SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): March 24, 1998
THE BANK OF NEW YORK COMPANY, INC.
(Exact Name of Registrant as Specified in Charter)
New York 1-652 13-2614959
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
48 Wall Street, New York, New York 10286
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 495-1784
<PAGE>
ITEM 5. OTHER EVENTS.
On March 24, 1998, BNY Capital III, a statutory business trust formed
under the laws of the State of Delaware (the "Trust") issued 12,000,000 of its
7.05% Preferred Securities, Series D (Liquidation Amount $25 per Preferred
Security) (the "Preferred Securities"), which represent beneficial interests in
the Trust, in a public offering registered under the Securities Act of 1933, as
amended (Registration Statement Nos. 333-40837 and 333-40837-01 through 03). The
sole asset of the Trust is $309,278,350 in aggregate principal amount of the
7.05% Junior Subordinated Deferrable Interest Debentures, Series D, of the
Registrant. In addition, the Registrant has guaranteed the obligations of the
Trust under the Preferred Securities.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
The following exhibits are filed herewith:
Exhibit
Number Description
- ------- -----------
1 Pricing Agreement, dated March 12, 1998, among The Bank of New
York Company, Inc., BNY Capital III and Morgan Stanley & Co.
Incorporated, as representative of the several Underwriters
named in Schedule I thereto, incorporating the Underwriting
Agreement Standard Provisions
(December 1997).
4.1 Junior Subordinated Indenture, dated as of December 25, 1996,
between The Bank of New York Company, Inc. and The First
National Bank of Chicago, as Trustee (incorporated herein by
reference to Exhibit 4.1 to the Registrant's Current Report on
Form 8-K, dated June 5, 1997 and filed on June 16, 1997).
4.2 Specimen of the 7.05% Junior Subordinated Deferrable Interest
Debentures, Series D, of The Bank of New York Company, Inc.
4.3 Amended and Restated Trust Agreement, dated as of March 24,
1998, among The Bank of New York Company, Inc., as Depositor,
The First National Bank of Chicago, as Property Trustee, First
Chicago Delaware Inc., as Delaware Trustee, and the
Administrative Trustees named therein.
4.4 Specimens of the 7.05% Preferred Securities, Series D, of BNY
Capital III.
-1-
<PAGE>
4.5 Guarantee Agreement, dated as of March 24, 1998, by and
between The Bank of New York Company, Inc., as Guarantor, and
The First National Bank of Chicago, as Guarantee Trustee.
4.6 Agreement as to Expenses and Liabilities, dated as of March
24, 1998, between The Bank of New York Company, Inc., as the
holder of the Common Securities of BNY Capital III, and BNY
Capital III.
SIGNATURES
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 hereunto duly authorized.
THE BANK OF NEW YORK COMPANY, INC.
Date: March 30, 1998 By: /s/ Robert E. Keilman
---------------------
Robert E. Keilman
Comptroller
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Method of Filing
- ----------- ----------- ----------------
<S> <C> <C>
1 Pricing Agreement, dated March 12, 1998, Filed herewith
among The Bank of New York Company, Inc.,
BNY Capital III and Morgan Stanley & Co.
Incorporated, as Representative of the Several
Underwriters named in Schedule I thereto,
incorporating the Underwriting Agreement Standard
Provisions (December 1997).
4.1 Junior Subordinated Indenture, dated as of Incorporated herein
December 25, 1996, between The Bank of New by reference to
York Company, Inc. and The First National Exhibit 4.1 to the
Bank of Chicago, as Trustee. Registrant's current
report on Form 8-K,
dated June 5, 1997
and filed on June 16,
1997
4.2 Specimen of the 7.05% Junior Subordinated Filed herewith
Deferrable Interest Debentures, Series D, of
The Bank of New York Company, Inc.
4.3 Amended and Restated Trust Agreement, dated Filed herewith
as of March 24, 1998, among The Bank of New
York Company, Inc., as Depositor, The First
National Bank Of Chicago, as Property Trustee,
First Chicago Delaware Inc., as Delaware
Trustee, and the Administrative Trustees named
therein.
4.4 Specimens of the 7.05% Preferred Securities, Filed herewith
Series D, of BNY Capital III.
4.5 Guarantee Agreement, dated as of March 24, Filed herewith
1998, by and between The Bank of New York
Company, Inc., as Guarantor, and The First
National Bank of Chicago, as Guarantee
Trustee.
-i-
<PAGE>
4.6 Agreement as to Expenses And Liabilities, Filed herewith
dated as of March 24, 1998, between The Bank
of New York Company, Inc., as the Holder of the
Common Securities of BNY Capital III, and
BNY Capital III.
</TABLE>
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Exhibit 1
BNY Capital III
The Bank of New York Company, Inc.
48 Wall Street
New York, New York 10286
Pricing Agreement
To the Underwriters named in
Schedule I hereto
c/o Morgan Stanley & Co. Incorporated (the "Representative")
1585 Broadway, 2d Floor
New York, NY 10036
March 12, 1998
Ladies and Gentlemen:
BNY Capital III, a statutory business trust formed under the laws of
the State of Delaware (the "Designated Trust") and The Bank of New York Company,
Inc., a New York corporation (the "Company"), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement Standard Provisions
(December 1997) (the "Standard Provisions"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the preferred
securities of the Designated Trust specified in Schedule II hereto. The Firm
Designated Securities are herein referred to as the "Designated Securities."
Each of the provisions of the Standard Provisions is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement.
Each reference to the Representative herein and in the provisions of the
Standard Provisions so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representative designated to act on
behalf of itself and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Standard Provisions and the address of
the Representative referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus,
<PAGE>
as the case may be, relating to the Designated Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
For purposes of rule 15c6-1 under the Securities Exchange Act of 1934,
as amended, March 24, 1998 shall be the date for the payment of funds and
delivery of securities pursuant to the offering contemplated by this Agreement
and the Prospectus Supplement related to the Designated Securities.
If the foregoing is in accordance with your understanding, please sign
and return to us ten counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Standard Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Designated Trust and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representative as to the
authority of the signers thereof.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By: /s/ Robert Keilman
-------------------------------------
Name: Robert E. Keilman
Title: Comptroller
BNY CAPITAL III
By: The Bank of New York Company,
Inc., as Depositor
By: /s/ Robert Keilman
------------------------------------
Name: Robert E. Keilman
Title: Comptroller
2
<PAGE>
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
As Representative of the Underwriters
Named in Schedule I hereto
By: /s/ Michael Fusco
-----------------
Name: Michael Fusco
Title: Vice President
On behalf of each of the Underwriters
named on Schedule I hereto
3
<PAGE>
SCHEDULE I
(TO PRICING AGREEMENT)
Number of Firm
Designated
Securities to
Underwriter be Purchased
- ----------- --------------
Morgan Stanley & Co. Incorporated 1,495,000
A.G. Edwards & Sons, Inc. 1,465,000
Goldman, Sachs & Co. 1,465,000
PaineWebber Incorporated 1,465,000
Prudential Securities Incorporated 1,465,000
Smith Barney Inc. 1,465,000
BT Alex Brown Incorporated 120,000
Bear, Stearns Co. Inc. 120,000
CIBC Oppenheimer Corp. 120,000
Credit Suisse First Boston Corporation 120,000
Donaldson, Lufkin & Jenrette
Securities Corporation 120,000
Piper Jaffray Inc. 120,000
Wheat First Securities, Inc. 120,000
Advest, Inc. 60,000
Robert W. Baird & Co. Incorporated 60,000
J.C. Bradford & Co. 60,000
Blaylock & Partners, L.P. 60,000
Cowen & Company 60,000
Craigie Incorporated 60,000
Crowell, Weedon & Co. 60,000
Dain Rauscher Incorporated 60,000
Davenport & Company LLC 60,000
Fahnestock & Co. Inc. 60,000
Fidelity Capital Markets, A Division of
National Financial Services Corporation 60,000
First Albany Corporation 60,000
First of Michigan Corporation 60,000
Gibraltar Securities Co. 60,000
H.J. Meyers & Co., Inc. 60,000
Interstate/Johnson Lane Corporation 60,000
J.J.B. Hilliard, W.L. Lyons, Inc. 60,000
Janney Montgomery Scott Inc. 60,000
<PAGE>
Legg Mason Wood Walker, Incorporated 60,000
McDonald & Company Securities, Inc. 60,000
McGinn, Smith & Co., Inc. 60,000
Mesirow Financial, Inc. 60,000
Morgan Keegan & Company, Inc. 60,000
Muriel Siebert & Co., Inc. 60,000
NationsBanc Montgomery Securities LLC 60,000
The Ohio Company 60,000
Olde Discount Corporation 60,000
Raymond James & Associates, Inc. 60,000
The Robinson-Humphrey Company, LLC 60,000
Roney & Co., L.L.C. 60,000
Scott & Stringfellow, Inc. 60,000
Stephens Inc. 60,000
Sterne, Agee & Leach, Inc. 60,000
Stifel, Nicolaus & Company, Incorporated 60,000
Sutro & Co. Incorporated 60,000
TD Securities (USA) Inc. 60,000
Tucker Anthony Incorporated 60,000
U.S. Clearing Corp. 60,000
Wedbush Morgan Securities 60,000
-------------
Total 12,000,000
=============
2
<PAGE>
SCHEDULE II
(TO PRICING AGREEMENT)
DESIGNATED TRUST:
BNY Capital III
TITLE OF DESIGNATED SECURITIES:
7.05% Preferred Securities, Series D
AGGREGATE PRINCIPAL AMOUNT:
Aggregate liquidation amount of Firm Designated Securities:
$300,000,000 (12,000,000 shares)
INITIAL OFFERING PRICE TO PUBLIC
100% of the liquidation amount of the Designated Securities
PURCHASE PRICE BY UNDERWRITERS:
100% of the liquidation amount of the Designated Securities
UNDERWRITERS' COMPENSATION:
$ 0.7875 per Designated Security ($9,450,000 in the aggregate)
FORM OF DESIGNATED SHARES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representative at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
ACCOUNT FOR PAYMENT OF PURCHASE PRICE:
BNY Capital III
Acct. No. 6301555243 at
The Bank of New York
ABA No. 021000018
<PAGE>
TRUST AGREEMENT:
Amended and Restated Trust Agreement, dated as of March 24, 1998,
between the Company and the Trustees named therein
GUARANTEE:
Guarantee Agreement, dated as of March 24, 1998, between Company, as
guarantor, and the Guarantee Trustee named therein
SUBORDINATED DEBENTURES:
7.05% Junior Subordinated Debentures, Series D
MATURITY:
March 1, 2028
INTEREST RATE:
7.05%
INTEREST PAYMENT DATES:
March 1, June 1, September 1 and December 1 of each year,
commencing on June 1, 1998
EXTENSION PERIOD:
20 consecutive quarters
REDEMPTION PROVISIONS:
Not redeemable prior to March 24, 2003 except upon the occurrence of a
Tax Event or a Capital Treatment Event.
Special Event Redemption: Upon the occurrence of a Tax Event or a
Capital Treatment Event, redeemable (in whole but not in part) at a
price equal to 100% of the principal amount of the Series D
Subordinated Debentures plus accrued and unpaid interest thereon to the
date for redemption.
Optional Redemption: Redeemable after March 24, 2003 (in whole or in
part) at a price equal to 100% of the principal amount of the Series D
Subordinated Debentures plus accrued and unpaid interest thereon to the
date for redemption.
2
<PAGE>
SINKING FUND PROVISIONS:
No sinking fund provisions.
LISTING:
The Designated Securities have been approved for listing on the New
York Stock Exchange, subject to notice of issuance, and, if the Company
elects to terminate the Designated Trust and to distribute the
Subordinated Debentures to the holders of the Designated Securities in
liquidation of the Designated Trust, the Company and the Designated
Trust shall each use its best efforts to list the Subordinated
Debentures on the New York Stock Exchange, prior to such distribution.
ACCOUNTANTS LETTERS:
At the Time of Delivery, Ernst & Young LLP shall have delivered a
letter in the form of Annex II hereto, pursuant to Section 7(g) of the
Underwriting Agreement Standard Provisions (December 1997).
TIME OF DELIVERY:
9:00 a.m., New York City time, March 24, 1998
NAMES OF UNDERWRITERS AND NUMBER
OF FIRM DESIGNATED SECURITIES TO BE PURCHASED:
As described on Schedule I hereto.
CLOSING LOCATION:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
3
<PAGE>
NAMES AND ADDRESSES OF REPRESENTATIVE:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
4
<PAGE>
ANNEX II
Accountants' Letter
Pursuant to Section 7(g) of the Underwriting Agreement Standard
Provisions (December 1997), the Company's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder, and the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them;
(ii) In their opinion, the consolidated financial statements, and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder; and they have made a review of the interim
financial information of the Company and its subsidiaries for the periods
specified in such letter in accordance with standards established by the
American Institute of Certified Public Accountants;
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a limited review of the unaudited consolidated financial
statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused 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
amount in the audited consolidated financial statements for such fiscal years
which was included or incorporated by reference in the Company's Annual Reports
on Form 10-K for the last three fiscal years;
(B) the unaudited information with respect to the annual
consolidated results of operations and financial position for such fiscal years
which was included or incorporated by reference in the Prospectus does not agree
with the corresponding amounts in the audited consolidated financial statements
for such fiscal years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for the last three years;
<PAGE>
(C) the unaudited consolidated financial statements included or
incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act and published rules and regulations thereunder or are not fairly presented
in conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(D) any unaudited financial data included in the Prospectus as at
any time, or for any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company do not agree with the
corresponding amounts in the unaudited consolidated financial statements from
which such data are derived;
(E) the unaudited financial data included in the Prospectus do not
agree with the corresponding amounts in the unaudited financial statements which
were not included in the Prospectus but from which were derived such financial
data;
(F) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated shareholders'
equity or allowance for loan losses, in each case as compared with amounts shown
in the latest consolidated statement of condition included or incorporated by
reference in the Prospectus except in each case for changes which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(G) for the period from the date of the latest complete
consolidated financial statements included or incorporated by reference in the
Prospectus to the specified date referred to in (F) above there were any
decreases in consolidated net interest income, net interest income after
provision for loan losses, or the total or fully diluted per share amounts of
net income of the Company, in each case as 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
2
<PAGE>
specified by the Underwriters 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 Underwriters or in documents incorporated by
reference in the Prospectus specified by the Underwriters, 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.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement Standard Provisions (December
1997) as of the date of the letter delivered on the date of the Pricing
Agreement for purposes of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) in
relation to the applicable Designated Securities for purposes of the letter
delivered at the Time of Delivery for such Designated Securities.
3
<PAGE>
BNY CAPITAL III
BNY CAPITAL IV
BNY CAPITAL V
Preferred Securities
guaranteed to the extent set forth in Guarantees by
THE BANK OF NEW YORK COMPANY, INC.
Underwriting Agreement Standard Provisions
(December 1997)
From time to time, BNY Capital III, BNY Capital IV or BNY Capital V,
each a statutory business trust formed under the laws of the State of Delaware
(each a "Trust" and collectively, the "Trusts"), and The Bank of New York
Company, Inc., a New York corporation (the "Company"), as depositor of each
Trust and as Guarantor, may enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, which shall provide that the Trust
identified in the applicable Pricing Agreement (such Trust being the "Designated
Trust" with respect to such Pricing Agreement) shall issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms constituting
the "Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred securities (the "Securities")
identified in Schedule I to the applicable Pricing Agreement (with respect to
such Pricing Agreement, the "Firm Designated Securities") representing undivided
beneficial interests in the assets of the Designated Trust. If specified in such
Pricing Agreement, the Designated Trust may grant to the Underwriters the right
to purchase at their election an additional number of Securities, specified in
such Pricing Agreement as provided in Section 3 hereof (the "Optional Designated
Securities"). The Firm Designated Securities and any Optional Designated
Securities, if any, are collectively called the "Designated Securities." The
proceeds of the concurrent sales of the Designated Securities to the public and
of the common securities of the Designated Trust (the "Common Securities") to
the Company are to be invested in junior subordinated deferrable interest
debentures of the Company identified in the Pricing Agreement with respect to
such Designated Securities (with respect to such Pricing Agreement, the
"Subordinated Debentures"), to be issued pursuant to a junior subordinated
indenture dated as of December 25, 1996 between the Company and The First
National Bank of Chicago, as trustee (the "Indenture"). The Designated
Securities may be exchangeable into Subordinated Debentures as specified in
Schedule II to such Pricing Agreement. The Designated Securities will be
guaranteed by the Company to the extent set forth in the Pricing Agreement with
respect to such Designated Securities (with respect to such Pricing Agreement,
the "Guarantee").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the amended and restated trust agreement identified in such
Pricing Agreement (with respect to such Pricing Agreement, the "Trust
Agreement").
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will
<PAGE>
act as representatives (the "Representatives"). The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their representative.
These Underwriting Agreement Standard Provisions shall not be construed as an
obligation of any Trust to sell any of its preferred securities or as an
obligation of any underwriters to purchase any of such preferred securities. The
obligation of any Trust to issue and sell any of its preferred securities and
the obligation of any underwriters to purchase any of such preferred securities
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the maximum
number of Firm Designated Securities, the maximum number of Optional Designated
Securities, if any, the initial public offering price of such Firm and Optional
Designated Securities or the manner of determining such price, the terms of the
Designated Securities, including the terms on which and terms of the securities
into which the Designated Securities will be exchangeable, the purchase price to
the Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters, the number of such Designated Securities to be purchased by each
Underwriter and the commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such Firm
and Optional Designated Securities, if any, and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Trust Agreement
with respect thereto or the Registration Statement and Prospectus as amended or
supplemented) the terms of such Designated Securities. Any Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The standard provisions set forth herein will be incorporated by
reference in any Pricing Agreement. The obligations of the Underwriters under
each Pricing Agreement shall be several and not joint.
2. Each of the Designated Trust and the Company, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File Nos. 333-40837 and
333-15951-01 through 333-40837-03) (the "Initial Registration
Statement") in respect of the preferred securities of the Trusts,
including the Designated Securities, and the junior subordinated
deferrable interest debentures and guarantees of the Company, as
guarantor, including the Subordinated Debentures and the Guarantee, has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to
such registration statement, but including all documents incorporated
by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than the registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed, or transmitted for filing, with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Act, each in the form heretofore delivered
to the Representatives); and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b)
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<PAGE>
Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission
(any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the Initial Registration
Statement at the time such part of the Initial Registration Statement
became effective, but excluding Form T-1, or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the preferred
securities of the Trusts and the junior subordinated deferrable
interest debentures and the guarantees of the Company related to such
preferred securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to
the date of the relevant Pricing Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Designated Trust or the Company
by an Underwriter of Designated Securities through
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the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Designated Trust or the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Designated Securities or to that part of the Registration
Statement which shall constitute the Statement of Eligibility under the
Trust Indenture Act (Form T-1) of The First National Bank of Chicago;
(d) Since the date of the latest audited financial statements
included in or incorporated by reference in the Registration Statement
and the Prospectus, there has not been any material adverse change, or
any development involving a prospective material adverse change, in the
creditworthiness of the Company and its subsidiaries on a consolidated
basis otherwise than as set forth or contemplated in the Prospectus;
(e) Each of the Company and The Bank of New York (the "Bank") has
been duly organized and is validly existing as a corporation or banking
corporation, as the case may be, and is an existing corporation or
banking corporation, as the case may be, in good standing under the
laws of the State of New York;
All of the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable; and all
of the issued shares of capital stock of the Bank have been duly and validly
authorized and issued, are fully paid and non-assessable (except as provided in
Article III of the Banking Law of the State of New York) and are owned by the
Company, free and clear of all liens, encumbrances, equities or claims;
(g) The Designated Trust has been duly organized and is validly
existing as a business trust in good standing under the laws of the
State of Delaware, with power and authority (trust and other) to own
its property and conduct its business as described in the Prospectus,
and to enter into and perform its obligations under this Agreement and
the Designated Securities and to consummate the transactions
contemplated by the Pricing Agreement with respect to such Designated
Securities (including without limitation the provisions hereof
incorporated by reference therein); the Designated Trust has no
subsidiaries and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Designated Trust; the
Designated Trust has conducted and will conduct no business other than
the
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<PAGE>
transactions contemplated by the Pricing Agreement (including
without limitation the provisions hereof incorporated by reference
therein) and described in the Prospectus as amended and supplemented
with respect to the Designated Securities; the Designated Trust is not
a party to or bound by any agreement or instrument other than the
Pricing Agreement with respect to such Designated Securities (including
without limitation the provisions hereof incorporated by reference
therein), the Trust Agreement of the Designated Trust and the
agreements and instruments contemplated by such Trust Agreement and
described in the Prospectus as amended and supplemented with respect to
the Designated Securities; the Designated Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by the Pricing Agreement with respect to such Designated
Securities (including without limitation the provisions hereof
incorporated by reference therein) and the Trust Agreement of the
Designated Trust and described in the Prospectus as amended and
supplemented with respect to such Designated Securities; the Designated
Trust is not a party to or subject to any action, suit or proceeding of
any nature; the Designated Trust is not, and at the Time of Delivery
will not be, classified as an association taxable as a corporation for
United States federal income tax purposes;
(h) The Designated Securities have been duly authorized on behalf
of the Designated Trust by the Company, as depositor of the Designated
Trust, and, when the Firm Designated Securities are issued and
delivered pursuant to the Pricing Agreement (including without
limitation the provisions hereof incorporated by reference therein)
with respect to such Designated Securities and, in the case of any
Optional Designated Securities, pursuant to Over-allotment Options (as
defined in Section 3 hereof) with respect to such Designated
Securities, such Designated Securities will have been duly and validly
issued and fully paid and non-assessable beneficial interests in the
Designated Trust entitled to the benefits provided by the Trust
Agreement, which will be substantially in the form filed as an exhibit
to the Registration Statement; and the preferred securities of the
Designated Trust conform to the description thereof contained in the
Registration Statement and the Designated Securities will conform to
the description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(i) The holders of the Designated Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
the issuance of the Designated Securities is not subject to preemptive
or similar rights;
(j) The Common Securities of the Designated Trust have been duly
authorized on behalf of the Designated Trust by the Company, as
depositor of the Designated Trust, and upon delivery by the Designated
Trust to the Company against payment therefor as set forth in the Trust
Agreement, will be duly and validly issued and nonassessable beneficial
interests in the Designated Trust and will conform to the description
thereof contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and at
the Time of Delivery (as defined in Section 4 hereof), all of the
issued and outstanding Common Securities of the Designated Trust will
be directly owned by the Company free and clear of liens, encumbrances,
equities or claims;
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(k) The Guarantee, the Trust Agreement, the Subordinated
Debentures, the Agreement as to Expenses and Liabilities and the
Indenture (the Guarantee, the Trust Agreement, the Subordinated
Debentures, the Agreement as to Expenses and Liabilities and the
Indenture being collectively referred to as the "Company Agreements")
have each been duly authorized and when validly executed and delivered
by the Company and, in the case of the Guarantee, by the Guarantee
Trustee (as defined in the Guarantee), in the case of the Trust
Agreement, by the Issuer Trustees (as defined in the Trust Agreement)
and, in the case of the Indenture, by the Trustee named therein (the
"Debenture Trustee"), and, in the case of the Subordinated Debentures,
when validly issued by the Company and validly authenticated and
delivered by the Debenture Trustee, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; the Trust Agreement, the
Indenture and the Guarantee have each been duly qualified under the
Trust Indenture Act; the Subordinated Debentures are entitled to the
benefits of the Indenture; and the Company Agreements, which will be in
substantially the form filed as exhibits to the Registration Statement,
will conform to the descriptions thereof in the Prospectus as amended
or supplemented with respect to the Designated Securities to which they
relate;
(l) The issue and sale of the Designated Securities and the
compliance by the Designated Trust with all of the provisions of the
Designated Securities, the Trust Agreement, the Pricing Agreement
(including without limitation the provisions hereof incorporated by
reference therein) with respect to such Designated Securities and the
Over-allotment Option with respect to any Optional Designated
Securities, the purchase of the Subordinated Debentures by the
Designated Trust and the consummation of the transactions contemplated
herein and therein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Designated Trust is a party or by
which the Designated Trust is bound or to which any of the property or
assets of the Designated Trust is subject, nor will such action result
in any violation of the provisions of the Trust Agreement or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Designated Trust or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Designated
Securities and the Common Securities by the Designated Trust, the
purchase of the Subordinated Debentures by the Designated Trust or the
consummation by the Designated Trust of the transactions contemplated
by the Pricing Agreement (including without limitation the provisions
hereof incorporated by reference therein) with respect to such
Designated Securities or the Trust Agreement, except such as have been,
or will have been prior to the Time of Delivery, obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters;
(m) The issuance by the Company of the Guarantee, the compliance
by the Company with all of the provisions of the Pricing Agreement
(including without limitation the provisions hereof incorporated by
reference therein) with respect to such Designated
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<PAGE>
Securities, the execution, delivery and performance by the Company
of the Company Agreements, and the consummation of the transactions
contemplated herein and therein will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or bylaws of the Company or the charter or by-laws of any
of its subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue of the Guarantee or the
consummation by the Company of the transactions contemplated by the
Pricing Agreement (including without limitation the provisions hereof
incorporated by reference therein) with respect to such Designated
Securities or the Company Agreements except such as have been, or will
have been obtained prior to the Time of Delivery 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 Designated Securities by the
Underwriters;
(n) 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 (including the Designated Trust),
which might result in any material adverse change in the financial
condition, shareholders' equity or results of operations of the Company
and its subsidiaries (including the Designated Trust) considered as one
enterprise;
(o) Neither the Designated Trust nor the Company is, nor after
giving effect to the offering and sale of the Designated Securities
will either be, an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(p) Deloitte & Touche LLP, who have certified the financial
statements of the Company and its subsidiaries included in or
incorporated by reference in the Prospectus, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(q) The Pricing Agreement with respect to the Designated
Securities (incorporating the provisions hereof) has been duly
authorized, executed and delivered by the Company and the Designated
Trust.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Firm Designated Securities, the several Underwriters propose to offer the
Firm Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable to
any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an
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<PAGE>
"Over-allotment Option") to purchase at their election up to the number of
Optional Designated Securities specified in such Pricing Agreement, on the terms
set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such election
to purchase Optional Designated Securities may be exercised only by written
notice from the Representatives to the Designated Trust and the Company, given
within the period specified in the Pricing Agreement, setting forth the
aggregate number of Optional Designated Securities to be purchased and the date
on which such Optional Designated Securities are to be delivered (the Second
Time of Delivery as defined in Section 4 hereof), as determined by the
Representatives but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Representatives, the Company and the
Designated Trust otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice set forth in
such Pricing Agreement.
The number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which each
of the Company and the Designated Trust has been advised by the Representatives
have been attributed to such Underwriter, provided that, if each of the Company
and the Designated Trust has not been so advised, the number of Optional
Designated Securities to be so added shall be, in each case, that proportion of
Optional Designated Securities which the number of Firm Designated Securities to
be purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of Optional
Designated Securities which the Underwriters elect to purchase.
4. Certificates representing the Firm Designated Securities and the
Optional Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Designated Trust, shall be delivered by or on behalf of the Designated Trust
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer in immediately available funds to the account of the Designated Trust
specified in such Pricing Agreement, (i) with respect to the Firm Designated
Securities, all in the manner and at the place and time and date specified in
such Pricing Agreement or at such other place and time and date as the
Representatives and the Designated Trust may agree upon in writing, such time
and date being herein called the "First Time of Delivery" and (ii) with respect
to the Optional Designated Securities, if any, in the manner and at the time and
date specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives and
the Designated Securities may agree upon in writing, such time and date, if not
the First Time of Delivery, herein called the "Second Time of Delivery". Each
such time and date for delivery is herein called a "Time of Delivery".
5. Each of the Designated Trust and the Company, jointly and severally,
agrees with each of the Underwriters of any Designated Securities:
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<PAGE>
(a) To file the Prospectus as amended or supplemented with respect
to the Designated Securities with the Commission; to make no further
amendment or any supplement to the Registration Statement or Prospectus
as amended or supplemented after the date of the Pricing Agreement
relating to such Designated Securities and prior to the Time of
Delivery for such Designated Securities which shall be reasonably
disapproved by the Representatives for such Designated Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after the Time of Delivery
for such Designated Securities and furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Designated Securities; to
advise the Representatives, promptly after it receives notice thereof,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Designated Securities, of the suspension of the qualification of such
Designated Securities or the Subordinated Debentures issuable upon
termination of the Designated Trust for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Designated Securities or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities or the Subordinated Debentures issuable upon termination of
the Designated Trust for offering and sale under the securities laws of
such jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Designated Securities, provided that
in connection therewith neither the Designated Trust nor the Company
shall be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may
from time to time reasonably request, and, if the delivery of a
prospectus is required at any time prior to nine months after the time
of issue of the Prospectus in connection with the offering or sale of
the Designated Securities or the Subordinated Debentures issuable upon
termination of the Designated Trust and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an
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amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in
case any Underwriter is required to deliver a Prospectus in connection
with sales of the Designated Securities at any time nine months or more
after the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) In the case of the Company, to make generally available to its
security holders as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11 (a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any preferred securities in any of
the Trusts, any other beneficial interests in the assets of the
Designated Trust or any other Trust, or any preferred securities or any
other securities of the Designated Trust or the Company, as the case
may be, that are substantially similar to such Designated Securities
(including any guarantee of such securities) or any securities that are
convertible into or exchangeable for, or that represent the right to
receive securities, preferred securities or any such substantially
similar securities of either the Designated Trust, any other Trust or
the Company that are subordinated to the Senior Debt (as defined in the
Indenture) of the Company in a manner substantially similar to the
subordination of the Subordinated Debentures without the prior written
consent of the Representatives;
(f) In the case of the Company, to issue the Guarantee
concurrently with the issue and sale of the Designated Securities as
contemplated in the Pricing Agreement with respect to the Designated
Securities and in the Prospectus Supplement as amended and supplemented
with respect to the Designated Securities;
(g) To furnish to the holders of the Designated Securities as soon
as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, shareholders'
equity and cash flow of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail; and
(h) If the Company and the Designated Trust elect to rely upon
Rule 462(b), the Company and the Designated Trust shall file a Rule
462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the
Pricing Agreement with respect to the Designated Securities, and the
Company and the Designated Trust shall at the time of filing either pay
to the
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Commission the filing fee for the Rule 462(b) Registration Statement
or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Trusts' and the Company's counsel and
accountants in connection with the registration of the preferred securities of
the Trusts and the guarantees and junior subordinated deferrable interest
debentures of the Company under the 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 the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, these standard provisions, the Pricing Agreement, the Trust
Agreement, the Indenture, the Guarantee, any Blue Sky or similar investment
surveys or memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities, the Guarantee and the Subordinated
Debentures for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Designated Securities and the Subordinated
Debentures; (v) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required reviews by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Designated Securities and the issuance of the Guarantee and the Subordinated
Debentures; (vi) the cost of preparing the Designated Securities and the
Subordinated Debentures; (vii) the fees and expenses of any Trustee, Debenture
Trustee and Guarantee Trustee, and any agent of any trustee and the fees and
disbursements of counsel for any trustee in connection with the Trust Agreement,
the Indenture, the Guarantee and the Designated Securities; (viii) the cost of
qualifying the Designated Securities with The Depository Trust Company; (ix) all
fees and expenses in connection with listing the Designated Securities (and the
Subordinated Debentures, if necessary) on the New York Stock Exchange and the
cost of registering the Designated Securities (and the Subordinated Debentures,
if necessary) under Section 12 of the Exchange Act; and (x) all other costs and
expenses incident to the performance of its obligations or the obligations of
the Designated Trust under the applicable Pricing Agreement under any
Over-allotment Options which are not otherwise specifically provided for in this
Section 6. It is understood, however, that, except as provided in this Section
6, Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Designated Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Company in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Designated Trust
and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
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(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Milbank, Tweed, Hadley & McCloy, Counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated each Time of Delivery for such Designated Securities, with
respect to the incorporation of the Company and the formation of the
Designated Trust, the validity of the Designated Securities, the
Subordinated Debentures, the Guarantee, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Paul Immerman, Senior Counsel of The Bank of New York, shall
have furnished to the Representatives such written opinion or opinions,
dated each Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) Each of the Company and the Bank has been duly
incorporated and is an existing corporation or banking
corporation, respectively, in good standing under the laws of the
State of New York and the Company has the corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented relating to
the Designated Securities;
(ii) The Company Agreements have each been duly authorized,
executed and delivered by the Company and constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their respective 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; the Company
Agreements conform to the descriptions thereof in the Prospectus
as amended or supplemented; the Subordinated Debentures are
entitled to the benefits provided by the Indenture; and the Trust
Agreement, the Indenture and the Guarantee have each been duly
qualified under the Trust Indenture Act;
(iii) The Subordinated Debentures being issued at such Time
of Delivery have been duly authorized in conformity with the terms
of the Indenture, and when such Subordinated Debentures have been
duly executed, authenticated and issued in conformity with the
Indenture and delivered against payment in accordance with the
Pricing Agreement with respect to the Designated Securities will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
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(iv) The Designated Securities have been duly authorized by
the Company, as depositor, on behalf of the Designated Trust;
(v) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company or the
Designated Trust, as the case may be, 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 Designated Securities by the Designated Trust to the
Underwriters and the issuance, sale and delivery by the Company to
the Designated Trust of the Subordinated Debentures and the
execution and delivery by the Company of the Guarantee with
respect to the Designated Securities, in accordance with the
Pricing Agreement with respect to the Designated Securities, have
been obtained or made (except that such counsel need express no
opinion with respect to Federal or state securities laws, other
antifraud laws, fraudulent transfer laws, the Employee Retirement
Income Security Act of 1974 and related laws and laws that
restrict transactions between United States persons and citizens
or residents of certain foreign countries);
(vi) The Pricing Agreement (including without limitation the
provisions hereof incorporated by reference therein) with respect
to the Designated Securities has been duly authorized, executed
and delivered by the Company;
(vii) The execution and delivery by the Company of the
Indenture, the Guarantee and the Pricing Agreement with respect to
the Designated Securities do not, and the issuance of the
Subordinated Debentures being issued at such Time of Delivery in
accordance with the Indenture, the sale by the Company of the
Subordinated Debentures as contemplated in the Prospectus as
amended and supplemented and the performance by the Company of its
obligations under the Company Agreements, the Pricing Agreement
with respect to the Designated Securities and the Subordinated
Debentures will not violate the Company's Restated Certificate of
Incorporation, as amended, or By-Laws, in each case as in effect
at the date of such opinion, result in a default under or breach
of certain agreements specified in an annex to such opinion, in
each case as in effect at the date of such opinion, or violate any
existing Federal law of the United States or law of the State of
New York applicable to the Company (except that such counsel need
express no opinion with respect to Federal or state securities
laws, other antifraud laws, fraudulent transfer laws, the Employee
Retirement Income Security Act of 1974 and related laws and laws
that restrict transactions between United States persons and
citizens or residents of certain foreign countries, and insofar as
performance by the Company of its obligations under the Indenture,
the Pricing Agreement with respect to the Designated Securities
and the Subordinated Debentures 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); and
[THE FOLLOWING OPINION SHALL NOT BE REQUIRED IF IT IS PROVIDED BY
SULLIVAN & CROMWELL] (viii) Each part of the Registration Statement, when such
part became effective, and the Prospectus, as of its date (other than the
financial statements and other financial data therein, as to which such counsel
need express no opinion), appeared on their face to be appropriately responsive,
in all
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material respects relevant to the offering of the Securities, to the
requirements of the Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder; further, nothing which came to his
attention in the course of his review (as described in such opinion) has caused
him to believe that, insofar as relevant to the offering of the Designated
Securities, any part of the Registration Statement, when such part became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of its date (other
than the financial statements and other financial data therein, as to which such
counsel need express no opinion), contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; also, nothing that has come to such counsel's attention in the
course of certain procedures (as described in such opinion) has caused such
counsel to believe that the Prospectus, as of the date and time of delivery of
such opinion, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. Such
counsel may state that he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for those made under the captions
"Description of Junior Subordinated Debentures", "Description of Preferred
Securities", "Description of Guarantees", "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures, the Expense
Agreement and the Guarantees" and "Plan of Distribution" in the Prospectus and
under the captions "Certain Terms of Series B Preferred Securities", "Certain
Terms of Series B Subordinated Debentures" and "Underwriting" in the Prospectus
as amended and supplemented insofar as they relate to provisions of documents
therein described and that he does not express any opinion or belief as to the
financial statements or other financial data contained in the Registration
Statement or the Prospectus or as to the statements of the eligibility of the
Trustee.]
(d) Sullivan & Cromwell, special counsel to the Company, shall
have furnished to the Representatives their opinion or opinions, dated
each Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) The Indenture has been duly authorized, executed and
delivered by the Company 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;
(ii) The Subordinated Debentures being issued at such Time of
Delivery have been duly authorized in conformity with the terms of
the Indenture, and when such Subordinated Debentures have been
duly executed, authenticated and issued in conformity with the
Indenture and delivered against payment in accordance with this
Agreement will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms,
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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 Guarantee has been duly authorized, executed and
delivered by the Company 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;
(iv) The Pricing Agreement with respect to the Designated
Securities has been duly authorized, executed and delivered by the
Company;
(v) The Trust is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(vi) The statements set forth in the Prospectus under the
captions "Description of Junior Subordinated Debentures",
"Description of Preferred Securities", "Description of Guarantees"
and "Relationship Among the Preferred Securities, the
Corresponding Junior Subordinated Debentures, the Expense
Agreement and the Guarantees" and in the Prospectus as amended or
supplemented under the captions "Certain Terms of Series B
Preferred Securities" and "Certain Terms of Series B Subordinated
Debentures" insofar as they purport to constitute summaries of
certain terms of the Designated Securities, the Subordinated
Debentures or the Company Agreements, in each case constitute
accurate summaries of the terms of the Company Agreements and of
such securities, as set forth in the Company Agreements, in all
material respects; and
[THE FOLLOWING OPINION SHALL NOT BE REQUIRED IF IT IS PROVIDED BY PAUL
LMMERMAN] (vii) Each part of the Registration Statement, when such part became
effective, and the Prospectus, as of its date (other than the financial
statements and other financial data therein, as to which such counsel need
express no opinion), appeared on their face to be appropriately responsive, in
all material respects relevant to the offering of the Securities, to the
requirements of the Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder; further, nothing which came to 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
Designated Securities, any part of the Registration Statement, when such part
became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as of its date
(other than the financial statements and other financial data therein, as to
which such counsel need express no opinion), contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; also, nothing that has come to such counsel's attention in
the course of certain procedures (as described in such opinion) has caused such
counsel to believe that the
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<PAGE>
Prospectus, as of the date and time of delivery of such opinion, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel may state
that they do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus except for those made under the captions "Description of Junior
Subordinated Debentures", "Description of Preferred Securities", "Description of
Guarantees", "Relationship Among the Preferred Securities, the Corresponding
Junior Subordinated Debentures, the Expense Agreement and the Guarantees" and
"Plan of Distribution" in the Prospectus and under the captions "Certain Terms
of Series B Preferred Securities", "Certain Terms of Series B Subordinated
Debentures" and "Underwriting" in the Prospectus as amended and supplemented
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 statements of the eligibility of the Trustee.]
(e) Richards, Layton & Finger, special Delaware Counsel to the
Designated Trust and the Company, shall have furnished to the
Representatives, the Company and the Designated Trust such written
opinion or opinions, dated each Time of Delivery for such Designated
Securities, in form and substance satisfactory to you, to the effect
that:
(i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence
of the Designated Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to own
property and conduct its business, all as described in the
Prospectus;
(iii) The Trust Agreement constitutes a valid and legally
binding obligation of the Company and the Trustees, enforceable
against each of the Company and the Trustees, in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to (a)
execute and deliver the Pricing Agreement relating to the
Designated Securities (incorporating by reference the provisions
hereof) and to perform its obligations under such Pricing
Agreement, and (b) issue and perform its obligations under the
Designated Securities and the Common Securities;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust of
the Pricing Agreement relating to the Designated Securities
(incorporating by reference the provisions
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hereof) and the performance by the DesignatedTrust of its
obligations thereunder, have been duly authorized by all
necessary action on the part of the Designated Trust;
(vi) The Designated Securities have been duly authorized by
the Trust Agreement and are duly and validly issued and, subject
to the qualifications set forth herein, fully paid and
nonassessable beneficial interests in the Designated Trust and are
entitled to the benefits provided by the Trust Agreement; the
Securityholders, as beneficial owners of the Designated Trust,
will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware; provided that such counsel may note that the
Securityholders may be obligated, pursuant to the Trust Agreement,
to (a) provide indemnity and/or security in connection with and
pay taxes or governmental charges arising from transfers or
exchanges of certificates representing the Designated Securities
and the issuance of replacement certificates representing the
Designated Securities and (b) provide security and indemnity in
connection with requests of or directions to the Property Trustee
(as defined in the Trust Agreement) to exercise its rights and
remedies under the Trust Agreement;
(vii) The Common Securities have been duly authorized by the
Trust Agreement and are validly issued and represent beneficial
interests in the Designated Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the
Common Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of
Designated Securities and the Common Securities, the execution and
delivery of the Pricing Agreement (incorporating by reference the
provisions hereof) with respect to the Designated Securities and
performance by the Designated Trust of such Pricing Agreement, the
consummation by the Designated Trust of the transactions
contemplated thereby and compliance by the Designated Trust with
its obligations thereunder will not violate (a) any of the
provisions of the Certificate of Trust of the Designated Trust or
the Trust Agreement, or (b) any applicable Delaware law or
administrative regulation;
(x) Assuming that the Designated Trust derives no income from
or connected with services provided within the State of Delaware
and has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by the
Designated Trust solely in connection with the issuance and sale
of the Designated Securities and the Common Securities. In
rendering the opinion expressed in this paragraph (x), such
counsel need express no opinion concerning the securities laws of
the State of Delaware;
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<PAGE>
(xi) Assuming that the Designated Trust derives no income
from or connected with services provided within the State of
Delaware and has no assets, activities (other than maintaining the
Delaware Trustee and the filing of documents with the Secretary of
State of the State of Delaware) or employees in the State of
Delaware, the Securityholders (other than those holders of the
Designated Securities who reside or are domiciled in the State of
Delaware) will have no liability for income taxes imposed by the
State of Delaware solely as a result of their participation in the
Designated Trust, and the Designated Trust will not be liable for
any income tax imposed by the State of Delaware;
(f) Sullivan & Cromwell, tax counsel for the Designated Trust and
the Company, shall have furnished to you their written opinion, dated
the respective Time of Delivery, in form and substance satisfactory to
you, to the effect that such firm confirms its opinion set forth in the
Prospectus as amended or supplemented under the caption "Certain
Federal Income Tax Consequences";
(g) At each Time of Delivery with respect to the Designated
Securities, Ernst & Young LLP (and/or, if specified in the Pricing
Agreement relating to such Designated Securities, one or more other
independent accountants acceptable to the Representatives) shall have
furnished to you a letter or letters, dated the date of delivery
thereof, in form and substance satisfactory to you, to the effect set
forth in Annex II hereto or as may otherwise be agreed in an additional
schedule to the Pricing Agreement with respect to such Designated
Securities;
(h) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended and
supplemented with respect to the Designated Securities there shall not
have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as so amended and supplemented,
the effect of which is in the Representatives' judgment after
consultation with the Company so material and adverse as to make it
impractical or inadvisable to proceed with the public offering of the
Designated Securities on the terms and in the manner contemplated in
the Prospectus as so amended and supplemented;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any downgrading in
the rating of any debt securities or preferred stock 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 or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating);
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities declared by either Federal
or
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New York State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this clause (iii) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Firm Designated Securities
or Optional Designated Securities or both on the terms and in the
manner contemplated in the Prospectus as amended or supplemented
relating to the Designated Securities;
(k) If required by the Pricing Agreement relating to the
Designated Securities, the Designated Securities to be sold by the
Designated Trust at the respective Time of Delivery shall have been
duly listed, subject to notice of issuance, on the New York Stock
Exchange; and
(l) The Designated Trust and the Company shall have furnished or
caused to be furnished to the Representatives at each Time of Delivery
for the Designated Securities certificates of officers of the
Designated Trust and the Company satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Designated
Trust and the Company herein at and as of such Time of Delivery, as to
the performance by each of the Designated Trust and the Company of all
of its obligations hereunder to be performed at or prior to such Time
of Delivery, as to the matters set forth in subsections (a) and(h) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company and the Designated Trust will, jointly and
severally, indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company and the
Designated Trust shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representative expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Designated Trust against any losses, claims, damages or liabilities to which
the Company or the Designated Trust may become subject insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or
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<PAGE>
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities through the
Representatives expressly for use therein; and will reimburse the Company or the
Designated Trust, as the case may be, for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such action or
claim as such expenses are incurred.
(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
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
No indemnifying party shall without the prior written consent of the
indemnified party effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is a party and indemnity has been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof, referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Designated Trust on the one
hand and the Underwriters of the Designated Securities on the other from the
offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the 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 and the
Designated Trust on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
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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 and the Designated Trust on the one hand and
the Underwriters of the Designated Securities on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Designated Trust bear to the total
compensation received by such Underwriters in connection with the offering of
Designated Securities, in each case as set forth in the footnote to the table on
the cover page of the Prospectus as amended and supplemented with respect to the
Designated Securities. 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 and the Designated Trust on the one hand or
the Underwriters of the Designated Securities on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Designated Trust and the
Underwriters 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 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), no
Underwriter of the Designated Securities shall be required to contribute any
amount in excess of the amount by which the total price at which the Designated
Securities purchased by it were resold by it as contemplated in the Prospectus
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the Designated Trust under this
Section 8 shall be in addition to any liability which the Company or the
Designated Trust may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters 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 Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or the Optional Designated Securities which it
has agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or such Optional Designated Securities, as the case may
be, then the Designated Trust and the Company shall be
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entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase such
Designated Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Designated Trust and the
Company that they have so arranged for the purchase of such Designated
Securities, or the Designated Trust and the Company notifies the Representatives
that it has so arranged for the purchase of such Designated Securities, the
Representatives or the Designated Trust and the Company shall have the right to
postpone the Time of Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Designated
Trust and the Company agree to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
these standard provisions shall include any person substituted under this
Section 9 with like effect as if such person had originally been a party to the
Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust and the Company as provided in subsection (a) above, the
aggregate number of such Designated Securities which remains unpurchased does
not exceed one-eleventh of the aggregate number of the Firm Designated
Securities or Optional Designated Securities, as the case may be, to be
purchased at the respective Time of Delivery, then the Designated Trust and the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share (based
on the number of Firm Designated Securities or Optional Designated Securities,
as the case may be, which such Underwriter agreed to purchase under such Pricing
Agreement) of the Firm Designated Securities or Optional Designated Securities,
as the case may be, of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust and the Company as provided in subsection (a) above, the
aggregate number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number of the Firm Designated Securities or Optional Designated
Securities, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Designated Trust and
the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Designated Securities or
the Over- allotment Option relating to such Optional Designated Securities, as
the case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Designated Securities or the Over-allotment
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Option relating to such Optional Designated Securities, as the case may be,
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Designated Trust or the Company, except for the expenses to be
borne by the Designated Trust, the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust, the Company and the several
Underwriters, as set forth herein or made by or on behalf of them, respectively,
pursuant hereto, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the
Designated Trust, the Company, or any officer or director or controlling person
of the Designated Trust or the Company, and shall survive delivery of and
payment for the Designated Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Designated Trust nor the
Company shall then be under any liability to any Underwriter with respect to the
Firm Designated Securities or Optional Designated Securities covered by such
Pricing Agreement except as provided in Section 6 and Section 8 hereof; but, if
for any other reason, Designated Securities are not delivered by or on behalf of
the Designated Trust as provided herein, the Designated Trust and the Company
will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Designated Trust and the Company
shall then be under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Company, as the case may be, set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Designated Trust and the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. Each Pricing Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Designated Trust and the Company and, to
the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Designated Trust or the
-23-
<PAGE>
Company and each person who controls the Designated Trust, the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of any such Pricing Agreement. No purchaser of any of the Designated
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Each Pricing Agreement may be executed by any one or more of the
parties thereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute
one and the same instrument.
-24-
<PAGE>
ANNEX I
Pricing Agreement
To the Underwriters named in
Schedule I hereto
c/o [Names and Addresses of Representatives]
----------- ----, ----
Dear Sirs:
BNY Capital _________________, a statutory business trust formed under
the laws of the State of Delaware (the "Designated Trust") and The Bank of New
York Company, Inc., a New York corporation (the "Company"), propose, subject to
the terms and conditions stated herein and in the Underwriting Agreement
Standard Provisions (December 1997) (the "Standard Provisions"), to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
preferred securities of the Designated Trust specified in Schedule II hereto.
The Firm Designated Securities and any Optional Designated Securities the
Underwriters may elect to purchase are herein referred to as the "Designated
Securities." Each of the provisions of the Standard Provisions is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Pricing Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Standard Provisions so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Standard Provisions and the
address of the Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, (a) the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Designated Securities, as provided below, the Designated Trust agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from
<PAGE>
the Designated Trust at the purchase price to the Underwriters set forth in
Schedule II hereto that portion of the number of Optional Designated Securities
as to which such election shall have been exercised.
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such election
to purchase Optional Designated Securities may be exercised by written notice
from the Representatives to the Designated Trust and the Company given within a
period of [30] calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives, the Company and the Designated Trust
otherwise agree in writing, no earlier than two or later than ten business days
after the date of such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us [ten] counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Standard Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Designated Trust and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By: ______________________________________
Name:
Title:
BNY CAPITAL _______________________________
By: The Bank of New York Company,
Inc., as Depositor
By: _______________________________________
Name:
Title:
Accepted as of the date hereof:
-2-
<PAGE>
[Name(s) of Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
__________________________________
By: ______________________________
Name:
Title:
On behalf of each of the Underwriters
named on Schedule I hereto
-3-
<PAGE>
SCHEDULE I
(TO PRICING AGREEMENT)
- -------------------------------------------------------------------------------
Number of
Number Maximum
of Firm Optional
Designated Designated
Securities to Securities to
Underwriter be Purchased be Purchased
- ----------- ------------- -------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[Number of Representatives]............
- -------------------------------------------------------------------------------
[Name of Underwriters]................
- -------------------------------------------------------------------------------
Total ------------- -------------
- -------------------------------------------------------------------------------
============= =============
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE II
(TO PRICING AGREEMENT)
DESIGNATED TRUST:
BNY Capital_____________________
TITLE OF DESIGNATED SECURITIES:
_______%_________________________ Preferred Securities, Series _______
AGGREGATE PRINCIPAL AMOUNT:
[Aggregate liquidation amount] [Number] of Firm Designated
Securities: [$]_________________
Maximum [aggregate liquidation amount] [Number] of Optional
Designated Securities: [$]____________________
INITIAL OFFERING PRICE TO PUBLIC
[$____ per Designated Security] [_______% of principal amount of the
Designated Securities]
PURCHASE PRICE BY UNDERWRITERS:
[$_____ per Designated Security] [________% of the principal amount
of the Designated Securities]
UNDERWRITERS' COMPENSATION:
$_____ per Designated Security
FORM OF DESIGNATED SHARES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
ACCOUNT FOR PAYMENT OF PURCHASE PRICE:
___________________________________________
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated
_____________, between the Company and the
Trustees named therein
<PAGE>
GUARANTEE:
Guarantee Agreement, dated as of between Company,
as guarantor, and Guarantee Trustee
SUBORDINATED DEBENTURES:
_____% Junior Subordinated Debentures, Series _____
MATURITY:
INTEREST RATE:
--------%
INTEREST PAYMENT DATES:
EXTENSION PERIOD:
[20 quarters]
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
No sinking fund provisions.
[LISTING:
The Company and the Designated Trust shall each use its best
efforts to list, subject to notice of issuance, the Designated
Securities on the New York Stock Exchange and, if the Corporation
elects to terminate the Designated Trust and to distribute the
Subordinated Debentures to the holders of the Designated Securities in
liquidation of the Designated Trust, to use its best efforts to list
the Subordinated Debentures, subject to notice of issuance, on the New
York Stock Exchange, prior to such distribution.]
[ACCOUNTANTS LETTERS:
At each Time of Delivery, [insert relevant provisions, if required]
[FIRST] TIME OF DELIVERY:
9:00 a.m., New York City time _________ ___, _______
[SECOND TIME OF DELIVERY:
-2-
<PAGE>
The time and date specified in the notice [delivered/to be delivered]
by the Underwriters pursuant to Section 3 of the Standard Provisions.]
NAMES OF UNDERWRITERS AND NUMBER
OF FIRM DESIGNATED SECURITIES AND
MAXIMUM NUMBER OF OPTIONAL DESIGNATED
SECURITIES TO BE PURCHASED:
As described on Schedule I hereto.
CLOSING LOCATION:
Sullivan & Cromwell
125 Broad Street
New York, New York
NAMES AND ADDRESSES OF REPRESENTATIVES:
-3-
<PAGE>
ANNEX II
Accountants' Letter
Pursuant to Section 7(g) of the Underwriting Agreement Standard
Provisions (December 1997), the Company's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder, and the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them;
(ii) In their opinion, the consolidated financial statements, and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder; and they have made a review of the interim
financial information of the Company and its subsidiaries for the periods
specified in such letter in accordance with standards established by the
American Institute of Certified Public Accountants;
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a limited review of the unaudited consolidated financial
statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused 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
amount in the audited consolidated financial statements for such fiscal years
which was included or incorporated by reference in the Company's Annual Reports
on Form 10-K for the last three fiscal years;
(B) the unaudited information with respect to the annual
consolidated results of operations and financial position for such fiscal years
which was included or incorporated by reference in the Prospectus does not agree
with the corresponding amounts in the audited consolidated financial statements
for such fiscal years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for the last three years;
(C) the unaudited consolidated financial statements included or
incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act and published rules and regulations thereunder or are not fairly presented
in conformity with generally accepted accounting principles applied on a basis
<PAGE>
substantially consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(D) any unaudited financial data included in the Prospectus as at
any time, or for any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company do not agree with the
corresponding amounts in the unaudited consolidated financial statements from
which such data are derived;
(E) the unaudited financial data included in the Prospectus do not
agree with the corresponding amounts in the unaudited financial statements which
were not included in the Prospectus but from which were derived such financial
data;
(F) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated shareholders'
equity or allowance for loan losses, in each case as compared with amounts shown
in the latest consolidated statement of condition included or incorporated by
reference in the Prospectus except in each case for changes which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(G) for the period from the date of the latest complete
consolidated financial statements included or incorporated by reference in the
Prospectus to the specified date referred to in (F) above there were any
decreases in consolidated net interest income, net interest income after
provision for loan losses, or the total or fully diluted per share amounts of
net income of the Company, in each case as 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
Underwriters 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 Underwriters or in documents
incorporated by reference in the Prospectus specified by the
Underwriters, 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.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement Standard Provisions (December
1997) as of the date of the letter delivered on the date of the Pricing
Agreement for purposes of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) in
-2-
<PAGE>
relation to the applicable Designated Securities for purposes of the letter
delivered at the Time of Delivery for such Designated Securities.
-3-
Exhibit 4.2
THE BANK OF NEW YORK COMPANY, INC.
7.05% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, SERIES D
No. AIII-1 $309,278,350
THE BANK OF NEW YORK COMPANY, INC., a corporation organized and
existing under the laws of New York (hereinafter called the "Corporation", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to The First National Bank of
Chicago, as Property Trustee for BNY Capital III, a statutory business trust
formed under the laws of the State of Delaware (hereinafter called the "Issuer
Trust"), or registered assigns, the principal sum of Three Hundred Nine Million
Two Hundred Seventy Eight Thousand Three Hundred and Fifty (309,278,350) Dollars
on March 1, 2028; provided that the Corporation may (i) shorten the Stated
Maturity of the principal of this Security to a date not earlier than March 1,
2013, and (ii) extend the Stated Maturity of the principal of this Security at
any time on one or more occasions, subject to certain conditions specified in
Section 3.15 of the Indenture, but in no event to a date later than March 1,
2047. The Corporation further promises to pay interest on said principal sum
from March 24, 1998 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on March 1, June 1, September 1 and December 1 of
each year, commencing June 1, 1998, at the rate of 7.05% per annum, together
with Additional Sums, if any, as provided in Section 10.6 of the Indenture,
until the principal hereof is paid or duly provided for or made available for
payment; provided that any overdue principal, premium or Additional Sums and any
overdue installment of interest shall bear Additional Interest at the rate of
7.05% per annum (to the extent that the payment of such interest shall be
legally enforceable), compounded quarterly, from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand. The amount of interest payable for any period less than a
full interest period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in such period. The
amount of interest payable for any full interest period shall be computed by
dividing the applicable rate per annum by four. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest installment which shall be the
Business Day next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
So long as no Event of Default has occurred and is continuing, the
Corporation shall have the right, at any time during the term of this Security,
from time to time to defer the payment of interest on this Security for up to 20
consecutive quarterly interest payment periods with respect
<PAGE>
to each deferral period (each an "Extension Period"), at the end of which the
Corporation shall pay all interest then accrued and unpaid, including any
Additional Interest, as provided below; provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Security, as then in effect, and no such Extension Period may end on a date
other than an Interest Payment Date; and provided, further, that during any such
Extension Period, the Corporation shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Corporation's capital stock, or (ii) make any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Corporation that rank pari passu in all
respects with, or junior in interest to, this Security (other than (A)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Corporation in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital
stock of the Corporation (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (B) as a result of an exchange or conversion
of any class or series of the Corporation's capital stock (or any capital stock
of a Subsidiary of the Corporation) for any class or series of the Corporation's
capital stock or of any class or series of the Corporation's indebtedness for
any class or series of the Corporation's capital stock, (C) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (D) any declaration of a dividend in connection
with any Rights Plan, or the issuance of rights, stock or other property under
any Rights Plan, or the redemption or repurchase of rights pursuant thereto, or
(E) any dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of such warrants, options
or other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock). Prior to the termination of any
such Extension Period, the Corporation may further defer the payment of
interest; provided that no Extension Period shall exceed 20 consecutive
quarterly interest payment periods, extend beyond the Stated Maturity of the
principal of this Security or end on a date other than an Interest Payment Date.
Upon the termination of any such Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due on any Interest
Payment Date, the Corporation may elect to begin a new Extension Period, subject
to the above conditions. No interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension shall bear
Additional Interest (to the extent that the payment of such interest hall be
legally enforceable) at the rate of 7.05% per annum, compounded quarterly and
calculated as set forth in the first paragraph of this Security, from the dates
on which amounts would otherwise have been due and payable until paid or made
available for payment. The Corporation shall give the Holder of this Security
and the Trustee notice of its election to begin any Extension Period at least
one Business Day prior to the next succeeding Interest Payment Date on which
interest on this Security would be payable but for such deferral or, so long as
such Securities are held by The First National Bank of Chicago, as Property
Trustee for the Issuer Trust, at least one Business Day prior to the earlier of
(i) the next succeeding date on which Distributions on the Capital Securities of
such Issuer Trust would be payable but for such deferral, and (ii) the date on
which the Property Trustee of such Issuer Trust is required to give
-2-
<PAGE>
notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Capital Securities of the record date or the
date such Distributions are payable.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Corporation maintained for
that purpose in New York, 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.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (i) agrees to and shall be bound by such
provisions, (ii) authorizes and directs the Trustee on his or her behalf to take
such actions as may be necessary or appropriate to effectuate the subordination
so provided, and (iii) appoints the Trustee his or her attorney-in-fact for any
and all such purposes. Each Holder hereof, by his or her acceptance hereof,
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-3-
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
THE BANK OF NEW YORK COMPANY, INC.
By: /s/ Robert E. Keilman
---------------------------
Name: Robert E. Keilman
Title: Comptroller
Attest:
/s/ Ellen I. Banney
- ----------------------
Name: Ellen I. Banney
Title: Notary Public
-4-
<PAGE>
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Dated: March 24, 1998
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Melissa G. Weisman
--------------------------
Name: Melissa G. Weisman
Title: Vice President
-5-
<PAGE>
[Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under the Junior Subordinated Indenture, dated as of December 25,
1996 (hereinafter called the "Indenture"), between the Corporation and THE FIRST
NATIONAL BANK OF CHICAGO, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Corporation, the Trustee, the holders of Senior Indebtedness and the Holders
of the Securities, and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Security is one of the series designated
on the face hereof limited in aggregate principal amount to $309,278,350.
All terms used in this Security that are defined in the Indenture or in
the Amended and Restated Trust Agreement, dated as of March 24, 1998 (as
modified, amended or supplemented from time to time, the "Trust Agreement"),
relating to the Issuer Trust, among the Corporation, as Depositor and the
Trustees named therein, shall have the meanings assigned to them in the
Indenture or the Trust Agreement, as the case may be.
The Corporation may at any time, at its option, and subject to the
terms and conditions of Article XI of the Indenture, (i) on or after March 24,
2003, redeem this Security in whole at any time or in part from time to time,
and (ii) prior to March 24, 2003, and within 90 days following the occurrence
and continuation of a Tax Event or Capital Treatment Event, redeem this Security
in whole (but not in part), in each case at a Redemption Price equal to the
accrued and unpaid interest on this Security to the date fixed for redemption,
plus 100% of the principal amount hereof.
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Corporation with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Corporation and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Corporation and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Corporation with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in
-6-
<PAGE>
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of this series may declare the principal amount of all
the Securities of this series to be due and payable immediately, by a notice in
writing to the Corporation (and to the Trustee if given by Holders), provided
that, if, upon an Event of Default, the Trustee or such Holders fail to declare
the principal of all the Outstanding Securities of this series to be immediately
due and payable, the holders of at least 25% in aggregate Liquidation Amount of
the Capital Securities then Outstanding shall have the right to make such
declaration by a notice in writing to the Corporation and the Trustee; and upon
any such declaration the principal amount of and the accrued interest (including
any Additional Interest) on all the Securities of this series shall become
immediately due and payable; provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest (including any Additional Interest) on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Corporation maintained under Section 10.2 of the
Indenture for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation and the
Securities Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple of $25 in
excess thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue,
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<PAGE>
and neither the Corporation, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Corporation and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
-8-
Exhibit 4.3
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
THE BANK OF NEW YORK COMPANY, INC.,
as Depositor
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
and
AND THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
---------------------------
Dated as of March 24, 1998
---------------------------
BNY CAPITAL III
================================================================================
<PAGE>
BNY CAPITAL III
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
- --------------- ---------------
(ss.) 310 (a)(1)............................................. 8.7
(a)(2)............................................. 8.7
(a)(3)............................................. 8.9
(a)(4)............................................. 2.7(a)(ii)
(b)................................................ 8.8
(ss.) 311 (a)................................................ 8.13
(b)................................................ 8.13
(ss.) 312 (a)................................................ 5.8
(b)................................................ 5.8
(c)................................................ 5.8
(ss.) 313 (a)................................................ 8.15(a)
(a)(4)............................................. 8.15(b)
(b)................................................ 8.15(b)
(c)................................................ 10.8
(d)................................................ 8.15(c)
(ss.) 314 (a)................................................ 8.16
(b)................................................ Not Applicable
(c)(1)............................................. 8.17
(c)(2)............................................. 8.17
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 1.1, 8.17
(ss.) 315 (a)................................................ 8.1(a), 8.3(a)
(b)................................................ 8.2, 10.8
(c)................................................ 8.1(a)
(d)................................................ 8.1, 8.3
(e)................................................ Not Applicable
(ss.) 316 (a)................................................ Not Applicable
(a)(1)(A).......................................... Not Applicable
(a)(1)(B).......................................... Not Applicable
(a)(2)............................................. Not Applicable
(b)................................................ 5.15
(c)................................................ 6.7
<PAGE>
(ss.) 317 (a)(1).............................................. Not Applicable
(a)(2).............................................. Not Applicable
(b)................................................. 5.10
(ss.) 318 (a)................................................. 10.10
____________
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions.....................................................1
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name...........................................................10
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.......................................................10
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.......................................................10
SECTION 2.4. Issuance of the Preferred Securities...........................10
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.........................................11
SECTION 2.6. Continuation of Trust..........................................11
SECTION 2.7. Authorization to Enter into Certain Transactions...............11
SECTION 2.8. Assets of Trust................................................15
SECTION 2.9. Title to Trust Property........................................15
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account................................................15
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions..................................................15
SECTION 4.2. Redemption.....................................................16
SECTION 4.3. Subordination of Common Securities.............................18
SECTION 4.4. Payment Procedures.............................................19
SECTION 4.5. Tax Returns and Reports........................................19
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.............19
<PAGE>
SECTION 4.7. Payments under Indenture or Pursuant to Direct
Actions........................................................20
SECTION 4.8. Liability of the Holder of Common Securities...................20
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership..............................................20
SECTION 5.2. The Trust Securities Certificates..............................20
SECTION 5.3. Execution and Delivery of Trust Securities Certificates........21
SECTION 5.4. Book-Entry Preferred Securities................................21
SECTION 5.5. Registration of Transfer and Exchange of Preferred
Securities Certificates........................................22
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates...................................................24
SECTION 5.7. Persons Deemed Holders.........................................24
SECTION 5.8. Access to List of Holders' Names and Addresses.................25
SECTION 5.9. Maintenance of Office or Agency................................25
SECTION 5.10. Appointment of Paying Agents...................................25
SECTION 5.11. Ownership of Common Securities by Depositor....................25
SECTION 5.12. Notices to Clearing Agency.....................................26
SECTION 5.13. Rights of Holders; Waivers of Past Defaults....................26
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights...................................28
SECTION 6.2. Notice of Meetings.............................................29
SECTION 6.3. Meetings of Holders of the Preferred Securities................29
SECTION 6.4. Voting Rights..................................................30
SECTION 6.5. Proxies, etc...................................................30
SECTION 6.6. Holder Action by Written Consent...............................30
SECTION 6.7. Record Date for Voting and Other Purposes......................30
SECTION 6.8. Acts of Holders................................................30
SECTION 6.9. Inspection of Records..........................................31
<PAGE>
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee.......................................32
SECTION 7.2. Representations and Warranties of Depositor....................33
ARTICLE VIII.
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities............................33
SECTION 8.2. Certain Notices................................................36
SECTION 8.3. Certain Rights of Property Trustee.............................36
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.........38
SECTION 8.5. May Hold Securities............................................38
SECTION 8.6. Compensation; Indemnity; Fees..................................38
SECTION 8.7. Corporate Property Trustee Required; Eligibility of
Issuer Trustees................................................39
SECTION 8.8. Conflicting Interests..........................................40
SECTION 8.9. Co-Trustees and Separate Trustee...............................40
SECTION 8.10. Resignation and Removal; Appointment of Successor..............41
SECTION 8.11. Acceptance of Appointment by Successor.........................42
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.......................................................43
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Issuer Trust...................................................43
SECTION 8.14. Property Trustee May File Proofs of Claim......................44
SECTION 8.15. Reports by Property Trustee....................................44
SECTION 8.16. Reports to the Property Trustee................................45
SECTION 8.17. Evidence of Compliance with Conditions Precedent...............45
SECTION 8.18. Number of Issuer Trustees......................................45
SECTION 8.19. Delegation of Power............................................46
SECTION 8.20. Appointment of Administrative Trustees.........................46
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date...............................47
<PAGE>
SECTION 9.2. Early Termination..............................................47
SECTION 9.3. Termination....................................................47
SECTION 9.4. Liquidation....................................................47
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust...................................49
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders................................50
SECTION 10.2. Amendment......................................................50
SECTION 10.3. Separability...................................................51
SECTION 10.4. Governing Law..................................................51
SECTION 10.5. Payments Due on Non-Business Day...............................51
SECTION 10.6. Successors.....................................................52
SECTION 10.7. Headings.......................................................52
SECTION 10.8. Reports, Notices and Demands...................................52
SECTION 10.9. Agreement Not to Petition......................................53
SECTION 10.10.Trust Indenture Act; Conflict with Trust Indenture Act.........53
SECTION 10.11.Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture........................................53
SECTION 10.12.Counterparts...................................................54
Exhibit A Certificate of Trust
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities Certificate
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of March 24, 1998, among
(i) The Bank of New York Company, Inc., a New York corporation (including any
successors or assigns, the "Depositor"), (ii) The First National Bank of
Chicago, a national banking association, as property trustee (in such capacity,
the "Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) First Chicago Delaware Inc., a
Delaware corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee"), (iv) Robert E. Keilman, an individual, and John A. Park, III, an
individual, each of whose address is c/o The Bank of New York Company, Inc., 48
Wall Street, New York, New York 10286 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees being referred to collectively as the
"Issuer Trustees"), and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
have heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by entering into a Trust Agreement, dated as of
November 6, 1996 (the "Original Trust Agreement"), and by the execution and
filing by the Delaware Trustee with the Secretary of State of the State of
Delaware of the Certificate of Trust, filed on November 6, 1996 (effective
November 12, 1996), attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Issuer Trust to the Depositor, (ii) the issuance and sale of the Preferred
Securities by the Issuer Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Debentures, and (iv) the appointment of the Administrative
Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
<PAGE>
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(e) Unless the context otherwise requires, any reference to an
"Article", a "Section" or an "Exhibit" refers to an Article, a Section or an
Exhibit, as the case may be, of or to this Trust Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrative Trustee of the
Issuer Trust heretofore created and continued hereunder and not in such Person's
individual capacity, or any successor trustee appointed as herein provided.
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<PAGE>
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Capital Security, the rules and procedures of
the Clearing Agency for such Book-Entry Capital Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or
the Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by
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<PAGE>
the board of directors of the Depositor (or any such committee), comprised of
two or more members of the board of directors of the Depositor or officers of
the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or officers of the Depositor to which
authority to act on behalf of the Board of Directors has been delegated and to
be in full force and effect on the date of such certification, and delivered to
the Issuer Trustees.
"Book-Entry Preferred Securities Certificate" means a Preferred
Securities Certificate evidencing ownership of Book-Entry Preferred Securities.
"Book-Entry Preferred Security" means a Preferred Security, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.4.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Issuer
Trust, the Depositor and DTC, as the initial Clearing Agency, dated as of the
Closing Date, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. DTC will be the initial
Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Time of Delivery, which date is also the date
of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Securities and Exchange Commission is not
existing and performing
-4-
<PAGE>
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in
Chicago, Illinois, and (ii) when used with respect to the Debenture Trustee, the
principal office of the Debenture Trustee located in Chicago, Illinois.
"Debenture Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of such Debentures
under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Debentures" means the Depositor's 7.05% Junior Subordinated Deferrable
Interest Debentures, Series D, issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (i) Preferred Securities Certificates issued as
Book-Entry Preferred Securities Certificates as provided in Section 5.2 or 5.4,
and (ii) Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., or any successor statute thereto,
in each case as amended from time to time.
-5-
<PAGE>
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Delaware Trustee of the trust heretofore created and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in this Trust Agreement
(other than those specified in clause (b) or (c) above) and
continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Issuer
Trustees and to the Depositor by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within
90 days thereof.
-6-
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities,
dated as of the Closing Date, between the Depositor, in its capacity as holder
of the Common Securities, and the Issuer Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and The First National Bank of Chicago, as guarantee
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Preferred Securities, as
amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
December 25, 1996, between the Depositor and the Debenture Trustee, as trustee,
as amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, or
any successor statute thereto, in each case as amended from time to time.
"Issuer Trust" means the Delaware business trust known as "BNY Capital
III" which was formed on November 12, 1996 under the Delaware Business Trust Act
pursuant to the Original Trust Agreement and the filing of the Certificate of
Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this
Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture, the proceeds of which will
-7-
<PAGE>
be used to pay the Redemption Price of such Trust Securities, (b) with respect
to a distribution of Debentures to Holders of Trust Securities in connection
with a dissolution or liquidation of the Issuer Trust, Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Debentures are distributed, and (c) with respect to any
distribution of Additional Amounts to Holders of Trust Securities, Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities in respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date of the dissolution, winding-up or
termination of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Preferred Securities or Common Securities,
as the case may be, representing more than 50% of the aggregate Liquidation
Amount of all then Outstanding Preferred Securities or Common Securities, as the
case may be.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the Issuer Trustees. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
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<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent; provided that, if such Trust Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu
of which other Trust Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Issuer Trustee or any Affiliate
of the Depositor or of any Issuer Trustee shall be disregarded and deemed not to
be Outstanding, except that (a) in determining whether any Issuer Trustee shall
be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Issuer Trustee
knows to be so owned shall be so disregarded, and (b) the foregoing clause (a)
shall not apply at any time when all of the Outstanding Preferred Securities are
owned by the Depositor, one or more of the Issuer Trustees and/or any such
Affiliate. Preferred Securities so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
"Owner" means each Person who is the beneficial owner of Book-Entry
Preferred Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
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"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be The Bank of New York.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with The Bank of New York in
its trust department for the benefit of the Holders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through a Paying Agent, shall make payments to the Holders in accordance with
Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security" means an undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Trust Securities, substantially in the form attached as Exhibit E.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Property Trustee of the trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Securities Act" means the Securities Act of 1933 and any successor
statute thereto, in each case as amended from time to time.
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"Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Successor Preferred Securities" of any particular Preferred Securities
Certificate means every Preferred Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer Trust
as that evidenced by, such particular Preferred Securities Certificate; and, for
the purposes of this definition, any Preferred Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Preferred Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Preferred Securities Certificate.
"Time of Delivery" has the meaning specified in the Underwriting
Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits, and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that if
the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account, and (c) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Pricing Agreement, dated as of March
12, 1998, among the Issuer Trust, the Depositor and the Underwriters named
therein, as the same may be amended from time to time.
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"Vice President," when used with respect to the Depositor, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The trust continued hereby shall be known as "BNY Capital III", as such
name may be modified from time to time by the Administrative Trustees following
written notice to the Holders of Trust Securities and the other Issuer Trustees,
in which name the Issuer Trustees may conduct the business of the Issuer Trust,
make and execute contracts and other instruments on behalf of the Issuer Trust
and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is 300
King Street, Wilmington, Delaware 19801, Attention: Michael J. Majchrzak, or
such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Holders, the Depositor, the Property Trustee
and the Administrative Trustees. The principal executive office of the Issuer
Trust is 48 Wall Street, New York, New York 10286, Attention: Secretary.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Issuer Trust as they arise or shall, upon request of any Issuer
Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by
such Issuer Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities.
On March 12, 1998, the Depositor, both on its own behalf and on behalf
of the Issuer Trust pursuant to the Original Trust Agreement, executed and
delivered the Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrative Trustee, on behalf of the
Issuer Trust, shall manually execute in accordance with Sections 5.2, 5.3 and
8.9(a) and the Property Trustee shall deliver to the underwriters, Preferred
Securities Certificates, registered in the names
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requested by the underwriters, evidencing an aggregate of 12,000,000 Preferred
Securities having an aggregate Liquidation Amount of $300,000,000, against
receipt of the aggregate purchase price of such Preferred Securities of
$300,000,000, by the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Issuer Trust, shall
execute in accordance with Sections 5.2 and 5.3 and the Property Trustee shall
deliver to the Depositor Common Securities Certificates, registered in the name
of the Depositor, evidencing an aggregate of 371,134 Common Securities having an
aggregate Liquidation Amount of $9,278,350, against receipt of the aggregate
purchase price of such Common Securities of $9,278,350, to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Issuer
Trust, shall subscribe for and purchase from the Depositor Debentures,
registered in the name of the Property Trustee on behalf of the Issuer Trust and
having an aggregate principal amount equal to $309,278,350, and, in satisfaction
of the purchase price for such Debentures, the Property Trustee, on behalf of
the Issuer Trust, shall deliver to the Depositor the sum of $309,278,350 (being
the sum of the amounts delivered to the Property Trustee pursuant to (i) the
second sentence of Section 2.4, and (ii) the first sentence of this Section
2.5).
SECTION 2.6. Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Debentures, and (b) to engage in only those activities necessary or
incidental thereto. The Depositor hereby reaffirms the appointment of the
Property Trustee and the Delaware Trustee and appoints the Administrative
Trustees as trustees of the Issuer Trust, to have all the rights, powers and
duties to the extent set forth herein, and the respective Issuer Trustees hereby
accept such appointment. The Property Trustee hereby declares that it will hold
the Trust Property upon and subject to the conditions set forth herein for the
benefit of the Issuer Trust and the Holders. The Administrative Trustees shall
have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Issuer Trust.
The Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Issuer
Trustees specified in this Trust Agreement, except as mandated by the Delaware
Business Trust Act. The Delaware Trustee shall be one of the trustees of the
Issuer Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act and for taking such actions as
are required to be taken by a Delaware trustee under the Delaware Business Trust
Act.
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SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer Trust
in accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section 2.7, and in accordance with the
following provisions (i) and (ii), the Issuer Trustees shall have the authority
to enter into all transactions and agreements determined by the Issuer Trustees
to be appropriate in exercising the authority, express or implied, otherwise
granted to the Issuer Trustees under this Trust Agreement, and to perform all
acts in furtherance thereof, including, without limitation, the following:
(i) Each Administrative Trustee shall have the power and
authority to act on behalf of the Issuer Trust with respect to the
following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to
execute, deliver and perform on behalf of the Issuer Trust, the
Expense Agreement and the Certificate Depository Agreement and
such other agreements as may be necessary or desirable in
connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act, and under applicable state
securities or blue sky laws and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in obtaining the listing of the Preferred
Securities upon such securities exchange or exchanges as shall be
determined by the Depositor, with the registration of the
Preferred Securities under the Exchange Act and with the
preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(E) assisting in the sending of notices (other than notices
of default) and other information regarding the Trust Securities
and the Debentures to the Holders in accordance with this Trust
Agreement;
(F) the consent to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with
this Trust Agreement (which consent shall not be unreasonably
withheld);
(G) execution of the Trust Securities on behalf of the
Issuer Trust in accordance with this Trust Agreement;
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(H) execution and delivery of closing certificates, if any,
pursuant to the Underwriting Agreement and application for a
taxpayer identification number for the Issuer Trust;
(I) unless otherwise determined by the Property Trustee or
Holders of at least a Majority in Liquidation Amount of the
Preferred Securities or as otherwise required by the Delaware
Business Trust Act or the Trust Indenture Act, to execute on
behalf of the Issuer Trust (either acting alone or together with
any or all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Trust Agreement; and
(J) the taking of any action incidental to the foregoing as
the Issuer Trustees may from time to time determine is necessary
or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power, duty and authority
to act on behalf of the Issuer Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures and the holding of such
amounts in the Payment Account;
(D) the distribution through any Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the Holders
in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Issuer Trust
and the preparation,
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execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph
(b), (c), (d) or (e) of the definition of such term if such Event
of Default is by or with respect to the Property Trustee) the
taking of any action incidental to the foregoing as the Property
Trustee may from time to time determine is necessary or advisable
to give effect to the terms of this Trust Agreement and protect
and conserve the Trust Property for the benefit of the Holders
(without consideration of the effect of any such action on any
particular Holder).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust
(or the Issuer Trustees acting on behalf of the Issuer Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Issuer Trustees (acting on
behalf of the Issuer Trust) shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would reasonably be expected to
cause the Issuer Trust to become taxable as a corporation or classified as other
than a grantor trust for United States Federal income tax purposes, (iv) incur
any indebtedness for borrowed money or issue any other debt, or (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property. The Administrative Trustees shall defend all claims and demands
of all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Issuer Trust or the Holders in their capacity as
Holders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the
Preferred Securities, including any amendments thereto and the taking
of any action necessary or desirable to sell the Preferred Securities
in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the States or other jurisdictions, if
any, in which to take appropriate action to qualify or register for
sale all or part of the Preferred
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Securities and the determination of any and all such acts, other than
actions that must be taken by or on behalf of the Issuer Trust, and the
advice to the Issuer Trust of actions they must take on behalf of the
Issuer Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Issuer Trust or on behalf of
the Issuer Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States in
connection with the sale of the Preferred Securities;
(iii) the preparation for filing by the Issuer Trust and execution
on behalf of the Issuer Trust of an application to the New York Stock
Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act,
including any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Issuer
Trustees are authorized and directed to conduct the affairs of the Issuer Trust
and to operate the Issuer Trust so that the Issuer Trust will not be deemed to
be an "investment company" required to be registered under the Investment
Company Act, and will not be taxable as a corporation or classified as other
than a grantor trust for United States Federal income tax purposes and so that
the Debentures will be treated as indebtedness of the Depositor for United
States Federal income tax purposes. In this connection, each Administrative
Trustee, the Property Trustee and the Holders of at least a Majority in
Liquidation Amount of the Common Securities each are authorized to take any
action, not inconsistent with applicable law, the Certificate of Trust or this
Trust Agreement, that any such Administrative Trustee, the Property Trustee or
Holders of Common Securities determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect in
any material respect the interests of the Holders of the Outstanding Preferred
Securities. In no event shall the Issuer Trustees be liable to the Issuer Trust
or the Holders for any failure to comply with this section that results from a
change in law or regulation or in the interpretation thereof.
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SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will be
made on the Trust
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Securities at the rate and on the dates that payments of interest (including any
Additional Interest, as defined in the Indenture) are made on the Debentures.
Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall
accumulate from March 24, 1998, and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Debentures pursuant to the Indenture, shall be payable
quarterly in arrears on March 1, June 1, September 1 and December 1 of
each year, commencing on June 1, 1998. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on
the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), with the same
force and effect as if made on the date on which such payment was
originally payable (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(ii) Distributions shall accumulate in respect of the Preferred
Securities at a rate of 7.05% per annum of the Liquidation Amount of
the Trust Securities. The amount of Distributions payable for any
period less than a full Distribution period shall be computed on the
basis of a 360-day year of twelve 30-day months and the actual number
of days elapsed in a partial month in a period. Distributions payable
for each full Distribution period will be computed by dividing the rate
per annum by four. The amount of Distributions payable for any period
shall include any Additional Amounts in respect of such period.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Issuer Trust has funds
then on hand and available in the Payment Account for the payment of
such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be at the close of business on the fifteenth
day (whether or not a Business Day) next preceding the relevant Distribution
Date.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Issuer Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
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(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to (and as defined
in the Indenture) together with a statement that it is an estimate and
that the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption Price
on the date that such Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Preferred
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of
the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Property Trustee shall
indicate the "CUSIP" numbers of the Trust Securities in notices of redemption
and related materials as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Trust Securities or as contained in any notice of
redemption and related materials.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Issuer Trust has funds
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then on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Preferred Securities, irrevocably deposit with the
Clearing Agency for such Book-Entry Preferred Securities, to the extent
available therefor, funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities. With respect to
Preferred Securities that are not Book-Entry Preferred Securities, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent or Paying Agents, to the extent available therefor, funds sufficient to
pay the applicable Redemption Price and will give the Paying Agent or Paying
Agents irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Securities
Register on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and such
Securities will cease to be Outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Issuer
Trust or by the Depositor pursuant to the Guarantee Agreement, Distributions on
such Trust Securities will continue to accumulate, as set forth in Section 4.1,
from the Redemption Date originally established by the Issuer Trust for such
Trust Securities to the date such Redemption Price is actually paid, in which
case the actual payment date will be the date fixed for redemption for purposes
of calculating the Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Preferred Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed shall be selected on a pro rata basis based
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upon their respective Liquidation Amounts not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, provided that so long as the
Preferred Securities are in book-entry-only form, such selection shall be made
in accordance with the customary procedures for the Clearing Agency for the
Preferred Securities. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
aggregate Liquidation Amount of Preferred Securities that has been or is to be
redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on, the
Redemption Price of, and the Liquidation Distribution in respect of the Trust
Securities, as applicable, shall be made, subject to Section 4.2(e), pro rata
among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of Default
resulting from a Debenture Event of Default specified in Section 5.1(1) or
5.1(2) of the Indenture shall have occurred and be continuing, no payment of any
Distribution (including any Additional Amounts) on, Redemption Price of, or
Liquidation Distribution in respect of any Common Security, and no other payment
on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including any Additional Amounts) on all Outstanding
Preferred Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Preferred Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption Price of,
the Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holders of the Common Securities shall
have no right to act with respect to any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or
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otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not on behalf of the Holder of all the
Common Securities, and only the Holders of the Preferred Securities will have
the right to direct the Property Trustee to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) or of the
Redemption Price, Liquidation Amount or any other amounts in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Securities are held by a Clearing Agency, such Distributions shall
be made to the Clearing Agency in immediately available funds. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of all the Common
Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States Federal, state and local tax
and information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Issuer Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Issuer Trust by
the United States or any other taxing authority.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities (or
any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such
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Holder (or Owner) has directly received pursuant to Section 5.8 of the Indenture
or Section 5.13 of this Trust Agreement.
SECTION 4.8. Liability of the Holder of Common Securities.
Any Holder of the Common Securities shall be liable for the debts and
obligations of the Issuer Trust in the manner and to the extent set forth with
respect to the Common Securityholder (as defined in the Expense Agreement) and
agrees that it shall be subject to all liabilities to which the Common
Securityholder may be subject, and shall make all payments that the Common
Securityholder is required to make, under the terms of the Expense Agreement.
ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the
Depositor referred to in Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are Outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
SECTION 5.2. The Securities Certificates.
(a) The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples thereof. The Securities
Certificates shall be executed on behalf of the Issuer Trust by manual signature
of at least one Administrative Trustee. Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Issuer Trust, shall
be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Securities Certificates or did not hold
such offices at the date of delivery of such Securities Certificates. A
transferee of a Trust Securities Certificate shall become a Holder, and shall be
entitled to the rights and subject to the obligations of a Holder hereunder,
upon due registration of such Trust Securities Certificate in such transferee's
name pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities Certificates
shall be issued in the form of one or more Book-Entry Preferred Securities
Certificates registered in the
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name of DTC, as Clearing Agency, or its nominee and deposited with DTC or a
custodian for DTC for credit by DTC to the respective accounts of the Owners
thereof (or such other accounts as they may direct).
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3. Execution and Delivery of Securities Certificates.
At the Time of Delivery, an Administrative Trustee shall cause
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust and delivered
to or upon the written order of the Depositor, executed by an authorized officer
thereof, without further corporate action by the Depositor, in authorized
denominations.
SECTION 5.4. Book-Entry Preferred Securities.
(a) Each Book-Entry Preferred Securities Certificate issued under this
Agreement shall be registered in the name of the Clearing Agency or a nominee
thereof and delivered to such Clearing Agency or a nominee thereof or custodian
therefor, and each such Book-Entry Preferred Securities Certificate shall
constitute a single Preferred Securities Certificate for all purposes of this
Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no
Book-Entry Preferred Securities Certificate may be exchanged in whole or in part
for Preferred Securities Certificates registered, and no transfer of a
Book-Entry Preferred Securities Certificate in whole or in part may be
registered, in the name of any Person other than the Clearing Agency for such
Book-Entry Preferred Securities Certificates or a nominee thereof unless (i) the
Clearing Agency advises the Property Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Book-Entry Preferred Securities Certificates, and the Property
Trustee is unable to locate a qualified successor, (ii) the Issuer Trust at its
option advises the Depositary in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (iii) a Debenture Event of
Default has occurred and is continuing. Upon the occurrence of any event
specified in clause (i), (ii) or (iii) above, the Administrative Trustees shall
notify the Clearing Agency and instruct the Clearing Agency to notify all Owners
of Book-Entry Preferred Securities, the Delaware Trustee and the Administrators
of the occurrence of such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of the Preferred Securities
requesting the same.
(c) If any Book-Entry Preferred Securities Certificate is to be
exchanged for other Preferred Securities Certificates or canceled in part, or if
any other Preferred Securities
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Certificate is to be exchanged in whole or in part for Book-Entry Preferred
Securities represented by a Book-Entry Preferred Securities Certificate, then
either (i) such Book-Entry Preferred Securities Certificate shall be so
surrendered for exchange or cancellation as provided in this Article Five or
(ii) the aggregate Liquidation Amount represented by such Book-Entry Preferred
Securities Certificate shall be reduced, subject to Section 5.2, or increased by
an amount equal to the Liquidation Amount represented by that portion of the
Book-Entry Preferred Securities Certificate to be so exchanged or canceled, or
equal to the Liquidation Amount represented by such other Preferred Securities
Certificates to be so exchanged for Book-Entry Preferred Securities represented
thereby, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Property Trustee, in
accordance with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment to its records.
Upon surrender to the Administrative Trustees or the Securities Registrar of the
Book-Entry Preferred Securities Certificate or Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. None of
the Securities Registrar, the Issuer Trustees or the Administrative Trustees
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Preferred Securities Certificates, the Issuer
Trustees and Administrative Trustees shall recognize the Holders of the
Definitive Preferred Securities Certificates as Holders. The Definitive
Preferred Securities Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
(d) Every Preferred Securities Certificate executed and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Book-Entry
Preferred Securities Certificate or any portion thereof, whether pursuant to
this Article V or Article IV or otherwise, shall be executed and delivered in
the form of, and shall be, a Book-Entry Preferred Securities Certificate, unless
such Preferred Securities Certificate is registered in the name of a Person
other than the Clearing Agency for such Book-Entry Preferred Securities
Certificate or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a
Book-Entry Preferred Securities Certificate, shall be the Holder of such
Book-Entry Preferred Securities Certificate for all purposes under this
Agreement and the Book-Entry Preferred Securities Certificate, and Owners with
respect to a Book-Entry Preferred Securities Certificate shall hold such
interests pursuant to the Applicable Procedures. The Securities Registrar, the
Administrative Trustees and the Issuer Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Trust Agreement relating to the
Book-Entry Preferred Securities Certificates (including the payment of the
Liquidation Amount of and
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Distributions on the Book-Entry Preferred Securities represented thereby and the
giving of instructions or directions by Owners of Book-Entry Preferred
Securities represented thereby) as the sole Holder of the Book-Entry Preferred
Securities represented thereby and shall have no obligations to the Owners
thereof. None of the Property Trustee, the Administrative Trustees nor the
Securities Registrar shall have any liability in respect of any transfers
effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Preferred Securities shall
be exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants, provided that,
solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, so long as Definitive Preferred Security Certificates have not
been issued, the Issuer Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument (including a proxy) delivered to
the Issuer Trustees by the Clearing Agency setting forth the Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part. Pursuant to the Certificate Depository Agreement, unless and until
Definitive Preferred Securities Certificates are issued pursuant to Section
5.4(b), the initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants, and none of the Depositor, the
Administrative Trustees or the Issuer Trustees shall have any responsibility or
obligation with respect thereto.
SECTION 5.5. Registration of Transfer and Exchange of Preferred
Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 5.9, a register or registers (the
"Securities Register") in which the registrar and transfer agent with respect to
the Trust Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
5.11 in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein provided.
The Property Trustee is hereby appointed Securities Registrar for the purpose of
registering Preferred Securities Certificates and (subject to Section 5.11)
Common Securities Certificates and transfers and exchanges thereof as provided
herein.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrative Trustees or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall deliver, in the name of the
designated transferee or transferees, one or more new
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Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount as may be required by this Trust Agreement, dated
the date of execution by such Administrative Trustee or Trustees.
The Securities Registrar shall not be required, (i) to issue, register
the transfer of or exchange any Preferred Security during a period beginning at
the opening of business 15 days before the day of selection for redemption of
such Preferred Securities pursuant to Article IV and ending at the close of
business on the day of mailing of the notice of redemption, or (ii) to register
the transfer of or exchange any Preferred Security so selected for redemption in
whole or in part, except, in the case of any such Preferred Security to be
redeemed in part, any portion thereof not to be redeemed.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to an Administrative
Trustee and the Securities Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Preferred Securities
Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Property Trustee in accordance with
such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Issuer Trust may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Preferred Securities
Certificates.
(b) Notwithstanding any other provision of this Agreement, transfers
and exchanges of Preferred Securities Certificates and beneficial interests in a
Book-Entry Preferred Securities Certificate of the kinds specified in this
Section 5.5(b) shall be made only in accordance with this Section 5.5(b).
(i) Non-Book-Entry Preferred Securities Certificate to Book-Entry
Preferred Securities Certificate. If the Holder of a Preferred
Securities Certificate (other than a Book-Entry Preferred Securities
Certificate) wishes at any time to transfer all or any portion of such
Preferred Securities Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in a Book-Entry
Preferred Securities Certificate, such transfer may be effected only in
accordance with the provisions of this Clause (b)(i) and subject to the
Applicable Procedures. Upon receipt by the Securities Registrar of (A)
such Preferred Securities Certificate as provided in Section 5.5(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Book-Entry Preferred Securities Certificate
of a specified number of Preferred Securities not greater than the
number of Preferred Securities represented by such Preferred Securities
Certificate be credited
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to a specified Clearing Agency Participant's account, then the
Securities Registrar shall cancel such Preferred Securities Certificate
(and issue a new Preferred Securities Certificate in respect of any
untransferred portion thereof) as provided in Section 5.5(a) and
increase the aggregate Liquidation Amount of the Book-Entry Preferred
Securities Certificate by the Liquidation Amount represented by such
Preferred Securities so transferred as provided in Section 5.4(c).
(ii) Non-Book-Entry Preferred Securities Certificate to
Non-Book-Entry Preferred Securities Certificate. A Preferred Securities
Certificate that is not a Book-Entry Preferred Securities Certificate
may be transferred, in whole or in part, to a Person who takes delivery
in the form of another Preferred Securities Certificate that is not a
Book-Entry Preferred Securities Certificate as provided in Section
5.5(a).
(iii) Exchanges between Book-Entry Preferred Securities
Certificate and Non-Book-Entry Preferred Securities Certificate. A
beneficial interest in a Book- Entry Preferred Securities Certificate
may be exchanged for a Preferred Securities Certificate that is not a
Book-Entry Preferred Securities Certificate as provided in Section 5.4.
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities
Certificates.
If (a) any mutilated Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Securities
Certificate, and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that such
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Issuer Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Securities Certificate, a new Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Securities Certificate under this Section 5.6, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Securities Certificate issued pursuant to
this Section 5.6 shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Securities Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Securities Certificate shall be
found at any time.
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SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Securities Certificate shall be registered in the
Securities Register as the owner of such Securities Certificate for the purpose
of receiving Distributions and for all other purposes whatsoever, and none of
the Issuer Trustees and the Securities Registrar shall be bound by any notice to
the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee, the Delaware Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 5.9. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Issuer Trustees in respect of the Securities Certificates may be
served. The Administrative Trustees initially designate The First National Bank
of Chicago, One First National Plaza, Suite 0126, Chicago, Illinois 60670,
Attention: Corporate Trust Administration, as its office and agency for such
purposes. The Property Trustee shall give prompt written notice to the
Depositor, the Administrative Trustees and to the Holders of any change in the
location of the Securities Register or any such office or agency.
SECTION 5.10. Appointment of Paying Agents.
The Paying Agent or Agents shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent in their sole
discretion. The Paying Agent shall initially be The Bank of New York. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrative Trustees and the Property Trustee. If
The Bank of New York shall no longer be the Paying Agent or a successor Paying
Agent shall resign or its authority to act be revoked, the Administrative
Trustees shall appoint a successor (which shall be a bank or trust company) that
is reasonably acceptable to the Depositor to act as Paying Agent. Such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustees shall execute and deliver to the Issuer
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Trustees an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Issuer Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Holders in trust for the benefit of the Holders entitled
thereto until such sums shall be paid to such Holders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply
to the Bank also in its role as Paying Agent, for so long as The Bank of New
York shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire, and thereafter
shall retain, beneficial and record ownership of the Common Securities. Neither
the Depositor nor any successor Holder of the Common Securities may transfer
less than all the Common Securities, and the Depositor or any such successor
Holder may transfer the Common Securities only (i) in connection with a
consolidation or merger of the Depositor into another corporation, or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section 8.1 of the
Indenture, or (ii) to the Depositor or an Affiliate of the Depositor in
compliance with applicable law (including the Securities Act and applicable
state securities and blue sky laws), and in either case only upon an effective
assignment and delegation by the Holder of all the Common Securities to its
transferee of all of its rights and obligations under the Expense Agreement. To
the fullest extent permitted by law, any attempted transfer of the Common
Securities other than as set forth in the next preceding sentence shall be void.
The Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating substantially "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE
DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT
OF THE EXPENSE AGREEMENT REFERRED TO THEREIN."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Book-Entry Preferred Securities Certificate, the Issuer
Trustees shall give all such notices and communications specified herein to be
given to the Clearing Agency, and shall have no obligations to the Owners.
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SECTION 5.13. Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Issuer Trust except as described below. The
Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust Securities shall have
no preemptive or similar rights and when issued and delivered to Holders against
payment of the purchase price therefor will be fully paid and nonassessable by
the Issuer Trust. Subject to the provisions of Section 4.8, the Holders of the
Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Debentures fail to
declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have the right to make such declaration by a
notice in writing to the Property Trustee, the Depositor and the Debenture
Trustee.
At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, by written notice to the Property Trustee, the Depositor
and the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee
a sum sufficient to pay
(A) all overdue installments of interest on all of the
Debentures,
(B) any accrued Additional Interest on all of the
Debentures,
(C) the principal of (and premium, if any, on) any
Debentures that have become due otherwise than by such declaration
of acceleration and
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interest and Additional Interest thereon at the rate borne by the
Debentures, and
(D) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other
than the non-payment of the principal of the Debentures that has become
due solely by such acceleration, have been cured or waived as provided
in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default under the Indenture,
except a default or Event of Default in the payment of principal or interest
(unless such default or Event of Default has been cured and a sum sufficient to
pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default or
Event of Default in respect of a covenant or provision that under the Indenture
cannot be modified or amended without the consent of the holder of each
outstanding Debenture. No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of any part of
the Preferred Securities a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day that is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice that has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.13(b).
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(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of any
amounts payable in respect of Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Preferred Securities of such
Holder (a "Direct Action"). Except as set forth in Section 5.13(b) and this
Section 5.13(c), the Holders of Preferred Securities shall have no right to
exercise directly any right or remedy available to the holders of, or in respect
of, the Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 5.13, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Issuer Trust, the Property Trustee shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or execute any trust or power conferred on the Property
Trustee with respect to the Debentures, (ii) waive any past default that may be
waived under Section 5.13 of the Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable, or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required,
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without, in each case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Preferred Securities, provided, however,
that where a consent under the Indenture would require the consent of each
Holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Preferred
Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities,
except by a subsequent vote of the Holders of the Preferred Securities. The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Issuer Trustees shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action shall not cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Issuer Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Issuer Trust, other than pursuant to the terms of this Trust Agreement, then
the Holders of Outstanding Preferred Securities as a class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States Federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders of the Preferred Securities,
stating the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.8 to each Holder of Preferred
Securities, at such Holder's registered address, at least 15 days and not more
than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
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SECTION 6.3. Meetings of Holders of the Preferred Securities.
No annual meeting of Holders is required to be held. The Administrative
Trustees, however, shall call a meeting of the Holders of the Preferred
Securities to vote on any matter upon the written request of the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred
Securities and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of the Holders of the Preferred
Securities to vote on any matters as to which such Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Preferred Securities representing at
least a majority of the aggregate Liquidation Amount of the Preferred Securities
held by the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of the Preferred Securities, unless this
Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote
by proxy, provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Administrative Trustees, or with such other
officer or agent of the Issuer Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken. Pursuant
to a resolution of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Holders of record shall be entitled to vote. When Trust Securities are held
jointly by several persons, any one of them may vote at any meeting in person or
by proxy in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall
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rest on the challenger. No proxy shall be valid more than three years after its
date of execution.
SECTION 6.6. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken
without a meeting if Holders holding at least a Majority in Liquidation Amount
of all Preferred Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any other provision of this
Trust Agreement) shall consent to the action in writing. Any action that may be
taken by the Holder of all the Common Securities may be taken if such Holders
shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Holders or the payment of a
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as otherwise expressly provided herein,
such action shall become effective when such instrument or instruments are
delivered to an Administrative Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.1) conclusive in favor of the Issuer Trustees, if made in the manner provided
in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than such signer's
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individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that any Issuer Trustee receiving
the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder of every Trust Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Issuer
Trustees, the Depositor or the Issuer Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders or the Issuer Trustees
with respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such Holder or
Issuer Trustee under this Article VI, then the determination of such matter by
the Property Trustee shall be conclusive with respect to such matter.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Issuer Trust shall be open to inspection by Holders
during normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
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ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws of the United
States;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them 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;
(f) the execution, delivery and performance of this Trust Agreement has
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and does not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee, (ii) violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware
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Trustee is a party or by which it is bound, or (iii) violate any law,
governmental rule or regulation of the United States or the State of Delaware,
as the case may be, governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing law of
the United States or the State of Delaware governing the banking, trust or
general powers of the Property Trustee or the Delaware Trustee, as the case may
be; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Issuer Trust or would question the right, power and authority of the Property
Trustee or the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Issuer Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Securities Certificates issued at the Time of Delivery on
behalf of the Issuer Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Issuer Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this Trust
Agreement and the Holders will be, as of each such date, entitled to the
benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under
the laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by either Issuer Trustee
of this Trust Agreement.
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ARTICLE VIII.
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require any of the Issuer Trustees to expend or risk its
or their own funds or otherwise incur any financial liability in the performance
of any of its or their duties hereunder, or in the exercise of any of its or
their rights or powers, if it or they shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it or them. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Issuer
Trustees shall be subject to the provisions of this Section 8.1. Nothing in this
Trust Agreement shall be construed to release an Administrative Trustee from
liability for such Administrative Trustee's own negligent action, such
Administrative Trustee's gross negligent failure to act, or such Administrative
Trustee's own willful misconduct. To the extent that, at law or in equity, an
Issuer Trustee has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee shall not be liable to the Issuer Trust or to any
Holder for such Issuer Trustee's good faith reliance on the provisions of this
Trust Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Issuer Trustees otherwise existing at
law or in equity, are agreed by the Depositor and the Holders to replace such
other duties and liabilities of the Issuer Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Issuer Trustees are not
personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Issuer Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to
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Section 10.10), and no implied covenants shall be read into this Trust Agreement
against the Property Trustee. If an Event of Default has occurred (that has not
been cured or waived pursuant to Section 5.13, the Property Trustee shall
exercise such of the rights and powers vested in it by this Trust Agreement),
and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee or the Delaware Trustee from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this Trust
Agreement (including pursuant to Section 10.10), and the Property
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Property Trustee and conforming to the requirements of this
Trust Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements
of this Trust Agreement.
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;
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(iv) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the
Payment Account shall be to deal with such Property in a similar manner
as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of any other
Issuer Trustee or the Depositor; and
(vii) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Property Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Trust Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) The Administrative Trustees shall not be responsible for monitoring
the compliance by the other Issuer Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall either Administrative
Trustee be liable for the default or misconduct of any other Administrative
Trustee, the other Issuer Trustees or the Depositor.
(f) If an Event of Default has occurred and is continuing, the Property
Trustee shall enforce this Trust Agreement for the benefit of the Holders.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Holder, the Administrative Trustees, and the Depositor unless
such Event of Default shall have been cured or waived.
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Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such exercise
to the Holders and the Administrative Trustees, unless such exercise shall have
been revoked.
The Property Trustee shall not be deemed to have knowledge of any Event
of Default unless the Property Trustee shall have received written notice or a
Responsible Officer of the Property Trustee charged with the administration of
this Trust Agreement shall have obtained actual knowledge of such Event of
Default.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein, or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Holders of the Preferred Securities are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a notice to the
Depositor requesting the Depositor's opinion as to the course of action to be
taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that, if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Holders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or wilful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
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(d) any direction or act of an Administrative Trustee contemplated by
this Trust Agreement shall be sufficiently evidenced by a certificate executed
by such Administrative Trustee and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction; provided that, nothing
contained in this Section 8.3(g) shall be taken to relieve the Property Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided that the Property Trustee shall be responsible for
its own negligence, bad faith or wilful misconduct with respect to selection of
any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same
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proportion in Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in respect
of such remedy, right or action), (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received, and
(iii) shall be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to any Issuer Trustee shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities Certificates shall
be taken as the statements of the Issuer Trust, and the Issuer Trustees do not
assume any responsibility for their correctness. The Issuer Trustees shall not
be accountable for the use or application by the Depositor of the proceeds of
the Debentures.
SECTION 8.5. May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the
Issuer Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, and except as
provided in the definition of the term "Outstanding" in Article I, may otherwise
deal with the Issuer Trust with the same rights it would have if it were not an
Issuer Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to each Issuer Trustee and Paying Agent from time to time
such reasonable compensation for all services rendered by them hereunder as may
be agreed by the Depositor and such Issuer Trustee or Paying Agent, as the case
may be, from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
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(b) except as otherwise expressly provided herein, to reimburse each
Issuer Trustee and Paying Agent upon request for all reasonable expenses,
disbursements and advances incurred or made by each Issuer Trustee and Paying
Agent in accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of their agents and
counsel), except any such expense, disbursement or advance as may be
attributable to their negligence, bad faith or wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) each Paying Agent, (iii) any
Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any employee or
agent of the Issuer Trust (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Issuer Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Issuer Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this Trust
Agreement, except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified Person by
reason of negligence, bad faith or wilful misconduct with respect to such acts
or omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement and the removal or resignation of any Issuer Trustee.
No Issuer Trustee or Paying Agent may claim any Lien on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Issuer Trustee and any Paying Agent may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall
have no rights by virtue of this Trust Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Issuer Trust, shall not be
deemed wrongful or improper. Neither the Depositor, any Paying Agent nor any
Issuer Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a character that,
if presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor, any Issuer Trustee or any Paying Agent shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity. Any Issuer
Trustee or Paying Agent may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may
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act as depository for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such, and that has at the time of such appointment a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
8.7 and to the extent permitted by the Trust Indenture Act, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Property Trustee with respect to the Trust Securities shall cease
to be eligible in accordance with the provisions of this Section 8.7, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article. At the time of appointment, the Property Trustee must have
securities rated in one of the three highest rating categories by a nationally
recognized statistical rating organization.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware, or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law and that shall
act through one or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
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(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section 8.9. Any co-trustee
or separate trustee appointed pursuant to this Section 8.9 shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States, or (ii) a legal entity with its principal place of business in the
United States that shall act through one or more persons authorized to bind such
entity. If an Event of Default under the Indenture shall have occurred and be
continuing, the Property Trustee alone shall have the power to make such
appointment.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more
Administrative Trustees, and the Trust Securities shall be delivered by the
Property Trustee, and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Property Trustee specified
hereunder shall be exercised solely by the Property Trustee and not by such
co-trustee or separate trustee.
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(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section 8.9, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigning or removed may be appointed in the manner provided in this Section
8.9.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Issuer Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 60 days after
the giving of such notice of resignation, the
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Relevant Trustee may petition, at the expense of the Depositor, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by Act of the Holder
of all the Common Securities. If a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee or the Delaware Trustee, or
both of them, may be removed at such time by Act of the Holders of a Majority in
Liquidation Amount of the Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and, in the case of the Property Trustee, on
behalf of the Issuer Trust). An Administrative Trustee may be removed by the
Holders of Common Securities at any time.
If any Issuer Trustee shall resign, be removed or become incapable of
acting as Issuer Trustee, or if a vacancy shall occur in the office of any
Issuer Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Holder of all the Common Securities, by Act
delivered to the retiring Issuer Trustee, shall promptly appoint a successor
Issuer Trustee or Issuer Trustees, and such successor Issuer Trustee shall
comply with the applicable requirements of Section 8.11. If the Property Trustee
or the Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Property Trustee or the Delaware Trustee, as the case
may be, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Holders of Preferred Securities, by Act of the Holders of a
Majority in Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees, and such successor Issuer Trustee shall comply
with the applicable requirements of Section 8.11. If an Administrative Trustee
shall resign, be removed or become incapable of acting as Administrative
Trustee, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Holder of all the Common Securities by Act delivered to the
Administrative Trustee shall promptly appoint a successor Administrative Trustee
or Administrative Trustees and such successor Administrative Trustee or Trustees
shall comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Holder of all the Common
Securities or the Holders of a Majority in Liquidation Amount of the Preferred
Securities, as the case may be, and accepted appointment in the manner required
by Section 8.11, any Holder who has been a Holder of Trust Securities for at
least six months, on behalf of such Holder and all others similarly situated, or
any other Issuer Trustee, may petition any court of competent jurisdiction for
the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall
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include the name of the successor Relevant Trustee and the address of its
Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrative Trustee or a Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of the remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in either case being a Person who satisfies the eligibility
requirement for Administrative Trustees or Delaware Trustee, as the case may be,
set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Issuer Trustee such
successor Issuer Trustee so appointed shall execute, acknowledge and deliver to
the Issuer Trust and to the retiring Issuer Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Issuer
Trustee shall become effective and such successor Issuer Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Issuer Trustee; but, on the request of
the Depositor or the successor Issuer Trustee, such retiring Issuer Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Issuer Trustee all the rights, powers and trusts
of the retiring Issuer Trustee and if the Property Trustee is the resigning
Issuer Trustee shall duly assign, transfer and deliver to the successor Issuer
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Issuer Trust, and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring
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Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust Securities and the
Issuer Trust.
Upon request of any Issuer Trustee or any such successor Relevant
Trustee, the retiring Relevant Trustee or the Issuer Trust, as the case may be,
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person, succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Issuer Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Preferred
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
SECTION 8.14. Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
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(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 8.15. Reports by Property Trustee.
(a) Not later than 60 days after May 15 of each year commencing with
May 15, 1998, the Property Trustee shall transmit to all Holders in accordance
with Section 10.8, and to the Depositor, a brief report, dated as of May 15 of
such year, with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all
of its obligations under this Trust Agreement during the twelve-month
period (or, in the case of the initial report, the period since the
Closing Date) ending with such December 31 or, if the Property Trustee
has not complied in any material respect with such obligations, a
description of such noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken
by the Property Trustee
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in the performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust
Securities.
(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each national stock exchange,
the Nasdaq National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
SECTION 8.16. Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees on behalf of the
Issuer Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act. The Depositor and the Administrative Trustees on behalf of the
Issuer Trust shall annually file with the Property Trustee a certificate
specifying whether such Person is in compliance with all of the terms and
covenants applicable to such Person hereunder.
SECTION 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Issuer Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be four, provided that the
Property Trustee and the Delaware Trustee may be the same Person.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
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(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to annul, dissolve or terminate the Issuer Trust.
SECTION 8.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
such Administrative Trustee's power for the purpose of executing any documents
contemplated in Section 2.7(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Issuer Trust or the
names of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement.
SECTION 8.20. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be John A. Park, III,
an individual, and Robert E. Keilman, an individual, and their successors shall
be appointed by the Holder of a Majority in Liquidation Amount of the Common
Securities and resign or be may be removed by the Holders of a Majority in
Liquidation Amount of the Common Securities at any time. Upon any resignation or
removal, the Depositor shall appoint a successor Administrative Trustee. If at
any time there is no Administrative Trustee, the Property Trustee or any Holder
who has been a Holder of Trust Securities for at least six months may petition
any court of competent jurisdiction for the appointment of one or more
Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with this Section 8.20, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrative Trustee who is a natural person dies or
becomes, in the opinion of the Holder of a Majority in Liquidation Amount the
Common Securities, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled
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by the unanimous act of the remaining Administrative Trustees, if there were at
least two of them prior to such vacancy, and by the Depositor, if there were not
two such Administrative Trustees immediately prior to such vacancy (with the
successor being a Person who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.7).
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Issuer Trust shall automatically
dissolve, and its affairs be wound up, on March 24, 2053 (the "Expiration
Date"), following the distribution of the Trust Property in accordance with
Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Holder of
all the Common Securities at any time to terminate the Issuer Trust and to
distribute the Debentures to Holders in exchange for the Preferred Securities
(which direction is optional and wholly within the discretion of the Holder of
all the Common Securities);
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees
and the Issuer Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property Trustee
to Holders of all amounts required to be distributed hereunder upon the
liquidation of the Issuer Trust pursuant to Section 9.4, or upon the redemption
of all of the Trust Securities pursuant to Section 4.2; (b) the
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payment of any expenses owed by the Issuer Trust; and (c) the discharge of all
administrative duties of the Administrative Trustees, including the performance
of any tax reporting obligations with respect to the Issuer Trust or the
Holders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Issuer Trustees as expeditiously as the Issuer Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder a
Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage prepaid
mailed not less than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All such notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Securities Certificates for Debentures, or
if Section 9.4(d) applies receive a Liquidation Distribution, as the
Property Trustee or Administrative Trustees shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Issuer Trust and distribution of the Debentures to
Holders, the Property Trustee, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish a record date for
such distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Securities Certificates, upon surrender of such Securities
Certificates to the exchange agent for exchange, (iii) the Depositor shall use
its best efforts to have the Debentures listed on the New York Stock Exchange or
on such other exchange, interdealer quotation system or self-regulatory
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organization on which the Preferred Securities are then listed, (iv) any
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such Securities
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will be
made to Holders of Securities Certificates with respect to such Debentures) and
(v) all rights of Holders holding Trust Securities will cease, except the right
of such Holders to receive Debentures upon surrender of Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, or if an Early
Termination Event specified in clause (c) of Section 9.2 occurs, the Trust
Property shall be liquidated, and the Issuer Trust shall be dissolved, wound-up
or terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or other
termination of the Issuer Trust, Holders will be entitled to receive out of the
assets of the Issuer Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Issuer Trust as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such dissolution,
winding up or termination, the Liquidation Distribution can be paid only in part
because the Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust Securities shall
be paid on a pro rata basis (based upon Liquidation Amounts). The Holder of all
the Common Securities will be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a Debenture
Event of Default specified in Section 5.1(1) or 5.1(2) of the Indenture has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities as provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Article IX. At the request of the Holders of the Common Securities, with
the consent of the Administrative Trustees, but without the consent of the
Holders of the Outstanding Preferred Securities, the Property Trustee or the
Delaware Trustee, the Issuer Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
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assets substantially as an entirety to a trust organized as such under the laws
of any State; provided that (i) such successor entity either (A) expressly
assumes all of the obligations of the Issuer Trust with respect to the Preferred
Securities or (B) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities have the same priority as the
Preferred Securities with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) a trustee of such successor entity
possessing the same powers and duties as the Property Trustee is appointed to
hold the Debentures, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization that then assigns a rating
to the Preferred Securities, (iv) the Successor Securities are listed, or any
Successor Securities will be listed upon notice of issuance, on any national
securities exchange or interdealer quotation system on which the Preferred
Securities are then listed, if any, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel to the effect that (A) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, and (B)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Issuer Trust nor such successor entity will be
required to register as an "investment company" under the Investment Company
Act, and (viii) the Depositor or its permitted transferee owns all of the Common
Securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee Agreement. Notwithstanding the foregoing, the Issuer Trust
shall not, except with the consent of holders of all of the Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Issuer Trust or the
successor entity to be taxable as a corporation or classified as other than a
grantor trust for United States Federal income tax purposes.
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ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of any
person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Holder for such person, to claim
an accounting, take any action or bring any proceeding in any court for a
partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Issuer
Trustees and the Holder of all the Common Securities, without the consent of any
Holder of the Preferred Securities, (i) to cure any ambiguity, correct or
supplement any provision herein that may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement; or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Issuer Trust will not be taxable as a corporation
or will be classified as a grantor trust for United States Federal income tax
purposes at all times that any Trust Securities are Outstanding or to ensure
that the Issuer Trust will not be required to register as an "investment
company" under the Investment Company Act provided, however, that in the case of
either clauses (i) or (ii) such action shall not adversely affect in any
material respect the interests of any Holder.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Issuer Trustees and the Holder of all the
Common Securities and with (i) the consent of Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, and (ii) receipt by the Issuer
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Issuer Trustees in accordance with such
amendment will not cause the Issuer Trust to be taxable as a corporation or
classified as other than a grantor trust for United States Federal income tax
purposes or affect the Issuer Trust's exemption from status as an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change
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the amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date, or (ii) restrict the right of a
Holder to institute suit for the enforcement of any such payment on or after
such date; and notwithstanding any other provision herein, without the unanimous
consent of the Holders (such consent being obtained in accordance with Section
6.3 or 6.6 hereof), this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement that would cause the Issuer Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment Company
Act or to be taxable as a corporation or to be classified as other than a
grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative Trustees, this Trust
Agreement may not be amended in a manner that imposes any additional obligation
on the Depositor or the Administrative Trustees.
(f) If any amendment to this Trust Agreement is made, the
Administrative Trustees or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement that affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
SECTION 10.3. Separability.
If any provision in this Trust Agreement or in the Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR AND THE ISSUER TRUSTEES WITH RESPECT TO
THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND
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GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS
CONFLICTS OF LAWS PROVISIONS. THE PROVISIONS OF SECTION 3540 OF TITLE 12 OF
THE DELAWARE CODE SHALL NOT APPLY TO THIS TRUST.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no Distributions
shall accumulate on such unpaid amount for the period after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Issuer Trust and any Issuer
Trustee, including any successor by operation of law. Except in connection with
a consolidation, merger or sale involving the Depositor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Preferred Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of all the
Common Securities or the Depositor, to The Bank of New York Company Inc., 48
Wall Street, New York, New York 10286, Attention: Secretary, facsimile no.:
(212) 635-1698, or to such other address as may be specified in a written notice
by the Holder of all the Common Securities or the Depositor, as the case may be,
to the Property Trustee. Such notice, demand or other communication to or upon a
Holder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand
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delivery, mailing or transmission. Such notice, demand or other communication to
or upon the Depositor shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Issuer Trust or any Issuer Trustee shall be given in writing by deposit thereof,
first-class postage prepaid, in the U.S. mail, hand delivery or facsimile
transmission, addressed to such Person as follows: (a) with respect to the
Property Trustee to The First National Bank of Chicago, One First National
Plaza, Suite 0126, Chicago, Illinois 60670, Attention: Corporate Trust
Administration; (b) with respect to the Delaware Trustee, to First Chicago
Delaware Inc., 300 King Street, Wilmington, Delaware 19801, Attention: Michael
J. Majchrzak; (c) with respect to the Administrative Trustees, to them at the
address above for notices to the Depositor, marked "Attention: Administrative
Trustees of BNY Capital III"; and (d) with respect to the Issuer Trust, to its
principal office specified in Section 2.1, with a copy to the Property Trustee.
Such notice, demand or other communication to or upon the Issuer Trust, the
Property Trustee, the Delaware Trustee or the Administrative Trustees shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Issuer Trust, the Property Trustee, the Delaware Trustee or such
Administrative Trustee, as the case may be.
SECTION 10.9. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of
the Holders that, until at least one year and one day after the Issuer Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. If the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Issuer
Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustee or the Issuer Trust may assert.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
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(b) The Property Trustee shall be the only Issuer Trustee that is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duties shall control.
If any provision of this Trust Agreement modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Trust Agreement as so modified or
excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS
OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT
OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
SECTION 10.12. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement.
THE BANK OF NEW YORK COMPANY, INC.,
as Depositor
By: /s/ Robert E. Keilman
-------------------------------
Name: Robert E. Keilman
Title: Comptroller
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ John R. Prendiville
-------------------------------
Name: John R. Prendiville
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ John R. Prendiville
-------------------------------
Name: John R. Prendiville
Title: Vice President
By: /s/ Robert E. Keilman
-------------------------------
Name: Robert E. Keilman
as Administrative Trustee
By: /s/ John A. Park, III
-------------------------------
Name: John A. Park, III
as Administrative Trustee
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23rd day of March, 1998, before me personally came Robert E.
Keilman, to me known, who, being by me duly sworn, did depose and say that he is
Comptroller of The Bank of New York Company, Inc., one of the corporations
described in and which executed the foregoing instrument; that he signed his
name thereto by authority of the Board of Directors of said corporation.
/s/ Ellen I. Banney
-------------------------------------
Ellen I. Banney
Notary Public, State of New York
No. 01BA5081680 Qual. in Richmond Co.
Certificate Filed in New York County
Commission Expires July 7, 1999
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23rd day of March, 1998, before me personally came Robert E.
Keilman, to me known, who, being by me duly sworn, did depose and say that he is
an Administrative Trustee of BNY Capital III, one of the corporations described
in and which executed the foregoing instrument; that he signed his name thereto
by authority of the Board of Directors of said corporation.
/s/ Ellen I. Banney
-------------------------------------
Ellen I. Banney
Notary Public, State of New York
No. 01BA5081680 Qual. in Richmond Co.
Certificate Filed in New York County
Commission Expires July 7, 1999
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23rd day of March, 1998, before me personally came John A. Park,
III, to me known, who, being by me duly sworn, did depose and say that he is an
Administrative Trustee of BNY Capital III, one of the corporations described in
and which executed the foregoing instrument; that he signed his name thereto by
authority of the Board of Directors of said corporation.
/s/ Ellen I. Banney
-------------------------------------
Ellen I. Banney
Notary Public, State of New York
No. 01BA5081680 Qual. in Richmond Co.
Certificate Filed in New York County
Commission Expires July 7, 1999
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 19th day of March, 1998, before me personally came John R.
Prendiville, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of The First National Bank of Chicago, one of the
corporations described herein and which executed the foregoing instrument; that
he that he signed his name thereto by authority of the Board of Directors of
said corporation.
/s/ Somsri Helmer
-------------------------------------
Notary Public, State of Illinois
Official Seal
Somsri Helmer
Notary Public, State of Illinois
My Commission Expires: 01/14/99
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STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 19th day of March, 1998, before me personally came John R.
Prendiville, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of First Chicago Delaware Inc., one of the corporations
described herein and which executed the foregoing instrument; that he that he
signed his name thereto by authority of the Board of Directors of said
corporation.
/s/ Somsri Helmer
-------------------------------------
Notary Public, State of Illinois
Official Seal
Somsri Helmer
Notary Public, State of Illinois
My Commission Expires: 01/14/99
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Exhibit A
[CERTIFICATE OF TRUST]
OF
BNY CAPITAL III
This Certificate of Trust of BNY Capital III (the "Trust"), dated
November 6, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (S) 3801 et seq.)
1. Name. The name of the business trust being formed hereby is BNY
Capital III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is First
Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
November 12, 1996.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.
By: ___________________________________
Name:
Title:
_______________________________
as Regular Trustee
_______________________________
as Regular Trustee
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Exhibit B
[FORM OF LETTER OF REPRESENTATIONS]
March ___, 1998
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099.
Attention: General Counsel's Office
Re: BNY Capital III
7.05% Preferred Securities, Series D
CUSIP No.
------------------------------------
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to
the issuance and deposit with The Depository Trust Company ("DTC") of the
book-entry-only portion of the 7.05% Preferred Securities, Series D (the "Series
D Preferred Securities"), of BNY Capital III, a statutory business trust formed
under the laws of the State of Delaware (the "Issuer"), governed by the Amended
and Restated Trust Agreement, dated as of March 24, 1998 (the "Amended and
Restated Trust Agreement"), between The Bank of New York Company, Inc. (the
"Corporation"), as Depositor, The First National Bank of Chicago, as Property
Trustee, First Chicago Delaware Inc., as Delaware Trustee, and the
Administrative Trustees named therein. The payment of distributions on the
Series D Preferred Securities and payments due upon liquidation of the Issuer or
redemption of the Series D Preferred Securities, to the extent the Issuer has
funds available for the payment thereof, are guaranteed by the Corporation to
the extent set forth in a Guarantee Agreement, dated as of March 24, 1998,
between the Corporation and The First National Bank of Chicago, as Guarantee
Trustee with respect to the Series D Preferred Securities. The Corporation and
the Issuer propose to sell the Series D Preferred Securities to the Underwriters
(the "Underwriters") pursuant to a Pricing Agreement, dated as of March 12,
1998, by and among the Underwriters, the Issuer and the Corporation, which
incorporates the provisions of the Underwriting Agreement Standard Provisions
(December 1997), and
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the Underwriters wish to take delivery of the Series D Preferred Securities
through DTC. The First National Bank of Chicago is acting as transfer agent and
registrar with respect to the Series D Preferred Securities (the "Transfer Agent
and Registrar").
To induce DTC to accept the Series D Preferred Securities as eligible
for deposit at DTC, and to act in accordance with DTC's rules with respect to
the Series D Preferred Securities, the Issuer and the Transfer Agent and
Registrar make the following representations to DTC:
1. Prior to the closing of the sale of the Series D Preferred
Securities to the Underwriters on March 24, 1998, there shall be deposited with,
or held by the Transfer Agent and Registrar as custodian for, DTC one or more
global certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's nominee, Cede & Co., representing an aggregate
of 12,000,000 Series D Preferred Securities and bearing the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
Issuer or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of the Issuer provides for
the voting by holders (with no provision for revocation of consents or votes by
subsequent holders) of the Series D Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Series D Preferred Securities outstanding, the Issuer or
the Transfer Agent and Registrar shall send DTC a notice of such event as soon
as possible but, at least 5 business days prior to the effective date of such
event.
4. In the event of any distribution on, or an offering or issuance of
rights with respect to, the Series D Preferred Securities outstanding, the
Issuer or the
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Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Series D Preferred Securities is required; and (c) the date any required notice
is to be mailed by or on behalf of the Issuer to holders of Series D Preferred
Securities or published by or on behalf of the Issuer (whether by mail or
publication, the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before the
Publication Date. The Issuer or the Transfer Agent and Registrar will forward
such notice either in a separate secure transmission for each CUSIP number or in
a secure transmission of multiple CUSIP numbers (if applicable) that includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be not less
than 30 calendar days nor more than 60 calendar days prior to the payment of any
such distribution or any such offering or issuance of rights with respect to the
Series D Preferred Securities. After establishing the amount of payment to be
made on the Series D Preferred Securities, the Issuer or the Transfer Agent and
Registrar will notify DTC's Dividend Department of such payment 5 business days
prior to payment date. Notices to DTC's Dividend Department by telecopy shall be
sent to (212) 709-1723. Such notices by mail or by any other means shall be sent
to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Series D Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
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Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Series D Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes), shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709- 6884, or
by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Series D Preferred Securities and the accompanying
designation of the Series D Preferred Securities, which, as of the date of this
letter, is "BNY Capital III, 7.05% Preferred Securities, Series D".
8. Distribution payments or other cash payments with respect to the
Series D Preferred Securities shall be governed by DTC's current Principal and
Income Payments Rider, a copy of which is attached hereto as Annex I. For
purposes of this letter, the term "Agent" used in Annex I shall be deemed to
refer to The First National Bank of Chicago or any successor Property Trustee
under the Amended and Restated Trust Agreement.
9. DTC may direct the Issuer and the Transfer Agent and Registrar to
use any other telecopy number or address of DTC as the number or address to
which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Series D Preferred Securities outstanding evidenced by the
Global Certificate, DTC, in its discretion: (a) may request the Issuer or the
Transfer Agent and Registrar to issue and
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countersign a new Global Certificate; or (b) may make an appropriate notation
on the Global Certificate indicating the date and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Series D Preferred Securities at any time by giving reasonable
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Series D Preferred Securities deposited with it) and
discharging its responsibilities with respect thereto under applicable law.
Under such circumstances, the Issuer may determine to make alternative
arrangements for book-entry settlement for the Series D Preferred Securities,
make available one or more separate global certificates evidencing Series D
Preferred Securities to any Participant having Series D Preferred Securities
credited to its DTC account, or issue definitive Series D Preferred Securities
to the beneficial holders thereof, and in any such case, DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
12. In the event that the Issuer determines that beneficial owners of
Series D Preferred Securities shall be able to obtain definitive Series D
Preferred Securities, the Issuer or the Transfer Agent and Registrar shall
notify DTC of the availability of certificates. In such event, the Issuer or the
Transfer Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
B-5
<PAGE>
Nothing herein shall be deemed to require the Transfer Agent and
Registrar to advance funds on behalf of BNY Capital III.
Very truly yours,
BNY CAPITAL III
(As Issuer)
By:__________________________________
Administrative Trustee
THE FIRST NATIONAL BANK OF CHICAGO
(As Transfer Agent and Registrar)
By:__________________________________
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:__________________________
Authorized Officer
B-6
<PAGE>
Exhibit C
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR
OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE
LAW AND SECTION 5.11 OF THE TRUST AGREEMENT AND ONLY IN
CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT
OF THE EXPENSE AGREEMENT REFERRED TO THEREIN
Certificate Number Number of Common Securities
CI-
Certificate Evidencing Common Securities
of
BNY Capital III
7.05% Common Securities
(liquidation amount $25 per Common Security)
BNY Capital III, a statutory business trust formed under the laws of
the State of Delaware (the "Issuer Trust"), hereby certifies that [NAME OF
HOLDER] (the "Holder") is the registered owner of common securities of the
Issuer Trust representing undivided common beneficial interests in the assets of
the Issuer Trust and designated the 7.05% Common Securities (liquidation amount
$25 per Common Security) (the "Common Securities"). Except in accordance with
Section 5.11 of the Trust Agreement (as defined below) the Common Securities are
not transferable and any attempted transfer hereof other than in accordance
therewith shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of March 24,
1998, as the same may be amended from time to time (the "Trust Agreement"),
among The Bank of New York Company, Inc., as Depositor, The First National Bank
of Chicago, as Property Trustee, First Chicago Delaware Inc., as Delaware
Trustee, and the Administrative Trustees named therein, including the
designation of the terms of the Common Securities as set forth therein. The
Issuer Trust will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Issuer Trust at its principal place of
business or registered office.
C-1
<PAGE>
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Common Securities Certificate shall be governed by and construed
in accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this certificate this ____ day of March, 1998.
BNY CAPITAL III
By: _______________________________
Name:
Administrative Trustee
C-2
<PAGE>
Exhibit D
[FORM OF EXPENSE AGREEMENT]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of March 24, 1998,
between The Bank of New York Company, Inc., a New York corporation, as Depositor
(the "Depositor"), and BNY Capital III, a Delaware business trust (the "Issuer
Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire Debentures from the Depositor, and to issue
and sell 7.05% Preferred Securities, Series D (the "Series D Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement, dated as of March
24, 1998, among The Bank of New York Company, Inc., as Depositor, The First
National Bank of Chicago, as Property Trustee, First Chicago Delaware Inc., as
Delaware Trustee, and the Administrative Trustees named therein, as the same may
be amended from time to time (the "Trust Agreement");
WHEREAS, the Depositor will own all of the Common Securities of the
Trust;
WHEREAS, capitalized terms used but not defined herein shall have the
meanings set forth in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
SECTION 1.1. Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities of the
Issuer Trust, other than obligations of the Issuer Trust to pay to holders of
any Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Depositor under this Agreement shall
constitute unsecured obligations of the Depositor and shall rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Depositor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Depositor
hereunder. The obligations of the Depositor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Depositor.
D-1
<PAGE>
SECTION 1.3. Term of Agreement. This Agreement shall terminate and be
of no further force and effect upon the dissolution of the Issuer Trust;
provided, however, that this Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any holder of Series D
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Series D Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Depositor and The First
National Bank of Chicago, as guarantee trustee, or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.4. Waiver of Notice. The Depositor hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Depositor hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Depositor under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Issuer Trust in accordance
with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Depositor with respect to the happening of any of the
foregoing.
SECTION 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Depositor and the Depositor waives any right or remedy to
require that any action be brought against the Issuer Trust or any other person
or entity before proceeding against the Depositor.
SECTION 1.7. Subrogation. The Depositor shall be subrogated to all
rights (if any) of any Beneficiary against the Issuer Trust in respect of any
amounts paid to the Beneficiaries by the Depositor under this Agreement;
provided, however, that the Depositor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all
D-2
<PAGE>
cases as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void; provided, however, that, upon any transfer
of the Common Securities, this Agreement shall be assigned and delegated by the
Depositor to its successor with such transfer without any action by either party
hereto.
SECTION 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Depositor and shall inure to the benefit of the
Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any Beneficiary or any
Series D Preferred Securities are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Series D Preferred Securities without the consent of such Beneficiary or
the holders of the Series D Preferred Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex):
BNY Capital III
c/o The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670
Facsimile No.: (312) 407-1708
Attention: Corporate Trust Administration
With a copy to:
The Bank of New York Company, Inc.
48 Wall Street
New York, New York 10286
Facsimile No.: (212) 635-1698
Attention: Secretary
D-3
<PAGE>
SECTION 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
D-4
<PAGE>
THIS AGREEMENT is executed as of the day and year first above written.
THE BANK OF NEW YORK COMPANY, INC.
By: ______________________________
Name: Robert E. Keilman
Title: Comptroller
BNY CAPITAL III
By: ______________________________
Name: John A. Park, III
Administrative Trustee
D-5
<PAGE>
Exhibit E
[FORM OF PREFERRED SECURITIES CERTIFICATE]
[IF THE PREFERRED SECURITIES CERTIFICATE IS TO BE EVIDENCED BY A BOOK-
ENTRY PREFERRED SECURITIES CERTIFICATE, INSERT--This Preferred Securities
Certificate is a Book-Entry Preferred Securities Certificate within the meaning
of the Trust Agreement hereinafter referred to and is registered in the name of
a Depositary or a nominee of a Depositary. This Preferred Securities Certificate
is exchangeable for Preferred Securities Certificates registered in the name of
a person other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary, except in
the limited circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to BNY Capital III or its agent for registration of
transfer, exchange or payment, and any Preferred Security Certificate issued is
registered in the name of Cede & Co. or such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
E-1
<PAGE>
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
CAI-
CUSIP NO. __________________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BNY CAPITAL III
7.05% PREFERRED SECURITIES, SERIES D
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
BNY Capital III, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that _______ (the
"Holder") is the registered owner of ( ) Preferred Securities of the Issuer
Trust representing an undivided preferred beneficial interest in the assets of
the Issuer Trust and designated the BNY Capital III 7.05% Preferred Securities,
Series D (liquidation amount $25 per Preferred Security) (the "Series D
Preferred Securities"). The Series D Preferred Securities are transferable on
the books and records of the Issuer Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.5 of the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Issuer Trust, dated as of March 24, 1998, as the
same may be amended from time to time (the "Trust Agreement"), among The Bank of
New York Company Inc., as Depositor, The First National Bank of Chicago, as
Property Trustee, First Chicago Delaware Inc., as Delaware Trustee, and the
Administrative Trustees named therein, including the designation of the terms of
the Preferred Securities as set forth therein. The Holder is entitled to the
benefits of the Guarantee Agreement entered into by The Bank of New York
Company, Inc., a New York corporation, and The First National Bank of Chicago,
as Guarantee Trustee, dated as of March 24, 1998 (the "Guarantee Agreement"), to
the extent provided therein. The Property Trustee will furnish a copy of the
Trust Agreement and the Guarantee Agreement to the Holder without charge upon
written request to the Issuer Trust at its principal place of business or
registered office.
E-2
<PAGE>
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Preferred Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Exhibits thereto.
E-3
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this ____ day of March, 1998.
BNY Capital III
By: _________________________________
Name:
Administrative Trustee
E-4
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints ______________________________________________________
_______________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: ____________________________________________________________________
(Sign exactly as your name appears on the other side of this
Capital Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
E-5
Exhibit 4.4
This Preferred Securities Certificate is a Book-Entry Preferred
Securities Certificate within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Preferred Securities Certificate is exchangeable for Preferred
Securities Certificates registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described in the
Trust Agreement and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to BNY Capital III or its agent for registration of
transfer, exchange or payment, and any Preferred Security Certificate issued is
registered in the name of Cede & Co. or such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
<PAGE>
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
PDIII-1 6,000,000
CUSIP NO. 05563W206
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BNY CAPITAL III
7.05% PREFERRED SECURITIES, SERIES D
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
BNY Capital III, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of Six Million (6,000,000) Preferred
Securities of the Issuer Trust representing an undivided preferred beneficial
interest in the assets of the Issuer Trust and designated the BNY Capital III
7.05% Preferred Securities, Series D (liquidation amount $25 per Preferred
Security) (the "Series D Preferred Securities"). The Series D Preferred
Securities are transferable on the books and records of the Issuer Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.5 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Series D
Preferred Securities are set forth in, and this certificate and the Series D
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of March 24, 1998, as the same may be amended from
time to time (the "Trust Agreement"), among The Bank of New York Company Inc.,
as Depositor, The First National Bank of Chicago, as Property Trustee, First
Chicago Delaware Inc., as Delaware Trustee, and the Administrative Trustees
named therein, including the designation of the terms of the Series D Preferred
Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by The Bank of New York Company, Inc., a New
York corporation, and The First National Bank of Chicago, as Guarantee Trustee,
dated as of March 24, 1998 (the "Guarantee Agreement"), to the extent provided
therein. The Property Trustee will furnish a copy of the Trust Agreement and the
Guarantee Agreement to the Holder without charge upon written request to the
Issuer Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Preferred Securities Certificate shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
<PAGE>
All capitalized terms used but not defined in this Preferred Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Exhibits thereto.
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this 24th day of March, 1998.
BNY Capital III
By: /s/ Robert Keilman
-------------------------------
Robert Keilman
Administrative Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints ______________________________________________________
_______________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: ____________________________________________________________________
(Sign exactly as your name appears on the other side of this
Capital Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
<PAGE>
This Preferred Securities Certificate is a Book-Entry Preferred
Securities Certificate within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Preferred Securities Certificate is exchangeable for Preferred
Securities Certificates registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described in the
Trust Agreement and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to BNY Capital III or its agent for registration of
transfer, exchange or payment, and any Preferred Security Certificate issued is
registered in the name of Cede & Co. or such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
<PAGE>
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
PDIII-2 6,000,000
CUSIP NO. 05563W206
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BNY CAPITAL III
7.05% PREFERRED SECURITIES, SERIES D
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
BNY Capital III, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of Six Million (6,000,000) Preferred
Securities of the Issuer Trust representing an undivided preferred beneficial
interest in the assets of the Issuer Trust and designated the BNY Capital III
7.05% Preferred Securities, Series D (liquidation amount $25 per Preferred
Security) (the "Series D Preferred Securities"). The Series D Preferred
Securities are transferable on the books and records of the Issuer Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.5 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Series D
Preferred Securities are set forth in, and this certificate and the Series D
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of March 24, 1998, as the same may be amended from
time to time (the "Trust Agreement"), among The Bank of New York Company Inc.,
as Depositor, The First National Bank of Chicago, as Property Trustee, First
Chicago Delaware Inc., as Delaware Trustee, and the Administrative Trustees
named therein, including the designation of the terms of the Series D Preferred
Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by The Bank of New York Company, Inc., a New
York corporation, and The First National Bank of Chicago, as Guarantee Trustee,
dated as of March 24, 1998 (the "Guarantee Agreement"), to the extent provided
therein. The Property Trustee will furnish a copy of the Trust Agreement and the
Guarantee Agreement to the Holder without charge upon written request to the
Issuer Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Preferred Securities Certificate shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
<PAGE>
All capitalized terms used but not defined in this Preferred Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Exhibits thereto.
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this 24th day of March, 1998.
BNY Capital III
By: /s/ Robert Keilman
-------------------------------
Robert Keilman
Administrative Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints ______________________________________________________
_______________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: ____________________________________________________________________
(Sign exactly as your name appears on the other side of this
Capital Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
Exhbit 4.5
================================================================================
GUARANTEE AGREEMENT
BY AND BETWEEN
THE BANK OF NEW YORK COMPANY, INC.,
as Guarantor
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
RELATING TO
BNY CAPITAL III
---------------------------
Dated as of March 24, 1998
---------------------------
================================================================================
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
310(a).............................................................4.1(a)
310(b).............................................................4.1(c), 2.8
310(c).............................................................Inapplicable
311(a).............................................................2.2(b)
311(b).............................................................2.2(b)
311(c).............................................................Inapplicable
312(a).............................................................2.2(a)
312(b).............................................................2.2(b)
313................................................................2.3
314(a).............................................................2.4
314(b).............................................................Inapplicable
314(c).............................................................2.5
314(d).............................................................Inapplicable
314(e).............................................................1.1, 2.5, 3.2
314(f).............................................................2.1, 3.2
315(a).............................................................3.1(d)
315(b).............................................................2.7
315(c).............................................................3.1
315(d).............................................................3.1(d)
316(a).............................................................1.1, 2.6, 5.4
316(b).............................................................5.3
316(c).............................................................8.2
317(a).............................................................Inapplicable
317(b).............................................................Inapplicable
318(a).............................................................2.1
318(b).............................................................2.1
318(c).............................................................2.1
- ------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.................................................... 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application............................... 5
SECTION 2.2. List of Holders................................................ 5
SECTION 2.3. Reports by the Guarantee Trustee............................... 5
SECTION 2.4. Periodic Reports to the Guarantee Trustee...................... 5
SECTION 2.5. Evidence of Compliance with Conditions Precedent............... 6
SECTION 2.6. Events of Default; Waiver...................................... 6
SECTION 2.7. Event of Default; Notice....................................... 6
SECTION 2.8. Conflicting Interests.......................................... 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee..................... 7
SECTION 3.2. Certain Rights of Guarantee Trustee............................ 8
SECTION 3.3. Compensation; Indemnity; Fees.................................. 10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility................................. 10
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee....................................................... 11
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ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee...................................................... 11
SECTION 5.2. Waiver of Notice and Demand.................................... 12
SECTION 5.3. Obligations Not Affected....................................... 12
SECTION 5.4. Rights of Holders.............................................. 13
SECTION 5.5. Guarantee of Payment........................................... 13
SECTION 5.6. Subrogation.................................................... 13
SECTION 5.7. Independent Obligations........................................ 13
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.................................................. 14
SECTION 6.2. Pari Passu Guarantees.......................................... 14
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.................................................... 14
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns......................................... 15
SECTION 8.2. Amendments..................................................... 15
SECTION 8.3. Notices........................................................ 15
SECTION 8.4. Benefit........................................................ 16
SECTION 8.5. Governing Law.................................................. 16
SECTION 8.6. Counterparts................................................... 16
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GUARANTEE AGREEMENT, dated as of March 24, 1998, between THE BANK OF
NEW YORK COMPANY, INC., a New York corporation (the "Guarantor"), having its
principal office at 48 Wall Street, New York, New York 10286, and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Series D Preferred Securities (as defined herein) of BNY
CAPITAL III, a Delaware statutory business trust (the "Issuer Trust").
RECITALS OF THE CORPORATION
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as
of March 24, 1998 (the "Trust Agreement"), among The Bank of New York Company,
Inc., as Depositor, the Property Trustee, the Delaware Trustee and the
Administrative Trustees named therein, the Issuer Trust is issuing $300,000,000
aggregate Liquidation Amount (as defined in the Trust Agreement) of its 7.05%
Preferred Securities, Series D (liquidation amount $25 per Preferred Security)
(the "Series D Preferred Securities"), representing preferred undivided
beneficial interests in the assets of the Issuer Trust and having the terms set
forth in the Trust Agreement; and
WHEREAS, the Series D Preferred Securities will be issued by the Issuer
Trust and the proceeds thereof, together with the proceeds from the issuance of
the Issuer Trust's Common Securities (as defined herein), will be used to
purchase the Debentures (as defined in the Trust Agreement) of the Guarantor,
which Debentures will be deposited with The First National Bank of Chicago, as
Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase the Series D
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Holders of the Series D
Preferred Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of the Series D
Preferred Securities by each Holder, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, the Guarantor executes and delivers
this Guarantee Agreement for the benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
For all purposes of this Guarantee Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
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(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Guarantee Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Guarantee Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the board of directors of the Guarantor or
the Executive Committee of the board of directors of the Guarantor (or any other
committee of the board of directors of the Guarantor performing similar
functions) or a committee designated by the board of directors of the Guarantor
(or such committee), comprised of two or more members of the board of directors
of the Guarantor or officers of the Guarantor, or both.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any of its
payment obligations under this Guarantee Agreement or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Series D Preferred Securities, to the
extent not paid or made by or on behalf of the Issuer Trust: (i) any accumulated
and unpaid Distributions (as defined in the Trust Agreement) required to be paid
on the Series D Preferred Securities, to the extent the
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Issuer Trust shall have funds on hand available therefor at such time; (ii) the
Redemption Price (as defined in the Trust Agreement) with respect to any Series
D Preferred Securities called for redemption by the Issuer Trust, to the extent
the Issuer Trust shall have funds on hand available therefor at such time; and
(iii) upon a voluntary or involuntary termination, winding-up or liquidation of
the Issuer Trust, unless Debentures are distributed to the Holders, the lesser
of (a) the Liquidation Distribution (as defined in the Trust Agreement) with
respect to the Series D Preferred Securities, to the extent that the Issuer
Trust shall have funds on hand available therefor at such time, and (b) the
amount of assets of the Issuer Trust remaining available for distribution to
Holders on liquidation of the Issuer.
"Guarantee Trustee" means The First National Bank of Chicago, solely in
its capacity as Guarantee Trustee and not in its individual capacity, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement, and thereafter means each
such Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"Holder" means any Holder (as defined in the Trust Agreement) of any
Series D Preferred Securities; provided, however, that in determining whether
the holders of the requisite percentage of Series D Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture, dated as of
December 25, 1996, between The Bank of New York Company, Inc. and The First
National Bank of Chicago, as trustee, as the same may be modified, amended or
supplemented from time to time.
"Issuer Trust" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Series D Preferred Securities"
means, except as provided by the Trust Indenture Act, Series D Preferred
Securities representing more than 50% of the aggregate Liquidation Amount (as
defined in the Trust Agreement) of all Series D Preferred Securities then
Outstanding (as defined in the Trust Agreement).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman or a Vice Chairman of the Board of Directors
of such Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Guarantor, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
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(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, company,
limited liability company, trust, business trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Guarantee Trustee and also means, with respect to a
particular matter, any other officer to whom such matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement of the
Issuer Trust referred to in the recitals to this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Guarantee Agreement was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Series D Preferred Securities" has the meaning specified in the
recitals to this Guarantee Agreement.
"Vice President," when used with respect to the Corporation, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Section 310 and 317,
inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control. If any provision of this Guarantee
Agreement modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Guarantee Agreement as so modified or to be excluded, as the case may be.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before June 30 and December 31 of each
year, a list, in such form as the Guarantee Trustee may reasonably require, of
the names and addresses of the Holders (a "List of Holders") as of a date not
more than 15 days prior to the delivery thereof, and (b) at such other times as
the Guarantee Trustee may request in writing, within 30 days after the receipt
by the Guarantor of any such request, a List of Holders as of a date not more
than 15 days prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the Guarantor and has
not otherwise been received by the Guarantee Trustee in its capacity as such.
The Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements of Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than 60 days after May 15 of each year, commencing with May
15, 1998, the Guarantee Trustee shall provide to the Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, dated as of May 15
of such year and in the form and in the manner provided by Section 313 of the
Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314
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of the Trust Indenture Act, in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given
in the form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of the Series
D Preferred Securities may, by vote, on behalf of the Holders of all the Series
D Preferred Securities, waive any past default or Event of Default and its
consequences. Upon such waiver, any such default or Event of Default shall cease
to exist, and any default or Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default known to the Guarantee Trustee, transmit by mail, first
class postage prepaid, to the Holders, notice of any such Event of Default,
unless such Event of Default has been cured before the giving of such notice,
provided that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained actual knowledge, of such Event of
Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee hereunder. The right, title and interest of the Guarantee
Trustee, as such, hereunder shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. The Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Guarantee Agreement,
and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own wilful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement (including pursuant to Section 2.1), and the Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture
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Act are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Guarantee Agreement.
(ii) The Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made.
(iii) The Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Series D Preferred Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee
Agreement.
(iv) No provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of
such request from the Guarantee Trustee, shall be promptly delivered by
the Guarantor.
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(iv) The Guarantee Trustee may consult with legal counsel, and the
written advice or opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder unless such Holder shall have
provided to the Guarantee Trustee such adequate security and indemnity
as would satisfy a reasonable person in the position of the Guarantee
Trustee against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Guarantee Trustee; provided that nothing
contained in this Section 3.2(a)(v) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed by it with due care hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (A) may request instructions
from the Holders, (B) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(C) shall be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
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SECTION 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such
reasonable compensation for all services rendered by it hereunder as
may be agreed by the Guarantor and the Guarantee Trustee from time to
time (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Guarantee Trustee upon request for all reasonable expenses,
disbursements and advances incurred or made by the Guarantee Trustee in
accordance with any provision of this Guarantee Agreement (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence, wilful misconduct or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or
administration of this Guarantee Agreement, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. The Guarantor's indemnification obligations as set forth in this
Section 3.3 shall survive the termination of this Guarantee Agreement or the
resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of
Section 310(a) of the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of its supervising or examining authority, then, for
the purposes of this Section 4.1 and to the extent permitted by the
Trust Indenture Act, the combined
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capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer Trust may have or
assert, except the defense of payment. The Guarantor's obligation
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to make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer Trust to pay
such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer Trust of any express or
implied agreement, covenant, term or condition relating to the Series D
Preferred Securities to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of
all or any portion of the Distributions (other than an extension of
time for payment of Distributions that results from the extension of
any interest payment period on the Debentures as provided in the
Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Series D Preferred Securities or
the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Series D Preferred
Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Series D Preferred Securities, or any action on the part of the Issuer
Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of
debt of, or other similar proceedings affecting, the Issuer Trust or
any of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Series D
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
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<PAGE>
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor
(other than payment of the underlying obligation), it being the intent
of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Series D Preferred Securities have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee Agreement or exercising
any trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement without first
instituting a legal proceeding against the Guarantee Trustee, the Issuer Trust
or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Debentures to Holders as
provided in the Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to the Series D
Preferred Securities and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments
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<PAGE>
pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall
rank pari passu with the obligations of the Guarantor under (i) any similar
guarantee agreements issued by the Guarantor on behalf of the holders of
preferred or capital securities issued by any Issuer Trust (as defined in the
Indenture), (ii) the Indenture and the Securities (as defined therein) issued
thereunder, (iii) the Expense Agreement (as defined in the Trust Agreement) and
any similar expense agreements entered into by the Guarantor in connection with
the offering of Series D Preferred Securities (as defined in the Indenture) by
any Issuer Trust (as defined in the Indenture), and (iv) any other security,
guarantee or other agreement or obligation that is expressly stated to rank pari
passu with the obligations of the Guarantor under this Guarantee Agreement or
with any obligation that ranks pari passu with the obligations of the Guarantor
under this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price (as defined in the Trust
Agreement) of all Series D Preferred Securities, (ii) the distribution of
Debentures to the Holders in exchange for all of the Series D Preferred
Securities or (iii) full payment of the amounts payable in accordance with
Article IX of the Trust Agreement upon liquidation of the Issuer Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the
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<PAGE>
case may be, if at any time any Holder is required to repay any sums paid with
respect to the Series D Preferred Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Series D
Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article VIII of the Indenture and pursuant to which the successor or assignee
agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder, and any purported
assignment other than in accordance with this provision shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than a Majority in Liquidation Amount
of the Series D Preferred Securities. The provisions of Article VI of the Trust
Agreement concerning meetings of the Holders shall apply to the giving of such
approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address or telecopy number as the Guarantor may give
notice to the Guarantee Trustee and the Holders:
The Bank of New York Company, Inc.
48 Wall Street
New York, New York 10286
Attention: Secretary
Telecopy: 212-635-1698
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<PAGE>
(b) if given to the Guarantee Trustee, at the address or telecopy
number set forth below or such other address or telecopy number as the Guarantee
Trustee may give notice to the Guarantor and Holders:
The First National Bank of Chicago
One First National Bank Plaza, Suite 0126
Chicago, Illinois 60670
Attention: Corporate Trust Administration
Telecopy: 312-407-1708
with a copy to:
BNY Capital III
c/o The Bank of New York Company, Inc.
48 Wall Street
New York, New York 10286
Attention: Secretary
Telecopy: 212-635-1698
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Series D Preferred Securities.
SECTION 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.6. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the day and year first above written.
THE BANK OF NEW YORK COMPANY, INC.
By: /s/ Robert E. Keilmen
-----------------------------------
Name: Robert E. Keilman
Title: Comptroller
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
By: /s/ John R. Prendiville
-----------------------------------
Name: John R. Prendiville
Title: Vice President
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<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23rd day of March, 1998, before me personally came Robert E.
Keilman, to me known, who, being by me duly sworn, did depose and say that he is
Comptroller of The Bank of New York Company, Inc., one of the corporations
described in and which executed the foregoing instrument; that he/she signed
his/her name thereto by authority of the Board of Directors of said corporation.
/s/ Ellen I. Banney
- -------------------------------------
Notary Public, State of New York
No. 01BA5081680 Qual. in Richmond Co.
Certificate Filed in New York County
Commission Expires July 7, 1999
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 19th day of March, 1998, before me personally came John R.
Prendiville, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of The First National Bank of Chicago, one of the
corporations described in and which executed the foregoing instrument by
authority of the Board of Directors of said corporation.
/s/ Somsri Helmer
- ------------------------------------
Official Seal
Somsri Helmer
Notary Public, State of Illinois
My Commission Expires: 01/14/99
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Exhibit 4.6
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of March 24, 1998,
between The Bank of New York Company, Inc., a New York corporation, as Depositor
(the "Depositor"), and BNY Capital III, a Delaware business trust (the "Issuer
Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire Debentures from the Depositor, and to issue
and sell 7.05% Preferred Securities, Series D (the "Series D Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement, dated as of March
24, 1998, among The Bank of New York Company, Inc., as Depositor, The First
National Bank of Chicago, as Property Trustee, First Chicago Delaware Inc., as
Delaware Trustee, and the Administrative Trustees named therein, as the same may
be amended from time to time (the "Trust Agreement");
WHEREAS, the Depositor will own all of the Common Securities of the
Trust;
WHEREAS, capitalized terms used but not defined herein shall have the
meanings set forth in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
SECTION 1.1. Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities of the
Issuer Trust, other than obligations of the Issuer Trust to pay to holders of
any Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Depositor under this Agreement shall
constitute unsecured obligations of the Depositor and shall rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Depositor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Depositor
hereunder. The obligations of the Depositor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Depositor.
<PAGE>
SECTION 1.3. Term of Agreement. This Agreement shall terminate and be
of no further force and effect upon the dissolution of the Issuer Trust;
provided, however, that this Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any holder of Series D
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Series D Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Depositor and The First
National Bank of Chicago, as guarantee trustee, or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.4. Waiver of Notice. The Depositor hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Depositor hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Depositor under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Issuer Trust in accordance
with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Depositor with respect to the happening of any of the
foregoing.
SECTION 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Depositor and the Depositor waives any right or remedy to
require that any action be brought against the Issuer Trust or any other person
or entity before proceeding against the Depositor.
SECTION 1.7. Subrogation. The Depositor shall be subrogated to all
rights (if any) of any Beneficiary against the Issuer Trust in respect of any
amounts paid to the Beneficiaries by the Depositor under this Agreement;
provided, however, that the Depositor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other
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<PAGE>
agreement, in all cases as a result of payment under this Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void; provided, however, that, upon any transfer
of the Common Securities, this Agreement shall be assigned and delegated by the
Depositor to its successor with such transfer without any action by either party
hereto.
SECTION 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Depositor and shall inure to the benefit of the
Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any Beneficiary or any
Series D Preferred Securities are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Series D Preferred Securities without the consent of such Beneficiary or
the holders of the Series D Preferred Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex):
BNY Capital III
c/o The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670
Facsimile No.: (312) 407-1708
Attention: Corporate Trust Administration
With a copy to:
The Bank of New York Company, Inc.
48 Wall Street
New York, New York 10286
Facsimile No.: (212) 635-1698
Attention: Secretary
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<PAGE>
SECTION 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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<PAGE>
THIS AGREEMENT is executed as of the day and year first above written.
THE BANK OF NEW YORK COMPANY,
INC.
By: /s/ Robert E. Keilman
----------------------------------
Name: Robert E. Keilman
Title: Comptroller
BNY CAPITAL III
By: /s/ John A. Park, III
----------------------------------
Name: John A. Park, III
Administrative Trustee
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