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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): August 8, 1995
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 Subordinated Retail Medium-Term Notes (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
Distribution Agreement, dated August 1, 1995, between the
Company and Smith Barney, Inc., (the "Distribution
Agreement"); the Forms of Notes; 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 Distribution Agreement, dated August 1,
1995 among the Registrant and Smith Barney, Inc.,
as Agent.
4.1 Form of Registrant's Global Medium Term Fixed Rate Note.
4.2 Form of Registrant's Global Medium Term Floating Rate Note.
4.3 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 5)
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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: August 8, 1995
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 Distribution Agreement, dated
August 1, 1995 among the Registrant and
Smith Barney, Inc., Agent.
4.1 Form of Registrant's Global Medium-Term Fixed Rate Note.
4.2 Form of Registrant's Global Medium-Term Floating Rate Note
4.3 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 5)
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EXHIBIT 1
THE BANK OF NEW YORK COMPANY, INC.
Retail Medium-Term Note/SM/ Securities
Subordinated Medium-Term Notes
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
August 1, 1995
Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
The Bank of New York Company, Inc., a New York corporation (the "Company"),
confirms its agreement with Smith Barney Inc. (the "Agent") with respect to the
issue and sale by the Company of its Subordinated Retail Medium-Term Notes,
Series C described herein (the "Notes"). The Notes are to be issued pursuant to
an indenture (the "Indenture") dated as of October 1, 1993 between the Company
and NationsBank of Georgia, National Association, as trustee (the "Trustee").
As of the date hereof, the Company has authorized the issuance and sale of up to
an aggregate initial offering price not to exceed U.S. $450,000,000 (or its
equivalent, based upon the applicable exchange rate at the time of issuance, in
such foreign currencies or currency units as the Company shall designate at the
time of issuance) of Notes to or through the Agent pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to time
authorize the issuance of additional Notes and that such additional Notes may be
sold through or to the Agent pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company directly
to purchasers, in which case the Agent will act as agent of the Company in
soliciting Note purchasers, and (as may from time to time be agreed to by the
Company and the Agent) to the Agent as principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-50333) for the registration
of, among other securities, debt securities, including the Notes, under the
Securities Act of 1933 (the "1933 Act") and the offering thereof from time to
time in
________________
/SM/ Servicemark of Smith Barney Inc.
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accordance with Rule 415 of the rules and regulations of the SEC under the 1933
Act (the "1933 Act Regulations"). Such registration statement has been declared
effective by the SEC and the Indenture has been qualified under the Trust
Indenture Act of 1939 (the "1939 Act"). Such registration statement (and any
further registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which this
Agreement is included as an exhibit) and the prospectus constituting a part of
Registration Statement No. 33-50333, and any prospectus supplements relating to
the Notes, including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934 (the "1934 Act") or the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the "Prospectus",
respectively, except that if any revised prospectus shall be provided to the
Agent by the Company for use in connection with the offering of the Notes which
is not required to be filed by the Company pursuant to Rule 424(b) of the 1933
Act Regulations, the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agent for such use.
SECTION 1. Appointment as Agent.
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(a) Appointment of Agent. Subject to the terms and conditions stated
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herein, the Company hereby appoints the Agent as its agent for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that
whenever the Company determines to sell Notes directly to the Agent as principal
for resale to others, it will enter into a Terms Agreement (hereafter defined)
relating to such sale in accordance with the provisions of Section 3(b) hereof.
The Agent is authorized to appoint sub-agents or to engage the services of any
other broker or dealer in connection with the offer or sale of the Notes. The
Company may also sell Notes directly to investors on its own behalf including to
agents that are not party to this Agreement and may enter into agreements
similar to this Agreement with other parties, provided, however, that the
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Company shall notify the Agent upon entering into any such agreement that is
substantially similar to this Agreement.
(b) Best Efforts Solicitations; Rights to Reject Offers. Upon receipt of
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instructions from the Company, the Agent will use its best efforts to solicit
purchases of such principal amount of the Notes as the Company and the Agent
shall agree upon from time to time during the term of this Agreement, it being
understood that the Company shall not approve the solicitation of purchases of
Notes in excess of the amount which shall be authorized by the Company from time
to time. The Agent will communicate to the Company, orally or in writing, each
offer to purchase Notes, other than those offers rejected by the Agent. The
Agent shall have the
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right, in its discretion reasonably exercised, to reject any proposed purchase
of Notes, as a whole or in part, and any such rejection shall not be deemed a
breach of the Agent's agreement contained herein. The Company may accept or
reject any proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agent; Purchases as Principal. In soliciting
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purchases of the Notes on behalf of the Company, the Agent shall act solely as
agent for the Company and not as principal. The Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by the Agent and accepted by the
Company. The Agent shall not have any liability to the Company in the event any
such purchase is not consummated for any reason. The Agent shall not have any
obligation to purchase Notes from the Company as principal, but the Agent may
agree from time to time to purchase Notes as principal. Any such purchase of
Notes by the Agent as principal shall be made pursuant to a Terms Agreement in
accordance with Section 3(b) hereof.
(d) Reliance. The Company and the Agent agree that any Notes the placement
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of which the Agent arranges shall be placed by the Agent, and any Notes
purchased by the Agent shall be purchased, in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to the Agent as of the date hereof,
as of the date of each acceptance by the Company of an offer for the purchase of
Notes (whether through the Agent as agent or to the Agent as principal), as of
the date of each delivery of Notes (whether through the Agent as agent or to the
Agent as principal (the date of each such delivery to the Agent as principal
being hereafter referred to as a "Settlement Date"), and as of the times
referred to in Section 7(b) hereof (in each case the "Representation Date") as
follows:
(i) Due incorporation. Each of the Company and The Bank of New
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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.
(ii) Registration Statement and Prospectus. The Registration
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Statement and the Prospectus, at the time the Registration Statement became
effective, conformed, and as of the applicable Representation Date will
conform, in all
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material respects to the requirements of the 1933 Act, the rules and
regulations of the SEC thereunder (the "Regulations") and the 1939 Act.
The Registration Statement, at the time the Registration Statement became
effective, did not, and as of the applicable Representation Date 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. The Prospectus at the time the Registration
Statement became effective did not, and as of the applicable Representation
Date will not, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
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subsection shall not apply to any statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Agent expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement which shall constitute the
Statement of Eligibility under the 1939 Act ("Form T-1") of the Trustee.
(iii) Incorporated Documents. The documents incorporated by
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reference in the Prospectus, at the time they were or hereafter are filed
with the SEC, conformed and will conform in all material respects to the
requirements of the 1933 Act and the Regulations or the 1934 Act and the
rules and regulations thereunder (the "1934 Act Regulations"), as
applicable, and, when read together and with the other information in the
Prospectus, at the time the Registration Statement became, and any
amendments thereto become, effective, did not 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,
in the light of the circumstances under which they were or are made, not
misleading; provided, however, that the representations and warranties in
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this subsection shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished to the Company
in writing by the Agent expressly for use in the Registration Statement or
Prospectus.
(iv) Material Change. Since the respective dates as of which
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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 credit-worthiness
of the Company and its subsidiaries on a consolidated basis, other than as
set forth or contemplated in the Prospectus.
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(v) No Defaults; Regulatory Approvals. The issue and sale of the
---------------------------------
Notes and the compliance by the Company with all of the provisions of the
Notes, the Indenture, this Agreement and each applicable Terms Agreement,
if any, and the consummation of the transactions contemplated herein and
therein will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to the terms of, any
indenture, contract, mortgage, deed of trust, loan agreement, note, lease
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
by the Company of the provisions of the Certificate of Incorporation, as
amended, 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 its properties, and
no consent, approval, authorization, order, registration or qualification
of or with any court or any such regulatory authority or other governmental
agency or body is required for the issue and sale of the Notes or the
consummation of the other transactions contemplated by this Agreement or
any Terms Agreement or the Indenture, except such as may be required under
the 1933 Act, the 1939 Act and the Regulations 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 Notes by the Agent.
(vi) Authorization and Validity. The Notes have been duly
--------------------------
authorized for issuance and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and of the Indenture against payment of the consideration
therefor specified herein, the Notes will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized and
qualified under the 1939 Act and 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 Indenture conforms and the
Notes of any particular issuance of Notes will conform to the descriptions
thereof in the Prospectus.
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(vii) Capitalization. All of the issued shares of capital stock of
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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.
(viii) Legal Proceedings. Except as otherwise disclosed in the
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Prospectus, 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.
(b) Additional Certifications. Any certificate signed by any officer of
-------------------------
the Company and delivered to the Agent or to counsel for the Agent in connection
with an offering of Notes or the sale of Notes to the Agent as principal shall
be deemed a representation and warranty by the Company to the Agent as to the
matters covered thereby on the date of such certificate and at each
Representation Date referred to in Section 2(a) hereof subsequent thereto.
SECTION 3. Solicitations as Agent; Purchases as Principal.
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(a) Solicitations as Agent. On the basis of the representations and
----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, the Agent agrees, as an agent of the Company, to use its best efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agent will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agent that such
solicitation may be resumed.
The Company agrees to pay the Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by the Agent as set
forth in Schedule A hereto. The Agent may re-allow any portion of the
commission payable pursuant hereto to dealers or purchasers in connection with
the offer and sale of any Notes, provided, however, that the Agent
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shall obtain the prior written consent of the Company to any such reallowance.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the Agent and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance by
the Company of an offer for the purchase of Notes. Except as may be otherwise
provided in such supplement to the Prospectus (i.e., in the case of foreign
----
currency denominated Notes) the Notes will be issued in denominations of U.S.
$1,000 or any amount in excess thereof which is an integral multiple of U.S.
$1,000. All Notes sold through the Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Company and the Agent.
(b) Purchases as Principal. Each sale of Notes to the Agent as principal
----------------------
shall be made in accordance with the terms contained herein and (unless the
Company and the Agent shall otherwise agree) pursuant to a separate agreement
which will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, the Agent. Each such separate agreement (which may be an
oral agreement promptly confirmed in writing as described below) between the
Agent and the Company is herein referred to as a "Terms Agreement". Unless the
context otherwise requires, each reference contained herein to "this Agreement"
shall be deemed to include any applicable Terms Agreement between the Company
and the Agent. Each such Terms Agreement, whether oral (and promptly confirmed
in writing, which may be by facsimile transmission) or in writing, shall be with
respect to such information (as applicable) as is specified in Annex I hereto.
The Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement (or otherwise) shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by the Agent
pursuant thereto, the price to be paid to the Company for such Notes (which, if
not so specified in a Terms Agreement, shall be at a discount equivalent to the
applicable commission set forth on Schedule A to the applicable Terms
Agreement), the time and place of delivery of and payment for such Notes, any
provision relating to rights of and defaults by purchasers acting together with
the Agent in the reoffering of the Notes and such other provisions (including
further terms of the Notes) as may be mutually agreed upon. The Agent is
authorized to utilize a selling or dealer group in connection with the resale of
the Notes purchased, provided, however, that the Agent shall obtain the prior
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written consent of the Company to such utilization. Such Terms Agreement shall
also specify the requirements, if any, for the opinions of counsel, letters of
the Company's independent
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public accountants and officer's certificate pursuant to Sections 7(b), 7(c) and
7(d) hereof.
(c) Administrative Procedures. Administrative procedures with respect to
-------------------------
the sale of Notes shall be agreed upon from time to time by the Agent and the
Company (the "Procedures"). The Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
SECTION 4. Covenants of the Company.
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The Company covenants with the Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agent
------------------------
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the SEC for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the SEC with respect to the Registration Statement
or the Prospectus, (iv) of any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the Agent
----------------------------------
notice of its intention to file or prepare any additional registration statement
with respect to the registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (other
than an amendment or supplement providing solely for a change in the interest
rate of the Notes), whether by the filing of documents pursuant to the 1934 Act,
the 1933 Act or otherwise, and will furnish the Agent with copies of any such
amendment or supplement or other documents so filed upon the filing thereof.
(c) Copies of the Registration Statement and the Prospectus. The Company
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will deliver to the Agent as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agent may
reasonably request. The Company will furnish to the Agent as many copies of the
Prospectus (as amended or supplemented) as the Agent shall
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reasonably request so long as the Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes.
(d) Revisions of Prospectus -- Material Change. If at any time when the
------------------------------------------
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Notes any event shall occur or condition exist as a result of which it is
necessary to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary at any such time to amend
or supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the Regulations, immediate notice shall
be given, and confirmed in writing, to the Agent to cease the solicitation of
offers to purchase the Notes in its capacity as agent and to cease sales of any
Notes it may then own as principal, and the Company will promptly prepare and
file with the SEC such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
comply with such requirements.
(e) Prospectus Revisions -- Periodic Financial Information. On or prior to
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the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, and prior to the filing of the
Forms 10-Q or 10-K with respect to such quarters or fiscal years, the Company
shall furnish such information to the Agent, confirmed in writing, and shall
cause the Prospectus to incorporate by reference capsule financial information
with respect to the results of operations of the Company for the period between
the end of the preceding fiscal year and the end of such quarter or for such
fiscal year, as the case may be, and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding of such
amounts or as shall be required by the 1933 Act or the Regulations; provided,
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however, that if on the date of such release the Agent shall have suspended
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solicitation of purchases of the Notes in its capacity as agent pursuant to a
request from the Company, and the Agent shall not then hold any Notes as
principal, the Company shall not be obligated so to amend or supplement the
Prospectus until such time as the Company shall determine that solicitation of
purchases of the Notes should be resumed or shall subsequently enter into a new
Terms Agreement with the Agent, and provided further that this covenant shall
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not
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obligate the Company to incorporate financial information or discussion other
than that contained in its regular earnings press release with respect to such
quarter or year.
(f) Prospectus Revisions -- Audited Financial Information. On or prior to
-----------------------------------------------------
the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate
by reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the Regulations; provided,
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however, that if on the date of such release the Agent shall have suspended
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solicitation of purchases of the Notes in its capacity as agent pursuant to a
request from the Company, and the Agent shall not then hold any Notes as
principal, the Company shall not be obligated so to amend or supplement the
Prospectus until such time as the Company shall determine that solicitation of
purchases of the Notes should be resumed or shall subsequently enter into a new
Terms Agreement with the Agent.
(g) Earnings Statements. The Company will make generally available to its
-------------------
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement of the Company and
its subsidiaries (which need not be audited) in form complying with the
provisions of Rule 158 under the 1933 Act, covering each twelve-month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
-----------------------
with the Agent, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agent may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
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that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agent of the
receipt by the Company of any notification with respect to the
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suspension of the qualification of the Notes for sale in any such state or
jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(i) 1934 Act Filings. The Company, during the period when the Prospectus
----------------
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
(j) Stand-Off Agreement. Between the date of any Terms Agreement and the
-------------------
Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior consent of the Agent, which consent shall not be unreasonably
withheld, offer or sell in the United States, or enter into any agreement to
sell in the United States, any debt securities of the Company (other than the
Notes) which are substantially similar to the Notes except as may otherwise be
provided in any such Terms Agreement.
(k) Annual Reports. The Company will furnish to the Agent, at the earliest
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time the Company makes the same available to others, copies of its annual
reports and other financial reports furnished or made available to the public
generally.
SECTION 5. Conditions of Obligations.
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The obligations of the Agent to solicit offers to purchase the Notes as
agent of the Company, the obligations of any purchasers of the Notes sold
through the Agent as agent, and any obligation of the Agent to purchase Notes
pursuant to a Terms Agreement (or otherwise), will be subject to the accuracy of
the representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date the program commences (the "Commencement
--------------
Date"), the Agent shall have received the following legal opinions, dated as of
the date hereof and in form and substance satisfactory to the Agent:
(1) Opinion of Company Counsel. The opinion of Paul A. Immerman,
--------------------------
Esq., Senior Counsel to the Company, 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
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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 1939 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 Notes have been duly authorized and established
in conformity with the Indenture, and when the terms of a particular
Note and of its issuance and sale have been duly authorized and
established by all necessary corporate action in conformity with the
Indenture and such Note has been duly prepared, executed,
authenticated and issued in accordance with the Indenture and
delivered against payment in accordance with this Agreement, such Note
will constitute 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.
(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 Notes by the Company to or through the Agent, 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 completion, execution and
issuance of each particular Note in accordance with the Indenture, the
sale by the Company of such Note in accordance with this Agreement and
the performance by the Company of its obligations under the Indenture,
this Agreement and such Note will
12
<PAGE>
not violate the Company's Certificate of Incorporation, or By-Laws, 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
laws that restrict transactions between U.S. persons and citizens of
foreign countries or other jurisdictions and related laws, and insofar
as performance by the Company of its obligations under the Indenture,
this Agreement and the Notes 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 (other than the financial
statements and other financial and statistical 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 Notes, to the requirement of the 1933 Act, the 1939
Act and the applicable rules and regulations of the SEC thereunder;
further, nothing which came to their attention in the course of their
review (as described in such opinion) has caused them to believe that,
insofar as relevant to the offering of the Notes, 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 (other than the
financial statements and other financial and statistical data therein,
as to which such counsel need express no opinion) contained or
contains any untrue statement of a material fact or omitted or omits
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 do 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 do not know of any documents that are
required to be filed as exhibits to the Registration Statement and are
not so filed or of any documents that are required to be summarized in
the Prospectus and are not so summarized. Such counsel may state that
they do not assume any responsibility for the
13
<PAGE>
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
Retail Medium-Term Notes" and "Plan of Distribution of Retail Medium-
Term Notes" in the Prospectus Supplement insofar as they relate to
provisions of documents therein described and that they do 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 statement of the eligibility of the Trustee.
In providing such opinion, such counsel may assume, in connection with the
opinion set forth in paragraph (iii) above, that at the time of issuance, sale
and delivery of each particular Note the authorization of the Notes will not
have been modified or rescinded and, with respect to each Note, that such Note
will conform to the draft form of the Notes examined by such counsel. Such
counsel may also assume in connection with such opinion that at the time of the
issuance, sale and delivery of each particular Note there will not have occurred
any change in law affecting the validity, legally binding character or
enforceability of such Note and that the issuance, sale and delivery of such
Note, all of the terms of such Note and the performance by the Company of its
obligations thereunder will comply with applicable law and with each requirement
or restriction imposed by any court or governmental body having jurisdiction
over the Company and will not result in a default under or a breach of any
agreement or instrument then binding upon the Company. Such counsel may state
in rendering the opinion set forth in paragraph (iii) above that, as of the date
of such opinion, a judgment for money in an action based on Notes denominated in
foreign currencies or currency units in a Federal or state court in the United
States ordinarily would be enforced in the United States only in United States
dollars and that the date used to determine the rate of conversion of the
foreign currency or currency unit in which a particular Note is denominated into
United States dollars will depend upon various factors, including which court
renders the judgment. In the case of a Note denominated in a foreign currency,
a state court in the State of New York rendering a judgment on such Note would
be required under Section 27 of the New York Judiciary Law to render such
judgment in the foreign currency in which the Note 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.
(2) Opinion of Special Counsel to the Company. The opinion of
-----------------------------------------
Sullivan & Cromwell, special counsel to the
14
<PAGE>
Company, as to the Registration Statement, the Prospectus and such other
matters as the Agent may reasonably request.
(3) Opinion of Counsel to the Agent. The opinion of Brown & Wood,
-------------------------------
counsel to the Agent, with respect to such matters as the Agent may
reasonably request.
(b) Officer's Certificate. On the Commencement Date the Agent shall have
---------------------
received a certificate of an officer of the Company satisfactory to the Agent,
dated as of the date hereof, as to the accuracy of the representations and
warranties of the Company herein, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to the date hereof and as
to such other matters as the Agent may reasonably request, and that no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or threatened by the
SEC.
(c) Comfort Letter. On the Commencement Date and on each Settlement Date
--------------
relating to a Terms Agreement if called for by such Terms Agreement, the Agent
shall have received letters from the Company's independent public accountants,
dated as of the date hereof or such Settlement Date and in form and substance
satisfactory to the Agent, to the effect set forth in Annex II.
(d) At the Commencement Date and at each Settlement Date with respect to
any applicable Terms Agreement, your counsel shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Notes as herein
contemplated; and all proceedings taken by the Company in connection with the
issuance and sale of the Notes as herein contemplated shall be satisfactory in
form and substance to you and your counsel.
(e) Conditions to Purchase. Prior to such solicitation or purchase, as the
----------------------
case may be, other than a purchase by the Agent pursuant to a Terms Agreement:
(i) there shall not have occurred 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, as amended or supplemented
at the time of such solicitation or at the time such offer to purchase was
made, that, in the judgment of the Agent after consultation with the
Company, is material and adverse and that makes it, in the judgment of the
Agent, impracticable to market the Notes or deliver Notes to
15
<PAGE>
the purchaser on the terms and in the manner contemplated by the
Prospectus, as so amended or supplemented; and
(ii) 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).
except, in each case described in paragraph (i) or (ii) above, as disclosed to
the Agent in writing by the Company prior to such solicitation or, in the case
of a purchaser of Notes, as disclosed to the relevant purchaser before the offer
to purchase such Notes was made.
The Company acknowledges that the Agent shall not have any duty or
obligation to exercise the judgment described in paragraphs (i) and (ii) above
on behalf of any purchaser of Notes other than the Agent.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
Agent, any applicable Terms Agreement) may be terminated by the Agent by notice
to the Company at any time, and any such termination shall be without liability
of any party to any other party, except that the covenant under Section 4(g)
hereof, the provisions concerning payment of expenses under Section 9 hereof,
the indemnity and contribution agreement set forth in Section 8 hereof, the
provisions concerning the representations, warranties and agreements to survive
delivery of Section 10 hereof and the provisions set forth under "Parties" of
Section 14 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through
----------------------------------------------
the Agent.
---------
Delivery of Notes sold through the Agent as agent shall be made by the
Company to the Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure shall have occurred for any reason other than default by the Agent to
perform its obligations under this
16
<PAGE>
Agreement, the Company will reimburse the Agent on an equitable basis for its
loss of the use of funds during the period when the funds were credited to the
account of the Company.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with the Agent that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
-----------------------------------------------
of an offer for the purchase of Notes, and each delivery of Notes to the Agent
pursuant to a Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to the Agent pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or to the Agent, of the Note
or Notes relating to such acceptance or sale, as the case may be, as though made
at and as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that the Registration
-----------------------------------
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates of
Notes or a change in the principal amount of Notes remaining to be sold or
similar changes, and, unless the Agent shall otherwise specify, other than by an
amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes) or there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities under the
Registration Statement, unless the Agent shall otherwise specify) or, if
required pursuant to the terms of a Terms Agreement, the Company sells Notes to
the Agent pursuant to a Terms Agreement, the Company shall furnish or cause to
be furnished to the Agent forthwith a certificate dated the date of filing with
the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale as the case may be, in form satisfactory to
the Agent to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof which were last furnished to the Agent are
true and correct at the time of such amendment, supplement, filing or sale, as
the case may be, as though made at and as of such time (except, that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the
17
<PAGE>
certificate referred to in said Section 5(b), modified as necessary to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate, provided, however, that if the Agent has
-------- -------
suspended solicitation of purchases of the Notes in its capacity as agent
pursuant to a request from the Company, and the Agent shall not hold any Notes
as principal, the Company shall not be obligated so to furnish the Agent with a
certificate or certificates until such time as the Company shall determine that
the solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new Terms Agreement with the Agent.
(c) Subsequent Delivery of Legal Opinions. Each time that the Registration
-------------------------------------
Statement or the Prospectus shall be amended or supplemented or there is filed
with the SEC any document incorporated by reference into the Prospectus (other
than by an amendment or supplement (i) providing solely for a change in the
interest rates of the Notes or a change in the principal amount of Notes
remaining to be sold or similar changes or (ii) setting forth or incorporating
by reference financial statements or other information as of and for a fiscal
quarter, and, unless the Agent shall otherwise specify, other than by an
amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes) or, if so indicated in the applicable Terms
Agreement, the Company sells Notes to the Agent pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished forthwith to the Agent and
counsel to the Agent a written opinion of Paul A. Immerman, Esq., Senior Counsel
to the Company, or other counsel satisfactory to the Agent, dated the date of
delivery of such opinion, in form satisfactory to the Agent, of the same tenor
as the opinion referred to in Section 5(a)(1) hereof, and such other opinions
provided for in Section 5(a) as the Agent may request, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agent shall furnish the
Agent with a letter to the effect that the Agent may rely on such last opinion
to the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance); provided, however,
-------- -------
that if the Agent shall have suspended solicitation of purchases of the Notes in
its capacity as agent pursuant to a request from the Company, and the Agent
shall not hold any Notes as principal the Company shall not be obligated so to
furnish the Agent with an opinion or opinions until such time as the Company
shall determine that the solicitation of purchases of the Notes should be
resumed or shall subsequently enter into a new Terms Agreement with the Agent.
18
<PAGE>
(d) Subsequent Delivery of Comfort Letters. Each time that the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information or, if so indicated in the applicable Terms Agreement, the
Company sells Notes to the Agent pursuant to a Terms Agreement, the Company
shall cause the Company's independent public accountants forthwith to furnish
the Agent a letter, dated the date of filing of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to the Agent, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Annex II hereto but modified to relate to
the Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, and of the same general tenor as the portions of the letter
referred to in clauses (iii) and (iv) of said Annex II with such changes as may
be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company; and provided,
--------
further, that if the Registration Statement or the Prospectus is amended or
-------
supplemented solely to include financial information as of and for a fiscal
quarter, the Company's independent public accountants may limit the scope of
such letter to the unaudited financial statements included in such amendment or
supplement unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the reasonable
judgment of the Agent, such letter should cover such other information;
provided, however, that if the Agent shall have suspended solicitation of
-------- -------
purchases of the Notes in its capacity as agent pursuant to a request from the
Company, and the Agent shall not hold any Notes as principal, the Company shall
not be obligated so to furnish the Agent with a letter or letters until such
time as the Company shall determine that the solicitation of purchases of the
Notes should be resumed or shall subsequently enter into a new Terms Agreement
with the Agent in which such letter or letters are required.
SECTION 8. Indemnity and Contribution.
--------------------------
(a) The Company will indemnify and hold harmless the Agent against any
losses, claims, damages or liabilities to which the Agent may become subject,
under the 1933 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 the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) and any other prospectus relating to the Notes,
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
19
<PAGE>
necessary to make the statements therein not misleading, and will reimburse the
Agent for any legal or other expenses reasonably incurred, as incurred, by the
Agent in connection with investigating or defending any such action or claim;
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 the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) and any other prospectus
relating to the Notes, or any amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by the Agent
expressly for use therein.
(b) The Agent will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the 1933 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 the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) and any other prospectus relating to the Notes,
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 the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) and any other prospectus relating to the Notes,
or any amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by the Agent expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred, as incurred, by the Company in connection with
investigating or defending any such action or claim.
(c) 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
20
<PAGE>
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnifying 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.
(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 Agent on the other from the offering of
the Notes to which such loss, claim, damage or liability (or action in respect
thereof) relates. 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 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 Agent 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 Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
commissions or discounts received by the Agent in respect thereof. 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
or the Agent and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Agent agree 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
21
<PAGE>
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 Agent
shall not be required to contribute any amount in excess of the amount by which
the total public offering price at which the Notes purchased by or through it
were sold exceeds the amount of any damages which the Agent 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 1933 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 the
Agent within the meaning of the 1933 Act; and the obligations of the Agent under
this Section 8 shall be in addition to any liability which the Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the 1933 Act.
SECTION 9. Payment of Expenses.
-------------------
The Company covenants and agrees with the Agent that, unless otherwise
agreed, 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 Notes under the 1933 Act and all other
expenses 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 delivering of copies
thereof to you and dealers; (ii) the cost of typing and reproducing this
Agreement, any Terms Agreement, the Indenture, any Blue Sky Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Notes; (iii) all expenses in connection with the qualification of the Notes
for offering and sale under state securities laws as provided in Section 4(h)
hereof, including the reasonable fees and disbursements of counsel for the Agent
incurred from time to time in connection with the transactions contemplated
hereby; (iv) any fees charged by securities rating services for rating the
Notes; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc., of the terms of the sale of the Notes;
(vi) the cost of preparing the Notes; (vii) 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
22
<PAGE>
with the Indenture and the Notes and (viii) 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 and Section 8 hereof, the Agent will pay all
of its own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Notes by them, and any advertising expenses
connected with any offers they may make.
SECTION 10. Representations, Warranties and Agreements
------------------------------------------
to Survive Delivery.
-------------------
All representations, warranties and agreements contained in this Agreement
or any Terms Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agent or any
controlling person of the Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 11. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
-----------------------------
Agreement) may be terminated for any reason, at any time by either the Company
as to the Agent or the Agent as to itself upon the giving of 30 days' written
notice of such termination to the Agent or the Company, as the case may be.
(b) Termination of a Terms Agreement. The Agent may terminate any Terms
--------------------------------
Agreement, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has been, since the date of such
Terms Agreement or since the respective dates as of which information is given
in the Registration Statement, 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 the judgment of the Agent after
consultation with the Company so material and adverse as to make it
impracticable or inadvisable to proceed with the delivery of the Notes to which
such Terms Agreement relates on the terms and in the manner contemplated in the
Prospectus and such Terms Agreement or (ii) if subsequent to the date of the
Terms Agreement there has occurred any of the following: (A) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange; (B) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities or a banking moratorium
by the relevant authority in
23
<PAGE>
the country or countries of origin of any foreign currency or currencies in
which the Notes are denominated or payable; or (C) any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which shall be such as to make it, in the judgment of the Agent after
consultation with the Company, impracticable to market the Notes or enforce
contracts for the sale of the Notes to which such Terns Agreement relates on the
terms and in the manner contemplated in the Prospectus and such Terms Agreement;
or (iii) if subsequent to the date of the Terms Agreement there has 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).
(c) General. In the event of any such termination with respect to the
-------
Agent, neither the Company nor the Agent will have any liability to the other,
except that (i) the Agent shall be entitled to any commission earned in
accordance with the third paragraph of Section 3(a) hereof, (ii) if at the time
of termination (a) the Agent shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not occurred,
the covenants set forth in Sections 4 and 7 hereof shall remain in effect until
such Notes are so resold or delivered, as the case may be, and (iii) the
covenant set forth in Section 4(g) hereof, the provisions of Section 9 hereof,
the indemnity and contribution agreements set forth in Section 8 hereof, and the
provisions of Sections 10, 13 and 14 hereof shall remain in effect.
SECTION 12. Notices.
-------
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
The Bank of New York Company, Inc.
48 Wall Street
New York, New York 10286
Attention: Secretary
Facsimile Number: (212) 495-2546
24
<PAGE>
If to the Agent:
Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Attention:
Facsimile Number: (212)
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 12.
SECTION 13. Governing Law.
-------------
This Agreement and any Terms Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 14. Parties.
-------
This Agreement and any Terms Agreement shall inure to the benefit of and be
binding upon the Agent and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement or any Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Section 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Notes shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Counterparts.
------------
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 counterparts shall together constitute one and the same instrument.
25
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company two counterparts hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Agent and the Company in accordance with its terms.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By:
---------------------------------
Name:
Title:
Accepted as of the date set forth above:
SMITH BARNEY INC.
By:
---------------------------------
Name:
Title:
26
<PAGE>
ANNEX I
THE BANK OF NEW YORK COMPANY, INC.
(A New York corporation)
Subordinated Medium-Term Notes
TERMS AGREEMENT
_________, 19 __
The Bank of New York Company, Inc.
48 Wall Street
New York. New York 10015
Attention:
Re: Distribution Agreement dated August __, 1995
The undersigned agrees to purchase the following principal amount of Notes
with the terms indicated below:
$ ________________________ (or principal amount of other Specified
Currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
27
<PAGE>
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Initial Repayment Date:
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other
than U.S. dollar):
Currency of Payment:
OID Terms:
Additional Terms:
Exceptions, if any, to Section 4(j) of the Distribution Agreement:
[The certificate referred to in Section 7(b) of the Distribution Agreement,
the opinions referred to in Section 7(c) of the Distribution Agreement and the
accountants' letter[s] referred to in Section 7(d) of the Distribution Agreement
shall be delivered as a condition to settlement.]
SMITH BARNEY INC.
By:
----------------------------
Accepted:
THE BANK OF NEW YORK COMPANY, INC.
By:
----------------------------
Title:
28
<PAGE>
Schedule A
<TABLE>
<CAPTION>
Term Commission Rates
---- ----------------
<S> <C>
From 9 months but less than 1 year..... 0.20%
From 1 year but less than 2 years...... 0.40
From 2 years but less than 3 years..... 0.60
From 3 years but less than 4 years..... 0.75
From 4 years but less than 5 years..... 1.00
From 5 years but less than 6 years..... 1.59
From 6 years but less than 7 years..... 2.00
From 7 years but less than 10 years.... 2.25
From 10 years but less than 15 years... 2.50
From 15 years but less than 20 years... 2.75
From 20 years but less than 30* years.. 3.00
</TABLE>
____________
* With respect to each Note with a term in excess of 30 years from the date
of issue, the commission payable to the Agent with respect to each such
Note sold as a result of a solicitation made by the Agent will be agreed to
by the Company and the Agent at the time of such sale.
29
<PAGE>
ANNEX II
Pursuant to Section 5(c) of the Distribution Agreement, the Company's
independent public accountants 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 1933 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 1933 Act or the 1934 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 them
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 amounts 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:
30
<PAGE>
(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 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 1934 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
31
<PAGE>
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 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 Agent 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 Agent or in documents incorporated by reference in the
Prospectus specified by the Agent, 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.
32
<PAGE>
EXHIBIT 4.1
THIS NOTE 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.
IF THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE FOR THE
DEPOSITORY TRUST COMPANY, THEN THE FOLLOWING LEGEND SHALL APPLY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE 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 OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH DEPOSITARY. UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED 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 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.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "ORIGINAL YIELD TO MATURITY" AND
"INITIAL SHORT ACCRUAL PERIOD OID" (COMPUTED UNDER THE EXACT METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT RULES.
ISIN:
CUSIP:
REGISTERED REGISTERED
No.FXR $
THE BANK OF NEW YORK COMPANY, INC.
SUBORDINATED RETAIL MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY
DATE:
%
-------------------- -------- ------------------
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
-------------------- ------------------ ------------------
HOLDER'S OPTIONAL
REPAYMENT DATE(S): TOTAL AMOUNT OF OID: ORIGINAL YIELD TO
MATURITY:
1
<PAGE>
__________________ ___________________ _________________
INITIAL SHORT ACCRUAL ISSUE PRICE: OTHER PROVISIONS:
PERIOD OID:
__________________ ____________________ __________________
The Bank of New York Company, Inc., a New York corporation (the
"Company"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of DOLLARS on the Stated Maturity Date
specified above (except to the extent redeemed or repaid prior to the Stated
Maturity Date), and to pay interest thereon at the Interest Rate per annum
specified above, until the principal hereof is paid or duly made available for
payment, on the fifteenth day of each month (each an "Interest Payment Date") in
each year commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, unless the Original Issue Date occurs
between a Regular Record Date, as defined below, and the next succeeding
Interest Payment Date, in which case commencing on the second Interest Payment
Date succeeding the Original Issue Date, to the registered holder of this Note
on the Regular Record Date with respect to such Interest Payment Date, and on
the Stated Maturity Date shown above (or any Redemption Date as defined below or
any Holder's Optional Repayment Date with respect to which such option has been
exercised, each such Stated Maturity Date, Redemption Date and Holder's Optional
Repayment Date being herein referred to as a "Maturity Date" with respect to the
principal payable on such date). Interest on this Note will accrue from the most
recent Interest Payment Date to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for, from the Original
Issue Date specified above until the principal hereof has been paid or duly made
available for payment. If the Maturity Date or an Interest Payment Date falls on
a day which is not a Business Day as defined below, principal, premium, if any,
or interest payable with respect to such Maturity Date or Interest Payment Date
will be paid on the next succeeding Business Day with the same force and effect
as if made on such Maturity Date or Interest Payment Date, as the case may be,
and no interest on such payment shall accrue for the period from and after such
Maturity Date or Interest Payment Date, as the case may be. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions, be paid to the Person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the Regular Record Date for such interest, which shall be the first day of
the month (whether or not a Business Day) next preceding such Interest Payment
Date; provided, however, that interest payable on any Maturity Date will be
-------- -------
payable to the Person to whom the principal hereof shall be payable. 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
2
<PAGE>
be paid to the Person in whose name this Note (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 Paying and
Authenticating Agent (referred to below), notice whereof shall be given to the
Holder of this Note not less than 10 days prior to such Special Record Date, or
may be paid at any time in any other lawful manner, all as more fully provided
in the Indenture (referred to below).
As used herein, "Business Day" means any day other than a Saturday,
Sunday, legal holiday or other day on which banking institutions in The City of
New York are authorized or required by law, regulation or executive order to
close.
Payment of the principal of, premium, if any, and interest due on this
Note will be made in immediately available funds 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 payment of interest on any Interest Payment Date other than the
-------
Maturity Date may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register. A Holder of not less than $10,000,000 aggregate principal
amount of the Subordinated Retail Medium-Term Notes having the same Interest
Payment Dates may by written notice to the Paying and Authenticating Agent
(referred to below) at its principal corporate trust office in The City of New
York (or at such other address as the Company shall give notice in writing) on
or before the Regular Record Date preceding an Interest Payment Date, arrange to
have the interest payable on all Subordinated Medium-Term Notes held by such
Holder on such Interest Payment Date, and all subsequent Interest Payment Dates
until written notice to the contrary is given to the Paying and Authenticating
Agent, made by wire transfer of immediately available funds to a designated
account maintained at a bank in The City of New York (or other bank consented to
by the Company) as the holder of such Subordinated Medium-Term Notes shall have
designated; provided that such bank has appropriate facilities therefor.
This Subordinated Retail Medium-Term Note is one of a duly authorized
issue of securities of the Company (hereinafter called the "Securities") issued
and to be issued in one or more series under an Indenture dated as of October 1,
1993 (herein called the "Indenture") 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 thereunder of the Company, the Trustee and the Holders of
the Subordinated Retail Medium-Term Notes Due Nine Months Or More From Date of
Issue (the "Subordinated Retail Medium-Term Notes" or the "Notes") and the terms
upon which the Subordinated Retail Medium-Term Notes are, and are to be,
authenticated and delivered. The Bank of New York, acting through its corporate
trust offices in The City of
3
<PAGE>
New York is the initial paying agent for the payment of interest and principal
of the Subordinated Retail Medium-Term Notes (the "Paying Agent"); and The Bank
of New York acting through its corporate trust offices in The City of New York
is the authenticating agent for the Subordinated Retail Medium-Term Notes (the
"Paying and Authenticating Agent"). The Subordinated Retail Medium-Term Notes
may bear different Original Issue Dates, mature at different times, bear
interest at different rates and vary in such other ways as are provided in the
Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder on any
Holder's Optional Repayment Date(s), if any, indicated above. If no Holder's
Optional Repayment Dates are set forth above, this Note may not be so repaid at
the option of the Holder hereof prior to the Stated Maturity Date. On any
Holder's Optional Repayment Date this Note shall be repayable in whole or in
part in increments of $1,000 (provided that any remaining principal hereof shall
be at least $1,000) at the option of the Holder hereof at a repayment price
equal to 100% of the principal amount to be repaid, together with interest
thereon payable to the date of repayment. For this Note to be repaid in whole
or in part at the option of the Holder hereof, this Note must be received, with
the form entitled "Option to Elect Repayment" below duly completed, by the
Paying and Authenticating Agent at the principal corporate trust office of The
Bank of New York in The City of New York, or such other address which the
Company shall from time to time notify the Holders of the Subordinated Retail
Medium-Term Notes, not less than 30 nor more than 60 days prior to the Holders
Optional Repayment Date. Exercise of such repayment option by the Holder hereof
shall be irrevocable.
This Note may be redeemed at the option of the Company on any date on and
after the Initial Redemption Date, if any, specified above (the "Redemption
Date"). If no Initial Redemption Date is set forth above, this Note may not be
redeemed at the option of the Company prior to the Stated Maturity Date. On and
after the Initial Redemption Date, if any, this Note may be redeemed at any time
in whole or from time to time in part in increments of $1,000 (provided that any
remaining principal hereof shall be at least $1,000) at the option of the
Company at the applicable Redemption Price (as defined below) together with
interest thereon payable to the Redemption Date, on notice given to the Holder
not less than 30 nor more than 60 days prior to the Redemption Date. In the
event of redemption of this Note in part only, a new Note for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
Notices to the holders of the Notes with respect to redemption as
provided above will be mailed first class mail, postage prepaid, to the holders'
addresses listed in the Security Register maintained by the security registrar
not less than 30 nor more than 60 days prior to the Redemption Date.
4
<PAGE>
If this Note is redeemable at the option of the Company, the "Redemption
Price" shall initially be the Initial Redemption Percentage, specified above, of
the principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified above, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
The "Amortized Face Amount" of an Original Issue Discount Note shall be
the amount equal to (i) the Issue Price set forth above plus (ii) that portion
of the difference between the Issue Price and the principal amount of such Note
that has accrued at the Original Yield to Maturity (computed in accordance with
generally accepted United States bond yield computation principles) by the date
of calculation, as calculated by the Paying and Authenticating Agent, but in no
event shall the Amortized Face Amount of an Original Issue Discount Note exceed
its principal amount.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Date or the Maturity Date, as the case may be.
Interest payments for this Note will be computed and paid on the basis of a 360-
day year of twelve 30-day months.
If an Event of Default with respect to the Subordinated Retail Medium-
Term Notes shall occur and be continuing, the principle of the Subordinated
Retail Medium-Term Notes may be declared due and payable in the manner and with
the effect provided in the Indenture. Payment of the principal of the
Subordinated Retail Medium-Term Notes 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 Subordinated
Retail Medium-Term Notes in the case of a default in the performance of any
covenant of the Company, including payment of principal or interest.
The indebtedness evidenced by the Subordinated Retail Medium-Term Notes
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 the
interest on all Senior Indebtedness, as defined in the Indenture, and this
security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Note, by accepting the same, agrees that each
holder of Senior Indebtedness, whether created or acquired before or after the
issuance of the Subordinated Retail Medium-Term Notes, 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, "Excesss Proceeds"), and if, at such time, any
5
<PAGE>
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
Subordinated Retail Medium-Term Notes. This Note 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 Note, by accepting the same,
agrees to he 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 to take such action on his behalf as maybe necessary or appropriate
to acknowledge or effectuate the subordination of this Note and payment of
Excess Proceeds as provided in the Indenture and appoints the Trustee his
attorney-in-fact for any and all such purposes.
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 not less than a majority 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 each 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 Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this Note 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 Note, 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 Note may be registered on the Security Register
of the Company upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principle of and any
premium and interest on this Note 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 by such Holder's
attorney duly authorized in writing and thereupon one or more new Subordinated
Retail Medium-Term Notes, of authorized denominations and for the
6
<PAGE>
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Subordinated Retail Medium-Term Notes are issuable only in registered
form without coupons in minimum denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000. As provided in the Indenture,
and subject to certain limitations therein set forth, the Subordinated Retail
Medium-Term Notes are exchangeable for a like aggregate principal amount of
Subordinated Medium-Term Notes and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge will 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 Note 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 Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of (and
premium, if any) or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Indenture and the Subordinated Retail Medium-Term Notes shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Trustee under the Indenture by the manual signature of one of
its authorized officers, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
7
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and its corporate seal to be imprinted
hereon.
Dated:
THE BANK OF NEW YORK COMPANY, INC.
By:
-----------------------------
[SEAL]
Attest:
-----------------------------
CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
NationsBank of Georgia, National Association, as Trustee
By: The Bank of New York
As Authenticating Agent
By:
-----------------------------
Authorized Officer
8
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof together with interest to the
repayment date, to the undersigned, at
_________________________________________________
__________________________________________________________________ (Please
print or typewrite name and address of the undersigned)
For this Note to be repaid, this Note must be received at the corporate
trust office of The Bank of New York, in The City of New York, or at such other
place or places which the Company shall from time to time notify the Holder of
this Note, not less than 30 nor more than 60 days prior to the Holder's Optional
Repayment Date, if any, specified above, with this "Option to Elect Repayment"
form duly completed. Exercise of such repayment option by the holder hereof
shall be irrevocable. In the event of repayment of this Note in part only, a
new Note or Notes for the amount of the unpaid portion hereof shall be issued in
the name of the holder hereof upon the cancellation hereof.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be in increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations (each
of which shall be $1,000 or an integral multiple of $1,000 in excess of $1,000)
of the Subordinated Medium-Term Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
$ ____________________ _________________________________
NOTICE: The signature on this
Option to
Date ________________
Elect Repayment must
correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.
9
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--.............Custodian............
(Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the
above list.
10
<PAGE>
_____________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Other
Identifying Number of Assignee:
_____________________________
_________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
the within Note and all rights thereunder, and does hereby irrevocably
constitute and appoint ______________________________
______________________________________________________ attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated: ___________________ _________________________
Signature Guaranteed:
_________________________
_________________________
NOTICE: The signature(s) to this assignment must correspond with the name as
written upon the within instrument in every particular, without alteration or
enlargement, or any change whatever.
SIGNATURE GUARANTEED:______________________________
NOTICE: The signature(s) must be guaranteed by an eligible guarantor
institution (e.g., banks, securities brokers or dealers, credit unions, national
----
securities exchanges and savings associations) which is a member of or
participant in a signature guarantee program recognized by the Securities
registrar pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.
11
<PAGE>
EXHIBIT 4.2
THIS NOTE 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.
IF THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE FOR THE
DEPOSITORY TRUST COMPANY, THEN THE FOLLOWING LEGEND SHALL APPLY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE 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 OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH DEPOSITARY. UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED 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 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.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "ORIGINAL YIELD TO MATURITY" AND
"INITIAL SHORT ACCRUAL PERIOD OID" (COMPUTED UNDER THE EXACT METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT RULES.
ISIN:
CUSIP:
REGISTERED REGISTERED
No. FLR $
THE BANK OF NEW YORK COMPANY,INC.
SUBORDINATED RETAIL MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS: ORIGINAL ISSUE
DATE: STATED MATURITY DATE:
____________________
_____________________ ____________________
1
<PAGE>
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT DATES:
SPREAD: INITIAL INTEREST RESET INTEREST RATE RESET
DATE: DATES:
SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: MAXIMUM INTEREST RATE:
INITIAL REDEMPTION MINIMUM INTEREST RATE: ANNUAL REDEMPTION
PERCENTAGE: PERCENTAGE REDUCTION:
HOLDER'S OPTIONAL CALCULATION AGENT: ORIGINAL YIELD TO
REPAYMENT DATE(S): MATURITY:
INITIAL SHORT ACCRUAL TOTAL AMOUNT OF OID: DESIGNATED LIBOR
PAGE
PERIOD OID:
Reuters
____________________ _____________________ Telerate
ISSUE PRICE: TAX REDEMPTION: OTHER PROVISIONS:
____________________ Yes No ________________
DESIGNATED CMT INDEX CURRENCY:
TELERATE PAGE:
___________________ ______________________
The Bank of New York Company, Inc., a New York corporation (the
"Company"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of
DOLLARS
1
<PAGE>
on the Stated Maturity Date specified above (except to the extent redeemed or
repaid prior to the Stated Maturity Date), and to pay interest thereon at a rate
per annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above and thereafter at a rate determined in
accordance with the provisions set forth below, depending upon the Interest Rate
Basis specified above, until the principal hereof is paid or duly made available
for payment. The Company will pay interest on Interest Payment Dates specified
above, commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date (or any
Redemption Date as defined below or any Holder's Optional Repayment Date with
respect to which such option has been exercised, each such Stated Maturity Date,
Redemption Date and Holder's Optional Repayment Date being hereinafter referred
to as a "Maturity Date" with respect to the principal repayable on such date);
provided, however, that if the Original Issue Date occurs between a Regular
-------- -------
Record Date, as defined below, and the next succeeding Interest Payment Date or
on an Interest Payment Date, interest payments will commence on the second
Interest Payment Date next succeeding the Original Issue Date, to the registered
holder of this Note on the Regular Record Date with respect to such Interest
Payment Date; and provided, further, that if an Interest Payment Date (other
-------- -------
than an Interest Payment Date that occurs on any Maturity Date) would fall on a
day that is not a Business Day, as defined below, such Interest Payment Date
shall be the next day that is a Business Day, except in the case that the
Interest Rate Basis is LIBOR or LIBID, if such next Business Day falls in the
next succeeding calendar month, such Interest Payment Date will be the next
preceding day that is a Business Day. If any Maturity Date of this Note should
fall on a day that is not a Business Day, the payment of interest, principal or
premium, if any, due on such date shall be made on the next day that is a
Business Day and no additional interest on such amounts shall accrue from such
Maturity Date to and including the date on which any such payment is required to
be made. Interest payable on this Note on any Interest Payment Date will
include interest accrued from the Original Issue Date, or the most recent date
for which interest has been paid or duly provided for, to, but excluding, such
Interest Payment Date or the Maturity Date, as the case may be. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions, be paid to the Person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calander days prior to an Interest Payment Date (whether or not a
Business Day) (the "Regular Record Date"); provided, however, that interest
-------- -------
payable on any Maturity Date will be payable to the Person to whom the principal
hereof shall be payable. 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 Note (or one
or more Predecessor Notes) 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
2
<PAGE>
(referred to below), notice whereof shall be given to the Holder of this
Note not less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner, all as more fully provided in the Indenture
(referred to below).
Payment of the principal of, premium, if any, and interest due on this
Note will be made in immediately available funds 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 payment of interest on any Interest Payment Date other than the
-------
Maturity Date may be made at the option of the Company by check mailed to the
address of Person entitled thereto as such address shall appear in the Security
Register. A Holder of not less than $10,000,000 aggregate principal amount of
the Subordinated Retail Medium-Term Notes having the same Interest Payment Dates
may by written notice to the Paying and Authenticating Agent (referred to below)
at its principal corporate trust office in The City of New York (or at such
other address as the Company shall give notice in writing) on or before the
Regular Record Date preceding an Interest Payment Date, arrange to have the
interest payable on all Subordinated Medium-Term Notes held by such Holder on
such Interest Payment Date, and all subsequent Interest Payment Dates until
written notice to the contrary is given to the Paying and Authenticating Agent,
made by wire transfer of immediately available funds to a designated account
maintained at a bank in The City of New York (or other bank consented to by the
Company) as the holder of such Subordinated Medium-Term Notes shall have
designated; provided that such bank has appropriate facilities therefor.
This Subordinated Retail Medium-Term Note is one of a duly authorized
issue of securities of the Company (hereinafter called the "Securities") issued
and to be issued in one or more series under an Indenture dated as of October 1,
1993, (herein called the "Indenture") 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 thereunder of the Company, the Trustee and the Holders of
the Subordinated Retail Medium-Term Notes Due Nine Months Or More From Date Of
Issue (the "Subordinated Retail Medium-Term Notes" or the "Notes") and the terms
upon which the Subordinated Retail Medium-Term Notes are, and are to be,
authenticated and delivered. The Bank of New York, acting through its corporate
trust offices in The City of New York is the initial paying agent for the
payment of interest and principal of the Subordinated Retail Medium-Term Notes
(the "Paying Agent"); and The Bank of New York is the authenticating agent for
the Subordinated Retail Medium-Term Notes (the "Paying and Authenticating
Agent"). The Subordinated Retail Medium-Term Notes may bear different Original
Issue Dates, mature at different
3
<PAGE>
times, bear interest at different rates and vary in such other ways as are
provided in the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder on
the Holder's Optional Repayment Date(s), if any, indicated above. If no
Holder's Optional Repayment Dates are set forth above, this Note may not be so
repaid at the option of the Holder hereof prior to the Stated Maturity Date. On
any Holder's Optional Repayment Date, this Note shall be repayable in whole or
in part in increments of $1,000 (provided that any remaining principal hereof
shall be at least $1,000) at the option of the Holder hereof at a repayment
price equal to 100% of the principal amount to be repaid, together with interest
thereon payable to the date of repayment. For this Note to be repaid in whole
or in part at the option of the Holder hereof, this Note must be received, with
the form entitled "Option to Elect Repayment" below duly completed, by the
Paying and Authenticating Agent at the principal corporate trust office of The
Bank of New York in The City of New York or such other address which the Company
shall from time to time notify the Holders of the Subordinated Retail Medium-
Term Notes, not less than 30 nor more than 60 days prior to a Holder's Optional
Repayment Date. Exercise of such repayment option by the Holder hereof shall be
irrevocable.
This Note may be redeemed at the option of the Company on any date on
and after the Initial Redemption Date, if any, specified above (the "Redemption
Date"). If no Initial Redemption Date is set forth above, this Note may not be
redeemed at the option of the Company prior to the Stated Maturity Date. On and
after the Initial Redemption Date, if any, this Note may be redeemed at any time
in whole or from time to time in part in increments of $1,000 (provided that any
remaining principal hereof shall be at least $1,000) at the option of the
Company at the applicable Redemption Price (as defined below) together with
interest thereon payable to the Redemption Date, on notice given to the Holder
not less than 30 nor more than 60 days prior to the Redemption Date. In the
event of redemption of this Note in part only, a new Note for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
Notices to the holders of the Notes with respect to redemption as
provided above will be mailed first class mail, postage prepaid, to the holders'
addresses listed in the register maintained by the Registrar not less than 30
nor more than 60 days prior to the Redemption Date.
If this Note is redeemable at the option of the Company, the
"Redemption Price" shall initially be the Initial Redemption Percentage,
specified above, of the principal amount of this Note to be redeemed and shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be
4
<PAGE>
redeemed until the Redemption Price is 100% of such principal amount.
Accrued interest hereon shall be an amount calculated by multiplying
the face amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
from the Original Issue Date or from the day succeeding the last date for which
interest shall have been paid, as the case may be, to the date for which accrued
interest is being calculated. The interest factor for each such day shall be
computed by dividing the interest rate applicable to such day by 360 or, in the
case of Subordinated Medium-Term Notes having the Treasury Rate as their
Interest Rate Basis, by the actual number of days in the year.
Except as described below, this Note will bear interest at the rate
determined by reference to the Interest Rate Basis specified above (i) plus or
minus the Spread, if any, and\or (ii) multiplied by the Spread Multiplier, if
any, specified above. The interest rate in effect on each day shall be (a) if
such day is an Interest Rate Reset Date, the interest rate with respect to the
Interest Determination Date (as defined below) pertaining to such Interest Rate
Reset Date or (b) if such day is not an Interest Rate Reset Date, the interest
rate with respect to the Interest Determination Date pertaining to the next
preceding Interest Rate Reset Date, provided that (i) the interest rate in
effect from the Original Issue Date to the Initial Interest Rate Reset Date
shall be the Initial Interest Rate specified above. If any Interest Rate Reset
Date would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed to the next day that is a Business Day, except that if
the Interest Rate Basis specified above is LIBID or LIBOR, if such Business Day
is in the next succeeding calendar month, such Interest Rate Reset Date shall be
the immediately preceding Business Day.
The Interest Determination Date with respect to the Certificate of
Deposit Rate (the "CD Rate"), Commercial Paper Rate, Federal Funds Rate and
Prime Rate will be the second Business Day preceding the Interest Reset Date.
The Interest Determination Date with respect to LIBID or LIBOR shall be the
second London Banking Day (as defined below) preceding an Interest Rate Reset
Date. The Interest Determination Date with respect to the Treasury Rate shall
be the day of the week in which such Interest Rate Reset Date falls on which
Treasury bills normally would be auctioned; provided, however, that if as a
-------- -------
result of a legal holiday an auction is held on the Friday of the week preceding
the Interest Rate Reset Date, the related Interest Determination Date shall be
such preceding Friday; and provided, further, that if an auction shall fall on
-------- -------
any Interest Rate Reset Date then the Interest Rate Reset Date shall instead be
the first Business Day following such auction.
The "Calculation Date" pertaining to any Interest Determination Date
shall be the earlier of (i) the tenth calendar
5
<PAGE>
day after such Interest Determination Date or, if such day is not a Business
Day, the next succeeding Business Day or (ii) the Business Day preceeding the
applicable Interest Payment Date or Maturity Date as the case may be.
All percentages resulting from any calculation on the Subordinated
Retail Medium-Term Notes will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward, and all dollar amounts used in or resulting
from such calculation on the Subordinated Retail Medium-Term Notes will be
rounded to the nearest cent (with one-half cent being rounded upward).
As used herein, "Business Day" means (i) any day other than a
Saturday, Sunday, legal holiday or other day on which banking institutions in
The City of New York are authorized or required by law, regulation or executive
order to close, or (ii) in the case where the Interest Rate BAsis is LIBID or
LIBOR, any day other than a Saturday, Sunday, legal holiday or other day on
which banking institutions in the City of London are authorized or required by
law, regulation or executive order to close, or on which dealings in deposits in
the Index Currency (as defined below) are not transacted in the London interbank
market (a "London Banking Day").
Determination of CD Rate. CD Rate means, with respect to any Interest
------------------------
Determination Date (a "CD Interest Determination Date"), the rate on such day
for negotiable certificates of deposit having the Index Maturity specified
above as published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates", or any successor
publication ("H.15(519)"), under the heading "Cds (Secondary Market)", or, if
not so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such CD Interest Determination Date, the CD Rate will be the rate
on such CD Interest Determination Date for negotiable certificates of deposit of
the Index Maturity specified above as published by the Federal Reserve Bank of
New York in its daily statistical release "Composite 3:30 P.M. quotations for
U.S. Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit". If such rate is not published in either H.15(519) or
the Composite Quotations by 3:00 P.M., New York City time, on such Calculation
Date, then the CD Rate on such CD Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean of the secondary market
offered rates as of 9:00 A.M., New York City time, on such CD Interest
Determination Date, of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by the Calculation
Agent, after consultation with the Company, for negotiable certificates of
deposit of major United States money center banks (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the Index Maturity
specified above in denominations of $5,000,000; provided, however, that if the
-------- -------
dealers selected as aforesaid by the Calculation Agent are not
6
<PAGE>
quoting as set forth above, the CD Rate will be the CD Rate in effect on such CD
Interest Determination Date.
Determination of CMT Rate. The CMT Rate means, with respect to any
-------------------------
Interest Determination Date (a "CMT Rate Interest Determination Date"), the rate
displayed on the Designated CMT Telerate Page (as defined below) under the
caption "...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or if not displayed by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such CMT Rate Interest Determination Date, then the CMT Rate
shall be such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the relevant H.15(519). If such rate is no longer
published, or if not published by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the CMT Rate Interest Determination Date with respect to
such Interest Rate Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United State Department of the
Treasury that the Calculation Agent, after consultation with the Company,
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in the relevant H.15(519). If such information is
not published by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for the CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity, based on
the arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 P.M., New York City time, on the CMT Rate Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a Reference
Dealer") in The City of New York selected by the Calculation Agent, after
consultation with the Company, (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent cannot obtain three such Treasury Note quotations, the
CMT Rate for such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the
7
<PAGE>
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M., New York City time, on the CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent, after consultation with the Company,
and eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided however, that if fewer than
three Reference Dealers selected by the Calculation Agent are not quoting as
described herein, the CMT Rate will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the third preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the Treasury
Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
having the Index Maturity specified on the face hereof with respect to which the
CMT Rate will be calculated. If no such Index Maturity is specified on the face
hereof, the Designated CMT Maturity Index shall be 2 years.
Determination of Commercial Paper Rate. The Commercial Paper Rate
--------------------------------------
means, with respect to any Interest Determination Date (a "Commercial Paper
Interest Determination Date"), the Money Market Yield (as defined below) on such
date of the rate for commercial paper having the Index Maturity specified above
as published in H.15(519) under the heading "Commercial Paper". In the event
such rate is not published by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Commercial Paper Interest Determination Date, then the
Commercial Paper Rate shall be the Money Market Yield on such Commercial Paper
Interest Determination Date of the rate for commercial paper having the Index
Maturity shown above as published in Composite Quotations under the heading
"Commercial Paper". If the rate for a Commercial Paper Interest Determination
Date is not published in either H.15(519) or
8
<PAGE>
Composite Quotations by 3:00 P.M., New York City time, on such Calculation Date,
the Commercial Paper Rate for that Commercial Paper Rate Interest Determination
Date shall be calculated by the Calculation Agent, after consultation with the
Company, and shall be the Money Market Yield of the arithmetic mean of the
offered rates as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent, after consultation with the
Company, on such Commercial Paper Interest Determination Date, for commercial
paper of the Index Maturity specified above placed for an industrial issuer
whose bond rating is "AA", or the equivalent, from a nationally recognized
statistical rating agency; provided, however, that if the dealers selected as
-------- -------
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Commercial Paper Rate with respect to such Commercial Paper
Interest Determination Date will be the Commercial Paper Rate then in effect on
such Commercial Paper Interest Determination Date.
"Money Market Yield" shall be the yield (expressed as a percentage
rounded to the nearest one ten-thousandth of a percent, with five one hundred-
thousandths of a percent rounded upward) calculated in accordance with the
following formula:
Money Market Yield = D x 360 x 100
---------------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal, and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate. The Federal Funds Rate means,
-----------------------------------
with respect to any Interest Determination Date (a "Federal Funds Rate Interest
Determination Date"), the rate on that date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)" or, if not so published
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Federal Funds Rate Interest Determination Date, the Federal Funds Rate will be
the rate on such Federal Funds Rate Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate". If such
rate is not yet published in either H.15(519) or Composite Quotations by 3:00
P.M., New York City time, on the Calculation Date pertaining to such Federal
Funds Rate Interest Determination Date, the Federal Funds Rate for such Federal
Funds Rate Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the rates for the last transaction in
overnight Federal Funds arranged by three leading brokers of Federal Funds
transactions in The City of New York selected by the Calculation Agent (after
consultation with the Company) prior to 9:00 A.M., New York City time, on such
Federal Funds Rate Interest Determination Date; provided, however, that if the
-------- -------
brokers selected as aforesaid by the Calculation Agent, after consultation
9
<PAGE>
with the Company, are not quoting as described above, the Federal Funds Rate
with respect to such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate then in effect on such Federal Funds Rate Interest
Determination Date.
Determination of LIBOR. LIBOR means, with respect to any Interest
----------------------
Determination Date relating to a LIBOR Note (a "LIBOR Interest Determination
Date"), the rate determined by the Calculation Agent in accordance with the
following provisions:
(i) LIBOR will be either: (a) if LIBOR Reuters" is specified on the
face hereof, the arithmetic mean of the offered rates (unless the specified
Designated LIBOR Page (as defined below) by its terms provides only for a single
rate, in which case such single rate shall be used) for deposits in the Index
Currency having the Index Maturity designated on the face hereof, as of 11:00
A.M. London time (unless such rate is superseded by a corrected rate before
12:00 noon, London time, in which case such corrected rate shall be the
applicable rate), on that LIBOR Interest Determination Date, if at least two
such offered rates appear (unless, as aforesaid, only a single rate is required)
on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on the
face hereof, the rate for deposits in the Index Currency having the Index
Maturity designated on the face hereof commencing on the second London Banking
Day immediately following that LIBOR Interest Determination Date that appears
on the Designated LIBOR Page specified on the face hereof as of 11:00 A.M.
London time (unless such rate is superseded by a corrected rate before 12:00
noon, London time, in which case such corrected rate shall be the applicable
rate), on that LIBOR Interest Determination Date. If LIBOR cannot be determined
under clause (a) or (b) of this paragraph (i), as applicable, LIBOR in respect
of the related LIBOR Interest Determination Date will be determined as if the
parties had specified the rate described in paragraph (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
LIBOR cannot be determined under paragraph (i) above, the Calculation Agent will
request that the London offices of four major banks in London selected by the
Calculation Agent, after consultation with the Company, provide such Calculation
Agent with offered quotations for deposits in the Index Currency for the period
of the Index Maturity specified on the face hereof to prime banks in the London
interbank market as of approximately 11:00 A.M., London time, on such LIBOR
Interest Determination Date, such deposits commencing on the second London
Banking Day immediately following such LIBOR Interest Determination Date and in
a principal amount that is representative for a single transaction in such
market at such time. If at least two such quotations are provided, LIBOR for
such LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are provided, LIBOR for such
LIBOR Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M., in the applicable Principal Financial
10
<PAGE>
Center (as defined below), on such LIBOR Interest Determination Date by three
major banks in such Principal Financial Center selected by the Calculation
Agent, after consultation with the Company, for loans in the Index Currency to
major European banks having the Index Maturity specified on the face hereof and
in a principal amount that is representative for a single transaction in such
Index Currency in such market at such time. If at least two such quotations are
provided, LIBOR for such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two such quotations are
provided as requested, LIBOR will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Index Currency" means the currency (including composite currencies)
specified on the face hereof, if any, as the currency for which LIBOR shall be
calculated. If no such currency is specified, the Index Currency shall be U.S.
dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
designated on the face hereof, the display on the Reuters Monitor Money Rates
Service for the purpose of displaying the London interbank rates of major banks
for the applicable Index Currency, or (b) if "LIBOR Telerate" is designated on
the face hereof, the display on the Dow Jones Telerate Service (or such other
service as may be nominated by the British Bankers' Association as the
information vendor for the purposes of displaying British Bankers' Association
interest settlement rates) for the purpose of displaying the London interbank
rates of major banks for the applicable Index Currency. If neither LIBOR
Reuters nor LIBOR Telerate is specified on the face hereof, LIBOR for the
applicable Index Currency will be determined as if LIBOR Telerate had been
specified.
"Principal Financial Center" will generally be the capital city of the
country of the specified Index Currency, except that with respect to U.S.
dollars, Deutsche marks, and ECUs, the Principal Financial Center shall be The
City of New York, Frankfurt, and Luxembourg, respectively.
Determination of LIBID. LIBID means, with respect to any Interest
----------------------
Rate Determination Date relating to a LIBID Note (a "LIBID" Interest
Determination Date"), the rate determined by the Calculation Agent in accordance
with the following provisions:
(i) LIBID will be determined on the basis of the bid rates quoted to
prime banks in the London interbank market at approximately 11:00 A.M., London
time, for deposits in U.S. dollars of not less than U.S. $1 million for the
period of the Index Maturity specified above commencing on the second London
Banking Day immediately following such LIBID Interest Determination Date, by the
London offices of four major banks in the London interbank market named on the
Reuters Screen LIBO Page and selected by the Calculation Agent, after
consultation with the Company (the "LIBID Reference Banks"), on the LIBID
Interest Determination Date. If at least two such quotations appear on the
Reuters Screen LIBO
11
<PAGE>
Page, LIBID for such LIBID Interest Determination Date will be the arithmetic
mean of such quotations as determined by the Calculation Agent. If fewer than
two quotations are provided, LIBID for such LIBID Interest Determination Date
will be determined as if the parties had specified the rate described in (ii)
below. As used herein, "Reuters Screen LIBO Page" means the display designated
as Page "LIBO" on the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBO page on that service) for the purpose of displaying London
interbank bid rates of major banks.
(ii) With respect to a LIBID Interest Determination Date on which fewer
than two such quotations appear, the Calculation Agent will request that each
LIBID Reference Bank provide the Calculation Agent with a quotation of the bid
rate quoted to such bank by the head offices of major bank in The City of New
York for deposits in U.S. dollars for the period of the Index Maturity at
approximately 11:00 A.M., London time, on such LIBID Interest Determination Date
and in a principal amount equal to an amount of not less than U.S. $1 million
that is representative for a single transaction in such market at such time. If
at least two such quotations are provided, LIBID for such LIBID Interest
Determination Date will be the arithmetic mean of such quotations. If fewer
than two quotations are provided, LIBID for such LIBID Interest Determination
Date will be the arithmetic mean of the rates quoted by three major banks in The
City of New York selected by the Calculation Agent, after consultation with the
Company, at approximately 11:00 A.M., New York City time, on such LIBID Interest
Determination Date for loans in U.S. dollars to leading European banks, having
the Index Maturity designated above and in a principal amount equal to an amount
of not less than U.S. $1 million that is representative for a single transaction
in such market at such time; provided, however, that if the banks selected as
-------- -------
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, LIBID for such LIBID Interest Determination Date will be LIBID in
effect on such LIBID Interest Determination Date.
Determination of Prime Rate. Prime Rate means, with respect to any
---------------------------
Interest Determination Date (a "Prime Rate Interest Determination Date"), the
arithmetic mean of the prime rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date by three major money center banks in The
City of New York as selected by the Calculation Agent (after consultation with
the Company). If fewer than three such quotations are provided, the Prime Rate
shall be calculated by the Calculation Agent and shall be determined as the
arithmetic mean on the basis of the prime rates quoted in The City of New York
on such date by three substitute banks or trust companies organized and doing
business under the laws of the United States, or any State thereof, having total
equity capital of at least $500 million and being subject to supervision or
examination by Federal or State authority, selected by the Calculation Agent
(after
12
<PAGE>
consultation with the Company); provided, however, that if the banks or
-------- -------
trust companies selected as aforesaid by the Calculation Agent are not quoting
as mentioned in this sentence, the Prime Rate will be the Prime Rate then in
effect on such Prime Rate Interest Determination Date.
Determination of Treasury Rate. Treasury Rate means, with respect to
------------------------------
any Interest Determination Date (a "Treasury Interest Determination Date"), the
rate applicable to the most recent auction of direct obligations of the United
States ("Treasury Bills") having the Index Maturity specified above, as such
rate is published in H.15(519) under the heading "Treasury Bills -- auction
average (investment)" or, if not so published by 3:00 P.M., New York City time,
on the Calculation Date pertaining to such Treasury Interest Determination Date,
the auction average rate (expressed as a bond equivalent on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that
the results of the auction of Treasury bills having the Index Maturity specified
above are not reported as provided by 3:00 P.M., New York City time, on such
Calculation Date, or if no such auction is held in a particular week, then the
Treasury Rate shall be a yield to maturity (expressed as a bond equivalent, on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury Interest
Determination Date, of three leading primary United States government securities
dealers selected by the Calculation Agent (after consultation with the
Company), for the issue of Treasury bills with a remaining maturity closest to
the Index Maturity specified above; provided, however, that if the dealers
-------- -------
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, Treasury Rate with respect to such Treasury Interest
Determination Date will be the Treasury Rate then in effect on such Treasury
Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
At the request of the Holder hereof, the Calculation Agent will
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which will become effective as of the next
Interest Reset Date.
The "Amortized Face Amount" of an Original Issue Discount Note shall
be the amount equal to (i) the Issue Price set forth above plus (ii) that
portion of the difference between the Issue
13
<PAGE>
Price and the principal amount of such Note that has accrued at the Original
Yield to Maturity (computed in accordance with generally accepted United States
bond yield computation principles) by the date of calculation, as calculated by
the Paying and Authenticating Agent, but in no event shall the Amortized Face
Amount of an Original Issue Discount Note exceed its principal amount.
If an Event of Default with respect to the Subordinated Retail Medium-
Term Notes shall occur and be continuing, the principle of the Subordinated
Retail Medium-Term Notes may be declared due and payable in the manner and with
the effect provided in the Indenture. Payment of the principal of the
Subordinated Retail Medium-Term Notes 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 Subordinated
Retail Medium-Term Notes in the case of a default in the performance of any
covenant of the Company, including payment of principal or interest.
The indebtedness evidenced by the Subordinated Retail Medium-Term
Notes 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 the
interest on all Senior Indebtedness, as defined in the Indenture, and this
security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Note, by accepting the same, agrees that each
holder of Senior Indebtedness, whether created or acquired before or after the
issuance of the Subordinated Retail Medium-Term Notes, 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, "Excesss 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 Subordinated Retail Medium-
Term Notes. This Note 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 Note, by accepting the same, agrees to he
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 to
take such action on his behalf as maybe necessary or appropriate to acknowledge
or effectuate the subordination of this Note and payment of Excess
14
<PAGE>
Proceeds as provided in the Indenture and appoints the Trustee his attorney-in-
fact for any and all such purposes.
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 not less than a majority 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 each 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 Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this Note 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 Note, 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 Note may be registered on the Security
Register of the Company upon surrender of this Note 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 Note 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 by
such Holder's attorney duly authorized in writing and thereupon one or more new
Subordinated Retail Medium-Term Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Subordinated Retail Medium-Term Notes are issuable only in
registered form without coupons in minimum denominations of $1,000 or any amount
in excess thereof which is an integral multiple of $1,000. As provided in the
Indenture, and subject to certain limitations therein set forth, the
Subordinated Retail Medium-Term Notes are exchangeable for a like aggregate
principal amount of Subordinated Retail Medium-Term Notes and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
15
<PAGE>
No service charge will 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 Note 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 Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of (and
premium, if any) or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
The Indenture and the Subordinated Retail Medium-Term Notes shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by
the Authentication Agent or the Trustee under the Indenture by the manual
signature of one if its authorized officers, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
16
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and a facsimile of its corporate seal to be
imprinted hereon.
Dated:
THE BANK OF NEW YORK COMPANY, INC.
By:
----------------------------
[SEAL]
Attest:
----------------------------
CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
NationsBank Georgia, National Association, as Trustee
By: The Bank of New York
As Authenticating Agent
By:
----------------------------
Authorized Signatory
17
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at
-------------------------------------
------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid at the option of the holder hereof, this
Note must be received at the corporate trust office of The Bank of New York, in
The City of New York or at such other place or places which the Company shall
from time to time notify the Holder of this Note, not less than 30 nor more than
60 days prior to the Holder's Optional Repayment Date, if any, shown on the face
of this Note, with this "Option to Elect Repayment" form duly completed.
Exercise of such repayment option by the holder hereof shall be irrevocable. In
the event of repayment of this Note in part only, a new Note or Notes for the
amount of the unpaid portion hereof shall be issued in the name of the holder
hereof upon the cancellation hereof.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be in increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations (each
of which shall be $1,000 or an integral multiple of $1,000 in excess of $25,000)
of the Subordinated Medium-Term Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
$
-------------------- ----------------------------------
NOTICE: The signature on this
Option to
Date ________________
Elect Repayment must
correspond with the name as written
upon this Note in every particular,
without alteration or enlargement or
any change whatever.
1
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--.............Custodian............
(Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the
above list.
2
<PAGE>
_____________________________
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto
Please Insert Social Security or Other
Identifying Number of Assignee:
_____________________________
_________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
the within Note and all rights thereunder, and does hereby irrevocably
constitute and appoint ______________________________
______________________________________________________ attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated: ___________________ _________________________
_________________________
NOTICE: The signature(s) to this assignment must correspond with the name as
written upon the within instrument in every particular, without alteration or
enlargement, or any change whatever.
SIGNATURE GUARANTEED:______________________________
NOTICE: The signature(s) must be guaranteed by an eligible guarantor
institution (e.g., banks, securities brokers or dealers, credit unions, national
----
securities exchanges and savings associations) which is a member of or
participant in a signature guarantee program recognized by the Securities
registrar pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.
3
<PAGE>
EXHIBIT 4.3
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 August 1, 1995 (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 August
1, 1995):
(1) The title of the Securities of such series is "Subordinated Retail
Medium-Term Notes" (the "Notes").
(2) The aggregate principal amount of the Notes which may be
authenticated and delivered under the Indenture shall be $450,000,000 (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 Notes which, pursuant to Section
303, are deemed never to have been delivered thereunder).
(3) The Notes shall mature, and the principal amount thereof shall be
payable as set forth, from time to time, in the Pricing Supplement or Terms
Agreement applicable to each issue of
<PAGE>
Notes, as agreed to by the Company and evidenced by written instructions
delivered, from time to time, to the Trustee or the Authenticating Agent, as the
case may be.
(4) The rate at which each Note shall bear interest shall be as set
forth, from time to time, in the Pricing Supplement or Terms Agreement
applicable to each issue of Notes. The date from which each Note shall bear
interest and the dates and basis upon which interest will be paid on each Note
shall be as set forth, from time to time, in the Pricing Supplement or Terms
Agreement applicable to each issue of Notes, as agreed to by the Company and
evidenced by written instructions delivered, from time to time, to the Trustee
or the Authenticating Agent, as the case may be. 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 "Regular Record Date",
as specified in the applicable Pricing Supplement or Terms Agreement.
(5) Whether the Notes may be redeemed by the Company prior to Maturity
shall be set forth in the applicable Pricing Supplement or Terms Agreement, as
agreed to by the Company and evidenced by written instructions delivered, from
time to time, to the Trustee or the Authenticating Agent, as the case may be.
(6) Whether the Notes will have the benefit of any sinking fund shall be
set forth in the applicable Pricing Supplement or Terms Agreement, as agreed to
by the Company and evidenced by written instructions delivered, from time to
time, to the Trustee or the Authenticating Agent, as the case may be.
2
<PAGE>
(7) The Notes will be subject to Section 1403 of the Indenture unless
otherwise set forth in the Pricing Supplement or Terms Agreement applicable to
each issue of Notes.
(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").
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 delivered or caused to be delivered to the
3
<PAGE>
Trustee under the Indenture, this Officers' Certificate.
Dated: August 8, 1995
By:/s/ Alan R. Griffith
----------------------------
Alan R. Griffith
Vice Chairman
By:/s/ Phebe C. Miller
----------------------------
Phebe C. Miller
Secretary
4
<PAGE>
EXHIBIT 5
THE BANK OF NEW YORK
ONE WALL STREET
NEW YORK, NEW YORK 10286
August 8, 1995
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 up to $450,000,000 principal amount of Subordinated Retail Medium-Term
Notes due nine months or more from date of issue (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.
<PAGE>
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 August 8, 1995 which upon filing
will be incorporated by reference in the Prospectus dated October 8, 1993 as
supplemented by the Prospectus Supplement dated August 1, 1995 relating to the
Securities and to the reference to me under the heading "Legal Opinions" 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
