Subordinated Notes due December 15, 2004
(the "Securities") of The Bank of New York Company, Inc., a
New York corporation (the "Company"), the undersigned, as
your counsel, has 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.
Upon the basis of such examination, I advise you that,
in my opinion, when the Securities have been duly executed
and authenticated in accordance with the Indenture relating
to the Securities and issued and sold as contemplated in the
Registration Statement, the Securities will constitute valid
and legally binding obligations of the Company, 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.
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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.
I have relied as to certain matters on information
obtained from public officials, officers of the Company and
other sources believed by me to be responsible, and I have
assumed that the Indenture has been duly authorized,
executed and delivered by the Trustee thereunder, an
assumption which I have not independently verified.
I hereby consent to the filing of this opinion as an
exhibit to the Company's Current Report on Form 8-K, dated
December 6, 1994 which upon filing will be incorporated by
reference in the Prospectus dated October 8, 1993 as
supplemented by the Prospectus Supplement dated December 6,
1994 relating to the Securities and to the reference to me
under the heading "Validity of Notes" in the Prospectus
Supplement. 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,
Paul A. Immerman
Senior Counsel-The Bank of New York
