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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): July 30, 1999
THE BANK OF NEW YORK COMPANY, INC.
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(exact name of registrant as specified in its charter)
NEW YORK
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(State or other jurisdiction of incorporation)
1-6152 13-2614959
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(Commission file number) (I.R.S. employer
identification number)
One Wall Street, New York, NY 10286
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(Address of principal (Zip code)
executive offices)
212 - 495 - 1784
----------------
(Registrant's telephone number,
including area code)
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Item 5 Other Events
- ------ ------------
Four exhibits are filed herewith in connection with the Registration
Statements on Form S-3 (File Nos. 33-61957, 333-70187, 333-70187-01, 333-
70187-02, 333-70187-03 and 333-70187-04) filed by The Bank of New York
Company, Inc. (the "Company") with the Securities and Exchange Commission
covering the Company's Senior Subordinated Medium-Term Notes, Series D and
Senior Medium-Term Notes, Series C (collectively, the "Notes"), issuable under
an Indenture, dated as of October 1, 1993 between the Company and Chase
Manhattan Trust Company National Association (the "Senior Subordinated
Indenture") and an Indenture, dated as of July 18, 1991 between the Company
and Bankers Trust Company, respectively (the "Senior Indenture" and together
with the Senior Subordinated Indenture, the "Indentures"). The exhibits
consist of the Distribution Agreement, dated July 30, 1999, among the Company,
Goldman, Sachs & Co., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated, PaineWebber
Incorporated, Salomon Smith Barney Inc. and BNY Capital Markets, Inc. (the
"Distribution Agreement"); the Forms of Notes; Officers' Certificates pursuant
to Section 301 of the Indentures; and the opinion of counsel as to the
legality of the Notes.
Item 7 Financial Statements, Pro Forma Financial
- ------ Information and Exhibits
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(c) Exhibits
The following exhibits are filed herewith:
1 Form of Distribution Agreement, dated July 30,
1999 among the Registrant and Goldman, Sachs & Co., Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated, PaineWebber Incorporated, Salomon
Smith Barney Inc. and BNY Capital Markets, Inc., as Agents.
4.1 Form of Registrant's Global Medium Term Fixed Rate Note.
4.2 Form of Registrant's Global Medium Term Floating Rate Note.
4.3 Officers' Certificate pursuant to Section 301 of
the Senior Subordinated Indenture.
4.4 Officers' Certificate pursuant to Section 301 of
the Senior Indenture.
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5 Opinion of Paul A. Immerman, Esq.
23 Consent of Paul A. Immerman, Esq. (included in
Exhibit 5)
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SIGNATURE
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Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
Date: July 30, 1999
The Bank of New York Company, Inc.
By: /s/ Bruce Van Saun
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Name: Bruce Van Saun
Title: Senior Executive Vice President
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EXHIBIT INDEX
Exhibit No. Description
1 Form of Distribution Agreement, dated
July 30, 1999 among the Registrant and
Goldman, Sachs & Co., Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated,
PaineWebber Incorporated, Salomon Smith Barney Inc. and BNY Capital Markets,
Inc., as Agents.
4.1 Form of Registrant's Global Medium-Term Fixed Rate Note.
4.2 Form of Registrant's Global Medium-Term Floating Rate Note
4.3 Officers' Certificate pursuant to Section 301
of the Senior Subordinated Indenture.
4.4 Officers' Certificate pursuant to Section 301 of the Senior
Indenture.
5 Opinion of Paul A. Immerman, Esq.
23 Consent of Paul A. Immerman, Esq. (included
in Exhibit 5)
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THE BANK OF NEW YORK COMPANY, INC
Senior Medium-Term Notes
Senior Subordinated Medium-Term Notes
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
July 30, 1999
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
New York, New York 10281
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
BNY Capital Markets, Inc.
One Wall Street
New York, New York 10286
Dear Sirs:
The Bank of New York Company, Inc., a New York corporation (the "Company"),
confirms its agreement with Goldman, Sachs & Co., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated,
PaineWebber Inc., Salomon Smith Barney Inc. and BNY Capital Markets, Inc. (the
"Agents") with respect to the issue and sale by the Company from time to time
of its Senior Medium-Term Notes Series C (the "Senior Notes") and its Senior
Subordinated Medium-Term Notes Series D (the "Senior Subordinated Notes" and,
together with the Senior Notes, the "Notes") described herein. The Senior
Notes are to be issued pursuant to an indenture dated as of July 18, 1991, as
it may be supplemented from time to time (the "Senior Indenture"), between the
Company and Bankers Trust Company, as trustee (the "Senior Trustee"). The
Senior Subordinated Notes are to be issued pursuant to an indenture dated as
of October 1, 1993, as it may be supplemented from time to time (the "Senior
Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), between the Company and Chase Manhattan Trust Company National
Association, as trustee (the "Senior Subordinated Trustee" and, together with
the Senior Trustee, the "Trustees"). As of the date hereof, the Company has
authorized the issuance and sale of up to an aggregate initial offering price
not to exceed U.S. $895,000,000 (or its equivalent, based upon the applicable
exchange
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rate at the time of issuance, in such foreign currencies or currency units as
the Company shall designate at the time of issuance) of Notes to or through
the Agents pursuant to the terms of this Agreement. It is understood, however,
that the Company may from time to time authorize the issuance of additional
Notes and that such additional Notes may be sold through or to the Agents
pursuant to the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company directly to
purchasers, in which case the Agents will act as agents of the Company in
soliciting Note purchasers, and (as may from time to time be agreed to by the
Company and any Agent or Agents) to such Agent or Agents as principal for
resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the "SEC")
registration statements on Form S-3 (Nos. 333-70187, 333-70187-01, 333-70187-
02, 333-70187-03 and 333-70187-04 and No. 33-61957) for the registration of,
among other securities, debt securities, including the Notes, under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the SEC under the 1933 Act (the "1933 Act Regulations"). Such registration
statements have been declared effective by the SEC and the Indentures have
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statements (and any further registration statements
that may be filed by the Company for the purpose of registering additional
Notes and in connection with which this Agreement is included as an exhibit)
and the prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use
in connection with the offering of the Notes that is not required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use.
SECTION 1. Appointment as Agents.
a) Appointment of Agents.
Subject to the terms and conditions stated herein, the Company hereby appoints
the Agents as its agents for the purpose of soliciting purchases of the Notes
from the Company by others and agrees that, whenever the Company determines to
sell Notes directly to the Agents as principal for resale to others, it will
enter into a Terms Agreement (hereafter defined) relating to such sale in
accordance with the provisions of Section 3(b) hereof. The Agents are
authorized to appoint sub-agents or to engage the services of any other broker
or dealer in connection with the offer or sale of the Notes. The Company may
also sell Notes directly to investors on its own behalf, including to agents
that are not party to this Agreement and may enter into agreements similar to
this Agreement with other parties; provided, however, that the Company shall
notify the Agents upon entering into any such agreement that is substantially
similar to this Agreement.
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b) Best Efforts Solicitations; Rights to Reject Offers.
Upon receipt of instructions from the Company, the Agents will use their best
efforts to solicit purchases of such principal amount of the Notes as the
Company and the Agents shall agree upon from time to time during the term of
this Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount that shall be
authorized by the Company from time to time. The Agents will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by each Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as
a whole or in part, and any such rejection shall not be deemed a breach of
such Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
c) Solicitations as Agent; Purchases as Principal.
In soliciting purchases of the Notes on behalf of the Company, each Agent
shall act solely as agent for the Company and not as principal. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Notes has been solicited by such
Agent and accepted by the Company. The Agents shall not have any liability to
the Company in the event any such purchase is not consummated for any reason.
The Agent shall not have any obligation to purchase Notes from the Company as
principal, but each Agent may agree from time to time to purchase Notes as
principal. Any such purchase of Notes by an Agent as principal shall be made
pursuant to a Terms Agreement in accordance with Section 3(b) hereof.
d) Reliance.
The Company and the Agents agree that any Notes the placement of which an
Agent arranges shall be placed by such Agent, and any Notes purchased by an
Agent shall be purchased, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
a) The Company represents and warrants to the Agents as of the date hereof, as
of the date of each acceptance by the Company of an offer for the purchase of
Notes (whether through an Agent as agent or to an Agent as principal), as of
the date of each delivery of Notes (whether through an Agent as agent or to an
Agent as principal (the date of each such delivery to an Agent as principal
being hereafter referred to as a "Settlement Date"), and as of the times
referred to in Section 7(b) hereof (in each case the "Representation Date") as
follows:
(i) Due incorporation.
Each of the Company and The Bank of New York (the "Bank") has been duly
organized and is validly existing as a corporation or banking corporation, as
the case may be, and is an existing corporation or banking corporation, as the
case may be, in good standing under the laws of the State of New York.
(ii) Registration Statement and Prospectus.
The Registration Statement and the Prospectus, at the time the Registration
Statement became effective, conformed, and as of the applicable Representation
Date will conform, in all material respects to the requirements of the 1933
Act, the 1933 Act Regulations and the 1939 Act. The Registration Statement, at
the time the Registration Statement became effective, did not,
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and as of the applicable Representation Date will not, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
Prospectus at the time the Registration Statement became effective did not,
and as of the applicable Representation Date will not, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to any
statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by an Agent expressly for use in the Registration Statement
or the Prospectus or to that part of the Registration Statement that shall
constitute the Statement of Eligibility under the 1939 Act ("Form T-l") of the
Trustees.
(iii) Incorporated Documents.
The documents incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the SEC, conformed and will conform in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations thereunder (the
"1934 Act Regulations"), as applicable, and, when read together and with the
other information in the Prospectus, at the time the Registration Statement
became, and any amendments thereto become, effective, did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were or are made,
not misleading; provided, however, that the representations and warranties in
this subsection shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished to the Company in
writing by the Agents expressly for use in the Registration Statement or the
Prospectus.
(iv) Material Change.
Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in the credit-worthiness of the Company and its subsidiaries on a
consolidated basis, other than as set forth or contemplated in the Prospectus.
(v) No Defaults; Regulatory Approvals.
The issue and sale of the Notes and the compliance by the Company with all of
the provisions of the Notes, the Indentures, this Agreement and each
applicable Terms Agreement, if any, and the consummation of the transactions
contemplated herein and therein will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to the
terms of, any indenture, contract, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any violation by
the Company of the provisions of the Certificate of Incorporation, as amended,
or By-Laws of the Company, or any statute or any order, rule or regulation of
any court or
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governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of its properties, and no consent, approval,
authorization, order, registration or qualification of or with any court or
any such regulatory authority or other governmental agency or body is required
for the issue and sale of the Notes or the consummation of the other
transactions contemplated by this Agreement or any Terms Agreement or the
Indenture, except such as may be required under the 1933 Act, the 1939 Act and
the 1933 Act Regulations and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Notes by
the Agent.
(vi) Authorization and Validity.
The Notes have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to the
provisions of this Agreement and of the Indenture under which it is to be
issued against payment of the consideration therefor specified herein, the
Notes will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by such Indenture; each Indenture has been
duly authorized and qualified under the 1939 Act and constitutes a valid and
legally binding instrument, enforceable against the Company in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Indentures conform and the Notes of any particular issuance will conform to
the descriptions thereof in the Prospectus.
(vii) Capitalization.
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.
(viii) Legal Proceedings.
Except as otherwise disclosed in the Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency domestic or foreign,
now pending or, to the knowledge, Company, threatened against or affecting the
Company or its subsidiaries that might result in any material adverse change
in the financial condition, shareholders' equity or results of operations of
the Company and its subsidiaries considered as one enterprise.
b) Additional Certifications.
Any certificate signed by any officer of the Company and delivered to the
Agents or to counsel for the Agents in connection with an offering of Notes or
the sale of the notes to the Agent as principal shall be deemed a
representation and warranty by the Company to the Agents as to the matters
covered thereby on the date of such certificate and at each Representation
Date referred to in Section 2(a) hereof subsequent thereto.
SECTION 3.Solicitations as Agent; Purchases as Principal.
a) Solicitations as Agent.
On the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, each Agent agrees, as an
agent of the Company, to use its best efforts to solicit offers to purchase
the Notes upon the terms and conditions set forth herein and in the
Prospectus.
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The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of purchases from, the Company until such time as the Company has advised the
Agents that such solicitation may be resumed.
The Company agrees to pay the applicable Agent a commission, in the form of a
discount, equal to the applicable percentage of the amount of the principal
amount of each Note sold by the Company as a result of a solicitation made by
such Agent as set forth in Schedule A hereto. Each Agent may re-allow any
portion of the commission payable pursuant hereto to dealers or purchasers in
connection with the offer and sale of any Notes; provided, however, that such
Agent shall obtain the prior written consent of the Company to any such
reallowance.
The purchase price, interest rate, maturity date and other terms of the Notes
shall be agreed upon by the Company and the applicable Agent and set forth in
a pricing supplement to the Prospectus (a "Pricing Supplement") to be prepared
following each acceptance by the Company of an offer for the purchase of
Notes. Except as may be otherwise provided in such supplement to the
Prospectus (i.e., in the case of foreign currency denominated Notes) the Notes
will be issued in denominations of U.S. $1,000 or any amount in excess thereof
that is an integral multiple of U.S. $1,000. All Notes sold through an Agent
as agent will be sold at 100% of their principal amount unless otherwise
agreed to by the Company and such Agent.
b) Purchases as Principal.
Each sale of Notes to an Agent or Agents as principal shall be made in
accordance with the terms contained herein and (unless the Company and such
Agent or Agents shall otherwise agree) pursuant to a separate agreement that
will provide for the sale of such Notes to, and the purchase and reoffering
thereof by, such Agent or Agents. Each such separate agreement (which may be
an oral agreement promptly confirmed in writing as described below) between an
Agent or Agents and the Company is herein referred to as a "Terms Agreement."
Unless the context otherwise requires, each reference contained herein to
"this Agreement" shall be deemed to include any applicable Terms Agreement
between the Company and an Agent or Agents. Each such Terms Agreement, whether
oral (and promptly confirmed in writing, which may be by facsimile
transmission) or in writing, shall be with respect to such information (as
applicable) as is specified in Annex I hereto. Each Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement (or otherwise)
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by an Agent or Agents pursuant
thereto, the price to be paid to the Company for such Notes (which, if not so
specified in a Terms Agreement, shall be at a discount equivalent to the
applicable commission set forth on Schedule A to the applicable Terms
Agreement), the time and place of delivery of and payment for such Notes, any
provision relating to rights of and defaults by other purchasers acting
together with such Agent or Agents in the reoffering of the Notes and such
other provisions (including further terms of the Notes) as may be mutually
agreed upon. Each Agent is authorized to utilize a selling or dealer group in
connection with the resale of the Notes purchased; provided, however, that
such Agent shall obtain the prior written consent of the Company to such
utilization. Such Terms Agreement shall also specify the requirements, if any,
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for the opinions of counsel, letters of the Company's independent public
accountants and officer's certificate pursuant to Sections 7(b), 7(c) and 7(d)
hereof.
c) Administrative Procedures.
Administrative procedures with respect to the sale of Notes shall be agreed
upon from time to time by the Agents and the Company (the "Procedures"). The
Agents and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
a) Notice of Certain Events.
The Company will notify the Agents immediately of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the mailing or the delivery to
the SEC for filing of any supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act that will be incorporated by reference in the
Prospectus, (iii) the receipt of any comments from the SEC with respect to the
Registration Statement or the Prospectus, (iv) any request by the SEC for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information and (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
b) Filing of Amendments and Supplements to Prospectus and Registration
Statements.
Prior to the termination of the offering of the Notes (including by way of
resale by a Purchaser of Notes purchased pursuant to a Terms Agreement), the
Company will not file any registration statement with respect to the
registration of additional Notes or any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement (i) providing solely for a change in the interest rate
of the Notes or (ii) relating exclusively to an offering of securities other
than the Notes) unless the Company has delivered to the Agents a copy for
review prior to filing and will not file any such proposed amendment or
supplement to which any of the Agents reasonably objects; and the Company will
cause each supplement to the Prospectus (including each Pricing Supplement) to
be filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed thereby and, upon request, will
provide evidence satisfactory to the Agents of such filing.
c) Copies of the Registration Statement and the Prospectus.
The Company will deliver to the Agents as many signed and conformed copies of
the Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes.
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d) Revisions of Prospectus - Material Change.
If at any time when the Prospectus is required by the 1933 Act to be delivered
in connection with sales of the Notes any event shall occur or condition exist
as a result of which it is necessary to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary at any such time to amend or supplement the Registration Statement
or the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to purchase the
Notes in their capacity as agent and to cease sales of any Notes it may then
own as principal, and the Company will promptly prepare and file with the SEC
such amendment or supplement, whether by filing documents pursuant to the 1934
Act, the 1933 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement comply with such
requirements.
e) Prospectus Revisions - Periodic Financial Information.
On or prior to the date on which there shall be released to the general public
interim financial statement information related to the Company with respect to
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, and prior to the filing
of the Forms 10-Q or 10-K with respect to such quarters or fiscal years, the
Company shall furnish such information to the Agents, confirmed in writing,
and shall cause the Prospectus to incorporate by reference capsule financial
information with respect to the results of operations of the Company for the
period between the end of the preceding fiscal year and the end of such
quarter or for such fiscal year, as the case may be, and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding of such amounts or as shall be required by the 1933 Act or the
1933 Act Regulations; provided, however, that if on the date of such release
the Agents shall have suspended solicitation of purchases of the Notes in
their capacity as agent pursuant to a request from the Company, and the Agents
shall not then hold any Notes as principal, the Company shall not be obligated
so to amend or supplement the Prospectus until such time as the Company shall
determine that solicitation of purchases of the Notes should be resumed or
shall subsequently enter into a new Terms Agreement with an Agent, and
provided further that this covenant shall not obligate the Company to
incorporate financial information or discussion other than that contained in
its regular earnings press release with respect to such quarter or year.
f) Prospectus Revisions - Audited Financial Information.
On or prior to the date on which there shall be released to the general public
financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall
cause the Registration Statement and the Prospectus to be amended, whether by
the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise,
to include or incorporate by reference such audited financial statements and
the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations; provided, however, that
if on the date of such release the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agents pursuant to a request from
the
<PAGE> 9
Company, and the Agents shall not then hold any Notes as principal, the
Company shall not be obligated so to amend or supplement the Prospectus until
such time as the Company shall determine that solicitation of purchases of the
Notes should be resumed or shall subsequently enter into a new Terms Agreement
with an Agent.
g) Earnings Statements.
The Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement of the Company and its subsidiaries (which need
not be audited) in form complying with the provisions of Rule 158 under the
1933 Act, covering each twelve-month period beginning, in each case, not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the Registration Statement
with respect to each sale of Notes.
h) Blue Sky Qualifications.
The Company will endeavor, in cooperation with the Agents, to qualify the
Notes for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Agents may
designate, and will maintain such qualifications in effect for as long as may
be required for the distribution of the Notes; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of
the receipt by the Company of any notification with respect to the suspension
of the qualification of the Notes for sale in any such state or jurisdiction
or the initiating or threatening of any proceeding for such purpose.
i) 1934 Act Filings.
The Company, during the period when the Prospectus is required to be delivered
under the 1933 Act, will file promptly all documents required to be filed with
the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
j) Stand-Off Agreement.
Between the date of any Terms Agreement and the Settlement Date with respect
to such Terms Agreement, the Company will not, without the prior consent of
the applicable Agents, which consent shall not be unreasonably withheld, offer
or sell in the United States, or enter into any agreement to sell in the
United States, any debt securities of the Company (other than the Notes) that
are substantially similar to the Notes except as may otherwise be provided in
any such Terms Agreement.
k) Annual Reports.
The Company will furnish to the Agents, at the earliest time the Company makes
the same available to others, copies of its annual reports and other financial
reports furnished or made available to the public generally.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to solicit offers to purchase the Notes as
agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of an Agent to purchase Notes
pursuant to a Terms Agreement (or otherwise), will be subject to the accuracy
of the representations and warranties on the part of the Company herein and to
the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the
<PAGE> 10
performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
a) Legal Opinions.
On the date the program commences (the "Commencement Date"), the Agents shall
have received the following legal opinions, dated as of the date hereof and in
form and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Paul A. Immerman, Esq., Senior
Counsel to the Company, to the effect that:
(i) Each of the Company and the Bank has been duly incorporated and is an
existing corporation or banking corporation, respectively, in good standing
under the laws of the State of New York or Delaware, as the case may be, and
the Company has the corporate power and authority to own its properties and
conduct its business as described in the Prospectus as supplemented or
amended.
(ii) Each Indenture has been duly authorized, executed and delivered by
the Company and duly qualified under the 1939 Act and constitutes a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(iii) The Notes have been duly authorized and established in conformity
with the applicable Indenture, and when the terms of a particular Note and of
its issuance and sale have been duly authorized and established by all
necessary corporate action in conformity with such Indenture and such Note has
been duly prepared, executed, authenticated and issued in accordance with such
Indenture and delivered against payment in accordance with this Agreement,
such Note will constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(iv) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company on or prior to the date of such
opinion under the Federal laws of the United States and the laws of the State
of New York for the issuance, sale and delivery of the Notes by the Company to
or through the Agent, in accordance with this Agreement, have been obtained or
made (except that such counsel need express no opinion with respect to state
securities laws).
(v) This Agreement has been duly authorized, executed and delivered by the
Company.
(vi) The execution and delivery by the Company of the Indentures and this
Agreement do not, and the completion, execution and issuance of each
<PAGE> 11
particular Note in accordance with the applicable Indenture, the sale by the
Company of such Note in accordance with this Agreement and the performance by
the Company of its obligations under the Indentures, this Agreement and such
Note will not violate the Company's Certificate of Incorporation or By-Laws,
in each case as in effect at the date of such opinion, or violate any existing
Federal law of the United States or law of the State of New York (except that
such counsel need express no opinion with respect to federal or state
securities laws, other antifraud laws, fraudulent transfer laws, the Employee
Retirement Income Security Act of 1974 and laws that restrict transactions
between U.S. persons and citizens of foreign countries or other jurisdictions
and related laws, and insofar as performance by the Company of its obligations
under such Indenture, this Agreement and the Notes is concerned, such counsel
need express no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights).
(vii) Each part of the Registration Statement, when such part became
effective, and the Prospectus (other than the financial statements and other
financial and statistical data therein, as to which such counsel need express
no opinion) appeared on their face to be appropriately responsive, in all
material respects relevant to the offering of the Notes, to the requirements
of the 1933 Act, the 1939 Act and the applicable rules and regulations of the
SEC thereunder; further, nothing which came to such counsel's attention in the
course of such counsel's review (as described in such opinion) has caused such
counsel to believe that, insofar as relevant to the offering of the Notes, any
part of the Registration Statement, when such part became effective, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (other than the financial statements and
other financial and statistical data therein, as to which such counsel need
express no opinion) contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; and such counsel does not know of any litigation or
any governmental proceeding instituted or threatened against the Company or
the Bank that would be required to be disclosed in the Prospectus and is not
so disclosed, and does not know of any documents that are required to be filed
as exhibits to the Registration Statement and are not so filed or of any
documents that are required to be summarized in the Prospectus and are not so
summarized. Such counsel may state that such counsel 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 Senior Debt Securities and Senior
Subordinated Debt Securities" and "Plan of Distribution" in the Prospectus and
under the captions "Description of Medium-Term Notes" and "Plan of
Distribution of Medium-Term Notes" in the Prospectus Supplement insofar as
they relate to provisions of documents therein described and that such counsel
does not express any opinion or belief as to the financial statements or other
<PAGE> 12
financial data contained in the Registration Statement or the Prospectus or as
to the statement of the eligibility of the Trustees.
In providing such opinion, such counsel may assume, in connection with the
opinion set forth in paragraph (iii) above, that at the time of issuance, sale
and delivery of each particular Note the authorization of the Notes will not
have been modified or rescinded and, with respect to each Note, that such Note
will conform to the draft form of the Notes examined by such counsel. Such
counsel may also assume in connection with such opinion that at the time of
the issuance, sale and delivery of each particular Note there will not have
occurred any change in law affecting the validity, legally binding character
or enforceability of such Note and that the issuance, sale and delivery of
such Note, all of the terms of such Note and the performance by the Company of
its obligations thereunder will comply with applicable law and with each
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company and will not result in a default under or a
breach of any agreement or instrument then binding upon the Company. Such
counsel may state in rendering the opinion set forth in paragraph (iii) above
that, as of the date of such opinion, a judgment for money in an action based
on Notes denominated in foreign currencies or currency units in a Federal or
state court in the United States ordinarily would be enforced in the United
States only in United States dollars and that the date used to determine the
rate of conversion of the foreign currency or currency unit in which a
particular Note is denominated into United States dollars will depend upon
various factors, including which court renders the judgment. In the case of a
Note denominated in a foreign currency, a state court in the State of New York
rendering a judgment on such Note would be required under Section 27 of the
New York Judiciary Law to render such judgment in the foreign currency in
which the Note is denominated, and such judgment would be converted into
United States dollars at the exchange rate prevailing on the date of entry of
the judgment.
(2) Opinion of Counsel to the Agent. The opinion of Winthrop, Stimson,
Putnam & Roberts, counsel to the Agents, with respect to such matters as the
Agents may reasonably request.
b) Officer's Certificate.
On the Commencement Date the Agents shall have received a certificate of an
officer of the Company satisfactory to the Agents, dated as of the date
hereof, as to the accuracy of the representations and warranties of the
Company herein, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the date hereof and as to such other
matters as the Agents may reasonably request, and that no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the SEC.
c) Comfort Letter.
On the Commencement Date and on each Settlement Date relating to a Terms
Agreement if called for by such Terms Agreement, the Agents shall have
received letters from the Company's independent public accountants, dated as
of the date hereof or such Settlement Date and in form and substance
satisfactory to the Agents, to the effect set forth in Annex II.
<PAGE> 13
d) Other Documents and Opinions.
At the Commencement Date and at each Settlement Date with respect to any
applicable Terms Agreement, your counsel shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Notes as herein
contemplated; and all proceedings taken by the Company in connection with the
issuance and sale of the Notes as herein contemplated shall be satisfactory in
form and substance to your counsel.
e) Conditions to Purchase.
Prior to such solicitation or purchase, as the case may be, other than a
purchase by an Agent pursuant to a Terms Agreement:
(i) there shall not have occurred any change in the capital stock or long-
term-debt of the Company or any of its subsidiaries or any change or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that, in the
judgment of the Agents after consultation with the Company, is material and
adverse and that makes it, in the judgment of the Agents, impracticable to
market the Notes or deliver Notes to the purchaser on the terms and in the
manner contemplated by the Prospectus, as so amended or supplemented; and
(ii) there shall not have occurred any downgrading in the rating of any
debt securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating);
except, in each case described in paragraph (i) or (ii) above, as disclosed to
the Agents in writing by the Company prior to such solicitation or, in the
case of a purchaser of Notes, as disclosed to the relevant purchaser before
the offer to purchase such Notes was made.
The Company acknowledges that the Agents shall not have any duty or obligation
to exercise the judgment described in paragraphs (i) and (ii) above on behalf
of any purchaser of Notes other than the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
applicable Agents, any applicable Terms Agreement) may be terminated by the
Agents by notice to the Company at any time, and any such termination shall be
without liability of any party to any other party, except that the covenant
under Section 4(g) hereof, the indemnity and contribution agreement set forth
in Section 8 hereof, the provisions concerning payment of expenses under
Section 9 hereof, the provisions concerning the representations, warranties
and agreements to survive delivery of Section 10 hereof, Section 13 hereof and
the provisions set forth under "Parties" of Section 14 hereof shall remain in
effect.
<PAGE> 14
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through the Agents as agents shall be made by the
Company to the Agents for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agents shall promptly notify the Company and deliver
such Note to the Company, and, if an Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds to such Agent. If
such failure shall have occurred for any reason other than default by such
Agent to perform its obligations under this Agreement, the Company will
reimburse such Agent on an equitable basis for its loss of the use of funds
during the period when the funds were credited to the account of the Company.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
a) Reaffirmation of Representations and Warranties.
Each acceptance by it of an offer for the purchase of Notes, and each delivery
of Notes to an Agent pursuant to a Terms Agreement, shall be deemed to be an
affirmation that the representations and warranties of the Company contained
in this Agreement and in any certificate theretofore delivered to an Agent
pursuant hereto are true and correct at the time of such acceptance or sale,
as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the purchaser
or his agent, or to an Agent, of the Note or Notes relating to such acceptance
or sale, as the case may be, as though made at and as of each such time (and
it is understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended and supplemented to each
such time).
b) Subsequent Delivery of Certificates.
Each time that the Registration Statement or the Prospectus shall be amended
or supplemented (other than by (i) a Pricing Supplement, (ii) an amendment or
supplement providing solely for a change in the interest rates of Notes or a
change in the principal amount of Notes remaining to be sold or similar
changes or (iii) an amendment or supplement relating exclusively to an
offering of securities other than the Notes) or there is filed with the SEC
any document incorporated by reference in the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of securities
other than the Notes) or, if required pursuant to the terms of a Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished to the Agents forthwith a
certificate dated the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment or the date of such
sale, as the case may be, in form satisfactory to the Agents to the effect
that the statements contained in the certificate referred to in Section 5(b)
hereof that were last furnished to the Agents are true and correct at the time
of such amendment, supplement, filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of
the same tenor as the certificate referred to in Section 5(b) hereof, modified
as necessary to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such certificate;
provided, however, that if the Agents have suspended solicitation of purchases
of the Notes in their capacity as agents pursuant to a request from the
Company, and the Agents shall not hold any Notes as principal, the Company
shall not be obligated so to furnish the Agents with a certificate or
certificates until such time as
<PAGE> 15
the Company shall determine that the solicitation of purchases of the Notes
should be resumed or shall subsequently enter into a new Terms Agreement with
an Agent.
c) Subsequent Delivery of Legal Opinions.
Each time that the Registration Statement or the Prospectus shall be amended
or supplemented (other than by (i) a Pricing Supplement, (ii) an amendment or
supplement (A) providing solely for a change in the interest rates of the
Notes or a change in the principal amount of Notes remaining to be sold or
similar changes or (B) setting forth solely financial statements or other
financial information as of and for a fiscal quarter or (iii) an amendment or
supplement that relates exclusively to an offering of securities other than
the Notes) or there is filed with the SEC any document incorporated by
reference in the Prospectus (other than any Current Report on Form 8-K (i)
relating exclusively to the issuance of securities other than the Notes or
(ii) setting forth solely financial statements or other financial information
as of and for a fiscal quarter) or, if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished forthwith to the Agents and
counsel to the Agents a written opinion of Paul A. Immerman, Esq., Senior
Counsel to the Company, or other counsel satisfactory to the Agents, dated the
date of delivery of such opinion, in form satisfactory to the Agents, of the
same tenor as the opinion referred to in Section 5(a)(1) hereof, and such
other opinions provided for in Section 5(a) hereof as the Agents may request,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
opinion, or, in lieu of such opinion, counsel last furnishing such opinion to
the Agents shall furnish the Agents with a letter to the effect that the
Agents may rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements in such
last opinion, shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance); provided, however, that if the Agents shall have
suspended solicitation of purchases of the Notes in their capacity as agents
pursuant to a request from the Company, and the Agents shall not hold any
Notes as principal, the Company shall not be obligated so to furnish the
Agents with an opinion or opinions until such time as the Company shall
determine that the solicitation of purchases of the Notes should be resumed or
shall subsequently enter into a new Terms Agreement with an Agent.
d) Subsequent Delivery of Comfort Letters.
Each time that the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information or there is filed
with the SEC any document incorporated by reference in the Prospectus that
contains additional financial information or, if so indicated in the
applicable Terms Agreement, the Company sells Notes to an Agent pursuant to a
Terms Agreement, the Company shall cause the Company's independent public
accountants forthwith to furnish the Agents a letter, dated the date of filing
of such amendment, supplement or document with the SEC, or the date of such
sale, as the case may be, in form satisfactory to the Agents, of the same
tenor as the portions of the letter referred to in clauses (i) and (ii) of
Annex II hereto but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clauses (iii)
and (iv) of Annex II hereto with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter,
<PAGE> 16
the Company's independent public accountants may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the reasonable
judgment of the Agents, such letter should cover such other information;
provided further, however, that if the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant to
a request from the Company, and the Agents shall not hold any Notes as
principal, the Company shall not be obligated so to furnish the Agents with a
letter or letters until such time as the Company shall determine that the
solicitation of purchases of the Notes should be resumed or shall subsequently
enter into a new Terms Agreement with the Agents in which such letter or
letters are required.
SECTION 8. Indemnity and Contribution.
a) The Company will indemnify and hold harmless the Agents against any losses,
claims, damages or liabilities to which the Agents may become subject, under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any other prospectus relating to the
Notes, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Agents for any legal or other expenses
reasonably incurred, as incurred, by the Agents in connection with
investigating or defending any such action or claim; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any other prospectus relating to the
Notes, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use therein.
b) The Agents will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any other prospectus relating to the
Notes, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any other prospectus
relating to the Notes, or any amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company by
the Agents expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred, as incurred, by the Company in
connection with investigating or defending any such action or claim.
<PAGE> 17
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 except to the extent that it has been
prejudiced in any material respect by such failure or from any liability that
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.
d) If the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Agents on the other from the offering
of the Notes to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above and such indemnifying party was prejudiced in a material respect by such
failure, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Agents on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Agents on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total commissions or discounts
received by the Agents in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Agents and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Agents 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 that 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
<PAGE> 18
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), the Agents shall not be
required to contribute any amount in excess of the amount by which the total
public offering price at which the Notes purchased by or through it were sold
exceeds the amount of any damages that the Agents have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
e) The obligations of the Company under this Section 8 shall be in addition to
any liability that the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls an Agent
within the meaning of the 1933 Act; and the obligations of the Agents, under
this Section 8 shall be in addition to any liability that the Agents may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls
the Company within the meaning of the 1933 Act.
SECTION 9. Payment of Expenses.
The Company covenants and agrees with the Agents that, unless otherwise
agreed, the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Notes under the 1933 Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to you and dealers; (ii) the fees, disbursements and expenses of
counsel to the Agents incurred in connection with the establishment of the
program relating to the Notes and incurred from time to time in connection
with the transactions contemplated hereby; (iii) the cost of typing and
reproducing this Agreement, any Terms Agreement, the Indentures, any Blue Sky
Memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Notes; (iv) all expenses in connection with the
qualification of the Notes for offering and sale under state securities laws
as provided in Section 4(h) hereof, including the reasonable fees and
disbursements of counsel for the Agents incurred from time to time in
connection with the transactions contemplated hereby; (v) any fees charged by
securities rating services for rating the Notes; (vi) any filing fees incident
to any required review by the National Association of Securities Dealers,
Inc., of the terms of the sale of the Notes; (vii) the cost of preparing the
Notes; (viii) the fees and expenses of the Trustees and any agent of the
Trustees and the fees and disbursements of counsel for the Trustees in
connection with the Indentures and the Notes; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder that are not
otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section and Section 8 hereof, the
Agents will pay all of its own costs and expenses, except as otherwise
provided in this Section 9, including transfer taxes on resale of any of the
Notes by them, and any advertising expenses connected with any offers they may
make.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this Agreement or
any Terms Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on
<PAGE> 19
behalf of the Agents or any controlling person of the Agents, or by or
on behalf of the Company, and shall survive each delivery of and payment for
any of the Notes.
SECTION 11. Termination.
a) Termination of this Agreement.
This Agreement (excluding any Terms Agreement) may be terminated for any
reason at any time, either by the Company as to any Agent or Agents or by any
Agent or Agents as to itself or themselves, upon the giving of 30 days'
written notice of such termination to such Agent or Agents or the Company, as
the case may be.
b) Termination of a Terms Agreement.
Each Agent may terminate any Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto: (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus,
the effect of which is in the judgment of the applicable Agent after
consultation with the Company so material and adverse as to make it
impracticable or inadvisable to proceed with the delivery of the Notes to
which such Terms Agreement relates on the terms and in the manner contemplated
in the Prospectus and such Terms Agreement; or (ii) if subsequent to the date
of such Terms Agreement there has occurred any of the following: (A) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (B) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities or a banking moratorium by the relevant authority in the country
or countries of origin of any foreign currency or currencies in which the
Notes are denominated or payable; or (C) any outbreak or escalation of
hostilities or other national or international calamity or crisis, in each
case involving the United States, the effect of which shall be such as to make
it, in the judgment of the applicable Agent or Agents after consultation with
the Company, impracticable to market the Notes or enforce contracts for the
sale of the Notes to which such Terms Agreement relates on the terms and in
the manner contemplated in the Prospectus and such Terms Agreement; or (iii)
if subsequent to the date of such Terms Agreement there has occurred any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating).
c) General.
In the event of any such termination with respect to an Agent, neither the
Company nor such Agent will have any liability to the other, except that (i)
such Agent shall be entitled to any commission earned in accordance with the
third paragraph of Section 3(a) hereof, (ii) if at the time of termination (a)
such Agent shall own any Notes purchased pursuant to a Terms Agreement with
the intention of reselling them or (b) an offer to purchase any of the Notes
has been accepted by the Company but the time of delivery to the purchaser or
his agent of the Note or Notes relating thereto has not occurred, the
covenants set forth in Sections 4 and 7 hereof shall remain in effect until
such Notes are so resold or delivered, as the case may be, and
<PAGE> 20
(iii) the covenant set forth in Section 4(g) hereof, the indemnity and
contribution agreements set forth in Section 8 hereof, the provisions of
Section 9 hereof and the provisions of Sections 10, 13 and 14 hereof shall
remain in effect.
SECTION 12. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, an d any such notice shall be effective when
received at the address specified below.
If to the Company:
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Attention: Secretary
Facsimile Number: (212) 635-1798
If to the Agents:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Money Market Origination Department
Facsimile: 212-902-0683
Merrill Lynch, & Co.,
Merrill Lynch,Pierce, Fenner & Smith Incorporated
World Financial Center
New York, New York 10281
Attention: MTN Product Management
Facsimile: 212-449-2234
Morgan Stanley & Co. Incorporated
1585 Broadway - Second Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Facsimile: 212-761-0780
With a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway - Twenty-Ninth Floor
New York, New York 10036
Attention: Peter Cooper
Facsimile: 212-761-0260
<PAGE> 21
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Attention: Ted Hamilton
Facsimile: 212-713-2233
Salomon Smith Barney Inc.
Medium Term Note Department
7 World Trade Center
New York, New York 10048
Facsimile: 212-783-2274
BNY Capital Markets, Inc.
32 Old Slip, 15th Floor
New York, New York 10286
Attention: Mark Swintek
Facsimile:212-495-1014
and
BNY Capital Markets, Inc.
One Wall Street, 18th Floor
New York, New York 10286
Attention: John M. Roy
Facsimile: 212-635-8525
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 12.
SECTION 13. Governing Law.
This Agreement and any Terms Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 14. Parties.
This Agreement and any Terms Agreement shall inure to the benefit of and be
binding upon the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement or any Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Section 8 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any Terms Agreement or any provision herein
or therein contained. This Agreement and any Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the parties hereto and respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes shall be deemed to be a successor by reason merely of
such purchase.
SECTION 15. Counterparts.
This Agreement may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
<PAGE> 22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company two counterparts hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Agent and the Company in accordance with its terms.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By:
--------------------------
Name:
Title:
Accepted as of the date set forth above:
GOLDMAN, SACHS & CO.
By:
--------------------------
Name:
Title:
MERRILL LYNCH & CO., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED
By:
--------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
--------------------------
Name:
Title:
PAINEWEBBER INCORPORATED
By:
--------------------------
Name:
Title:
<PAGE> 23
SALOMON SMITH BARNEY INC.
By:
--------------------------
Name:
Title:
BNY CAPITAL MARKETS, INC.
By:
--------------------------
Name:
Title:
<PAGE> 24
Schedule A
If a sale is made to retail investors:
Term Commission Rates
---- ----------------
From 9 months but less than 1 year 0.20%
From 1 year but less than 2 years 0.40
From 2 years but less than 3 years 0.60
From 3 years but less than 4 years 0.75
From 4 years but less than 5 years 1.00
From 5 years but less than 6 years 1.50
From 6 years but less than 7 years 2.00
From 7 Years but less than 10 years 2.25
From 10 years but less than 15 years 2.50
From 15 years but less than 20 years 2.75
From 20 years but less than 30* years 3.00
- ---------------------
* With respect to each Note with a term in excess of 30 years from the date of
issue, the commission payable to the Agent with respect to each such Note sold
as a result of a solicitation made by the Agent will be agreed to by the
Company and the Agent at the time of such sale.
<PAGE> 25
If a sale is made to institutional investors:
Term Commission Rates
---- ----------------
From 9 months but less than 1 year 125%
From I year but less than 18 months 150
From 18 moths but less than 2 years 200
From 2 years but less than 3 years 250
From 3 years but less than 4 years 350
From 4 years but less than 5 years 450
From 5 years but less than 6 years 500
From 6 years but less than 7 years 550
From 7 Years but less than 10 years 600
From 10 years but less than 15 years 625
From 15 years but less than 20 years 700
From 20 years but less than 30* years 750
- -----------------------
* With respect to each Note with a term in excess of 30 years from the date of
issue, the commission payable to the Agent with respect to each such Note sold
as a result of a solicitation made by the Agent will be agreed to by the
Company and the Agent at the time of such sale.
<PAGE> 26
ANNEX I
-------
THE BANK OF NEW YORK COMPANY, INC.
(A New York corporation)
Medium-Term Notes
TERMS AGREEMENT
-----------, --
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Attention:
Re: Distribution Agreement dated July 30, 1999
The undersigned agrees to purchase the following principal amount of
[Senior][Senior Subordinated] Notes with the terms indicated below:
The Notes will be the Company's [Senior][Senior Subordinated] Medium-Term
Notes Series [C] [D].
$ -------------- (or principal amount of other Specified Currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Regular Floating Rate Note, Floating Rate/Fixed Note or Inverse
Floating Rate Note:
Base Rate or Rates:
Initial Interest Rate:
Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Month(s), if any:
Interest Payment Month(s), if any:
Index Maturity:
<PAGE> 27
Fixed Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Rate Commencement Date, if any:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Interest Payment Date:
Designated LIBOR Page, if any:
Designated CMT Telerate Page, if any:
LIBOR Currency, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Initial Repayment Date:
If Renewable:
Renewal Date:
Final Maturity Date:
If Extendible:
Initial Maturity Date:
Final Maturity Date:
Date of Maturity:
Purchase Price: --%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
OID Terms:
Additional Terms:
Exceptions, if any, to Section 4(j) of the Distribution Agreement:
<PAGE> 28
[The certificate referred to in Section 7(b) of the Distribution Agreement,
the opinions referred to in Section 7(c) of the Distribution Agreement and the
accountants' letter[s] referred to in Section 7(d) of the Distribution
Agreement shall be delivered as a condition to settlement.]
[NAME OF AGENT]
By:
----------------------------
Accepted:
THE BANK OF NEW YORK COMPANY, INC.
By:
---------------
Title:
<PAGE> 29
ANNEX II
--------
Pursuant to Section 5(c) of the Distribution Agreement, the Company's
independent public accountants shall provide a comfort letter to the effect
that:
(i) They are independent public accountants with respect to the Company and
its subsidiaries within the meaning of the 1933 Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and any
supplementary financial information and schedules examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act or the 1934 Act, as applicable, and
the published rules and regulations thereunder; and they have made a review of
the interim financial information of the Company and its subsidiaries for the
periods specified in such letter in accordance with standards established by
the American Institute of Certified Public Accountants;
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a limited review of the unaudited consolidated financial
statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited information with respect to the annual consolidated
results of operations and financial position for fiscal years that was
included or incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year does not agree with the corresponding
amounts in the audited consolidated financial statements for such fiscal years
that 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 that 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 that were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for the last three years;
(C) the unaudited consolidated financial statements included or
incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and
<PAGE> 30
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 that 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 not 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
that the Prospectus discloses have occurred or may occur or that 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 that the Prospectus discloses have
occurred or may occur or that are described in such letter;
(iv) In addition to the examination referred to in their reports included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books inquiries and other procedures referred to in
subparagraph (iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information specified by the Agent that are derived from the general
accounting records of the Company and its subsidiaries and that appear in the
Prospectus (excluding documents incorporated by reference), in exhibits to the
Registration Statement specified by the Agent or in documents incorporated by
<PAGE> 31
reference in the Prospectus specified by the Agent, and have compared certain
of such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
<PAGE> 1
EXHIBIT 4.1
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR
NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL
AGENCY.
IF THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE FOR THE
DEPOSITORY TRUST COMPANY, THEN THE FOLLOWING LEGEND SHALL APPLY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "ORIGINAL YIELD TO MATURITY" AND
"INITIAL SHORT ACCRUAL PERIOD OID" (COMPUTED UNDER THE EXACT METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT RULES.
CUSIP:
REGISTERED REGISTERED
No. FXR $
THE BANK OF NEW YORK COMPANY, INC.
[SENIOR MEDIUM-TERM NOTE SERIES C]
[SENIOR SUBORDINATED MEDIUM-TERM NOTE SERIES D]
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
<PAGE> 2
HOLDER'S OPTIONAL
REPAYMENT DATE(S): TOTAL AMOUNT OF OID: ORIGINAL YIELD TO
MATURITY:
INITIAL SHORT ACCRUAL ISSUE PRICE: OTHER PROVISIONS:
PERIOD OID:
[ ] IF BOX IS CHECKED, THE NOTE IS AN AMORTIZING NOTE AND INFORMATION
REGARDING AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS PROVIDED
IN AN ADDENDUM.
[ ] IF BOX IS CHECKED, THE NOTE IS A RENEWABLE NOTE OR AN EXTENDIBLE NOTE
AND INFORMATION REGARDING RENEWAL DATE, NEW MATURITY DATE, FINAL MATURITY DATE
OR EXTENSION PERIOD, AS APPLICABLE, AND ANY OTHER APPROPRIATE INFORMATION IS
PROVIDED IN AN ADDENDUM.
The Bank of New York Company, Inc., a New York corporation (the "Company,
which term includes any successor corporation under the Indenture hereinafter
referred to"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of [ ] on the Stated Maturity Date
specified above (except to the extent redeemed or repaid prior to the Stated
Maturity Date), and to pay interest thereon at the Interest Rate per annum
specified above, until the principal hereof is paid or duly made available for
payment, on the [ ] day of each [ ] and [ ] (each an "Interest
Payment Date") in each year commencing on the first Interest Payment Date next
succeeding the Original Issue Date specified above, unless the Original Issue
Date occurs between a Regular Record Date, as defined below, and the next
succeeding Interest Payment Date or on an Interest Payment Date, in which case
commencing on the second Interest Payment Date succeeding the Original Issue
Date, to the registered holder of this Note on the Regular Record Date with
respect to such second Interest Payment Date, and on the Stated Maturity Date
(or any Redemption Date as defined below or any Holder's Optional Repayment
Date with respect to which such option has been exercised, each such Stated
Maturity Date, Redemption Date and Holder's Optional Repayment Date being
herein referred to as a "Maturity Date" with respect to the principal payable
on such date). Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid or duly provided for, from the Original Issue
Date specified above until the principal hereof has been paid or duly made
available for payment. If the Maturity Date or an Interest Payment Date falls
on a day which is not a Business Day as defined below, principal, premium, if
any, or interest payable with respect to such Maturity Date or Interest
Payment Date will be paid on the next succeeding Business Day with the same
force and effect as if made on such Maturity Date or Interest Payment Date, as
the case may be, and no interest on such payment shall accrue for the period
from and after such Maturity Date or Interest Payment Date, as the case may
be. The interest so
<PAGE> 3
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, subject to certain exceptions, be paid to the Person in whose name
this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
fifteenth calendar day (whether or not a Business Day) next preceding such
Interest Payment Date; provided, however, that interest payable on at Maturity
will be payable to the Person to whom the principal hereof shall be payable.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Note (or one or more Predecessor
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
(referred to below), notice whereof shall be given to the Holder of this Note
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner, all as more fully provided in the Indenture.
As used herein, "Business Day" means any day other than a Saturday,
Sunday, legal holiday or other day on which banking institutions in The City
of New York are authorized or required by law, regulation or executive order
to close.
Payment of the principal of, premium, if any, and interest due on this
Note will be made in immediately available funds at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, The City
of New York in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest on any Interest Payment Date other
than the Maturity Date may be made at the option of the Company by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register. A Holder of not less than $10,000,000
aggregate principal amount of the Notes having the same Interest Payment Dates
may by written notice to the Paying and Authenticating Agent (referred to
below) at its principal corporate trust office in The City of New York (or at
such other address as the Company shall give notice in writing) on or before
the Regular Record Date preceding an Interest Payment Date, arrange to have
the interest payable on all Notes held by such Holder on such Interest Payment
Date, and all subsequent Interest Payment Dates until written notice to the
contrary is given to the Paying and Authenticating Agent, made by wire
transfer of immediately available funds to a designated account maintained at
a bank in The City of New York (or other bank consented to by the Company) as
the holder of such Notes shall have designated; provided that such bank has
appropriate facilities therefor.
[Insert for Senior Subordinated Medium-Term Note] This Note is one of a
duly authorized series of securities of the Company (hereinafter called the
"Securities") issued and to be issued in one or more series under an Indenture
dated as of October 1, 1993 (herein called the "Indenture") between the
Company and Chase Manhattan Trust Company National Association, as successor
Trustee
<PAGE> 4
(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, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Senior Subordinated Medium-Term Notes Series D(the "Notes") and of the terms
upon which the Notes are, and are to be, authenticated and delivered. The
Notes are limited in aggregate principal amount of $895,000,000. The Bank of
New York, acting through its corporate trust offices in The City of New York
is the initial paying agent for the payment of interest and principal of the
Notes (the "Paying Agent"); and The Bank of New York acting through its
corporate trust offices in The City of New York is the authenticating agent
for the Notes (the "Paying and Authenticating Agent"). The Notes may bear
different Original Issue Dates, mature at different times, bear interest at
different rates and vary in such other ways as are provided in the Indenture.
[Insert for Senior Medium-Term Notes] This Note is one of a duly
authorized series of securities of the Company (hereinafter called the
"Securities") issued and to be issued in one or more series under an Indenture
dated as of July 18, 1991 (herein called the "Indenture") between the Company
and Bankers Trust Company, 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, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Senior Medium-Term Notes Series C (the "Notes")
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. The Notes are limited in aggregate principal amount of
$895,000,000. The Bank of New York, acting through its corporate trust
offices in The City of New York is the initial paying agent for the payment of
interest and principal of the Notes (the "Paying Agent"); and The Bank of New
York acting through its corporate trust offices in The City of New York is the
authenticating agent for the Notes (the "Paying and Authenticating Agent").
The Notes may bear different Original Issue Dates, mature at different times,
bear interest at different rates and vary in such other ways as are provided
in the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder on any
Holder's Optional Repayment Date(s), if any, indicated above. If no Holder's
Optional Repayment Dates are set forth above, this Note may not be so repaid
at the option of the Holder hereof prior to the Stated Maturity Date. On any
Holder's Optional Repayment Date this Note shall be repayable in whole or in
part in increments of [$1,000 Insert other minimum denomination] (provided
that any remaining principal hereof shall be at least [$1,000 Insert other
minimum denomination]) at the option of the Holder hereof at a repayment price
equal to 100% of the principal amount to be repaid, together with interest
thereon payable to the date of repayment. For this Note to be repaid in whole
or in part at the option of the Holder hereof, this Note must be received,
with the form entitled "Option to Elect Repayment" below duly completed,
<PAGE> 5
by the Paying and Authenticating Agent at the principal corporate trust office
of The Bank of New York in The City of New York, or such other address which
the Company shall from time to time notify the Holders of the Notes, not less
than 30 nor more than 60 days prior to the Holders Optional Repayment Date.
Exercise of such repayment option by the Holder hereof shall be irrevocable.
This Note may be redeemed at the option of the Company on any date on and
after the Initial Redemption Date, if any, specified above (the "Redemption
Date"). If no Initial Redemption Date is set forth above, this Note may not
be redeemed at the option of the Company prior to the Stated Maturity Date.
On and after the Initial Redemption Date, if any, this Note may be redeemed at
any time in whole or from time to time in part in increments of [$1,000 Insert
other minimum denomination] (provided that any remaining principal hereof
shall be at least [$1,000 Insert other minimum denomination]) at the option of
the Company at the applicable Redemption Price (as defined below) together
with interest thereon payable to the Redemption Date, on notice given to the
Holder not less than 30 nor more than 60 days prior to the Redemption Date.
In the event of redemption of this Note in part only, a new Note for the
unredeemed portion hereof shall be issued in the name of the Holder hereof
upon the surrender hereof.
Notices to the holders of the Notes with respect to redemption as
provided above will be mailed first class mail, postage prepaid, to the
holders' addresses listed in the Security Register maintained by the security
registrar not less than 30 nor more than 60 days prior to the Redemption Date.
If this Note is redeemable at the option of the Company, the "Redemption
Price" shall initially be the Initial Redemption Percentage specified above,
of the principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified above, of the principal amount to be redeemed
until the Redemption Price is 100% of such principal amount.
The "Amortized Face Amount" of an Original Issue Discount Note shall be
the amount equal to (i) the Issue Price set forth above plus (ii) that portion
of the difference between the Issue Price and the principal amount of such
Note that has accrued at the Original Yield to Maturity (computed in
accordance with generally accepted United States bond yield computation
principles) by the date of redemption or repayment, as calculated by the
Calculation Agent, but in no event shall the Amortized Face Amount of an
Original Issue Discount Note exceed its principal amount.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Date or the date of Maturity, as the case may
be. Interest payments for this Note will be computed and paid on the basis of
a 360-day year of twelve 30-day months.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due
<PAGE> 6
and payable in the manner and with the effect provided in the Indenture.
[Insert if this Note is a Senior Subordinated Medium-Term Note -- Payment of
the principal of the Notes may be accelerated only in the case of certain
events involving the bankruptcy, insolvency or reorganization of the Company.
There is no right of acceleration of payment of the Senior Subordinated
Medium-Term Notes in the case of a default in the performance of any covenant
of the Company, including payment of principal or interest.]
[Insert if this Note is a Senior Subordinated Medium-Term Note -- The
indebtedness evidenced by the Notes is, to the extent provided in the
Indenture, subordinated and subject in right of the payment in full of the
principal of (and premium, if any) and the interest on all Senior
Indebtedness, as defined in the Indenture, and this security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Note, by accepting the same, agrees that each holder of Senior Indebtedness,
whether created or acquired before or after the issuance of the Notes, shall
be deemed conclusively to have relied on such provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness. The
Indenture also provides that if, upon the occurrence of certain events of
bankruptcy or insolvency relating to the Company, there remains, after giving
effect to such subordination provisions, any amount of cash, property or
securities available for payment or distribution in respect of Securities of
this series(as defined in the Indenture, "Excesss Proceeds"), and if, at such
time, any Entitled Person (as defined in the Indenture) has not received
payment in full of all amounts due or to become due on or in respect of Other
Financial Obligations (as defined in the Indenture), then such Excess Proceeds
shall first be applied to pay or provide for the payment in full of such Other
Financial Obligations before any payment or distribution may be made in
respect of Notes. This Note is also issued subject to the provisions of the
Indenture regarding payments to Entitled Persons in respect of Other Financial
Obligations. Each Holder of this Note, by accepting the same, agrees to he
bound by the provisions of the Indenture described herein and authorizes and
directs the Trustee to take such action on his behalf as may be necessary or
appropriate to acknowledge or effectuate the subordination of this Note and
payment of Excess Proceeds as provided in the Indenture and appoints the
Trustee his attorney-in-fact for any and all such purposes.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of each series, to
waive compliance by the Company with certain
<PAGE> 7
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon all future Holders
of this Note and of any Note issued upon the registration of transfer hereof
or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and
interest on this Note, at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security
Register of the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the
principle of and any premium and interest on this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder hereof or by such Holder's attorney duly authorized in writing and
thereupon one or more new Notes and of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum
denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000 and, unless otherwise specified on the face hereof, shall
be denominated in U.S. dollars. As provided in the Indenture, and subject to
certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of (and
premium, if any) or the interest on this Note, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture or
any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Company or any
successor
<PAGE> 8
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
made and to be performed in such State.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Trustee under the Indenture by the manual signature of one of
its authorized officers, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
<APGE> 9
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and its corporate seal to be imprinted
hereon.
Dated:
THE BANK OF NEW YORK COMPANY, INC.
By:
--------------------------
[SEAL]
Attest:
- ----------------------------
CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
[Insert for Senior Medium-Term Notes] Bankers Trust Company, as Trustee
[Insert for Senior Subordinated Medium-Term Notes] Chase Manhattan Trust
Company National Association, as Trustee
By: The Bank of New York
As Authenticating Agent
By:
----------------------
Authorized Officer
<PAGE> 10
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms
at a price equal to the principal amount hereof together with interest to the
repayment date, to the undersigned, at
- ------------------------------------------------------------------
- ------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, this Note must be received at the corporate
trust office of The Bank of New York, in The City of New York, or at such
other place or places which the Company shall from time to time notify the
Holder of this Note, not less than 30 nor more than 60 days prior to the
Holder's Optional Repayment Date, if any, specified above, with this "Option
to Elect Repayment" form duly completed. Exercise of such repayment option by
the holder hereof shall be irrevocable. In the event of repayment of this
Note in part only, a new Note or Notes for the amount of the unpaid portion
hereof shall be issued in the name of the holder hereof upon the cancellation
hereof.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be in increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(each of which shall be [$1,000 Insert other minimum denomination] or an
integral multiple of [$1,000 Insert other minimum denomination] in excess of
[$1,000 Insert other minimum denomination]) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the absence of any
such specification, one such Note will be issued for the portion not being
repaid).
$
----------------------- ---------------------------------
NOTICE: The signature on this
Date
--------------- Option to Elect Repayment must
correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.
<PAGE> 11
ABBREVIATIONS
The following abbreviations, when used in the inscription on this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- Custodian
-------------- --------------
(Minor)
Under Uniform Gifts to Minors Act
---------------------------------
(State)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
<PAGE> 12
--------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Other
Identifying Number of Assignee:
- -----------------------------
- -----------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE:
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- -----------------------------------------------------------------
the within Note and all rights thereunder, and does hereby irrevocably
constitute and appoint
- -----------------------------------------------------------------
attorney to transfer said Note on the books of the Company, with full power
of substitution in the premises.
Dated:
--------------------------- --------------------------
Signature Guaranteed:
--------------------------
--------------------------
NOTICE: The signature(s) to this assignment must correspond with the name as
written upon the within instrument in every particular, without alteration or
enlargement, or any change whatever.
SIGNATURE GUARANTEED:
---------------------------------
NOTICE: The signature(s) must be guaranteed by an eligible guarantor
institution (e.g., banks, securities brokers or dealers, credit unions,
national securities exchanges and savings associations) which is a member of
or participant in a signature guarantee program recognized by the Securities
registrar pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.
<PAGE> 1
EXHIBIT 4.2
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR
NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL
AGENCY.
IF THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE FOR THE
DEPOSITORY TRUST COMPANY, THEN THE FOLLOWING LEGEND SHALL APPLY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "ORIGINAL YIELD TO MATURITY" AND
"INITIAL SHORT ACCRUAL PERIOD OID" (COMPUTED UNDER THE EXACT METHOD) SET FORTH
BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT RULES.
CUSIP:
REGISTERED REGISTERED
No. FLR $
THE BANK OF NEW YORK COMPANY, INC.
[SENIOR MEDIUM-TERM NOTE SERIES C]
[SENIOR SUBORDINATED MEDIUM-TERM NOTE SERIES D]
(Floating Rate)
INTEREST RATE : ORIGINAL ISSUE STATED MATURITY ISSUE PRICE
BASIS: DATE: DATE:
<PAGE> 2
INDEX MATURITY INITIAL INTEREST INTEREST RATE INTEREST PAYMENT
RATE: DATES:
SPREAD INITIAL INTEREST INTEREST RESET CALCULATION
RESET DATE: DATES: AGENT:
SPREAD INITIAL MAXIMUM MINIMUM INTEREST
MULTIPLIER: REDEMPTION INTEREST RATE: RATE:
DATE:
TAX INITIAL FIXED RATE FIXED INTEREST
REDEMPTION: REDEMPTION ICOMMENCEMENT RATE:
PERCENTAGE: DATE:
Yes No
HOLDER'S INDEX ORIGINAL YIELD DESIGNATED LIBOR
OPTIONAL MATURITY: TO MATURITY: PAGE:
REPAYMENT
DATE(S):
INITIAL SHORT TOTAL AMOUNT DESIGNATED CMT DESIGNATED CMT
ACCRUAL PERIOD OF OID: MATURITY INDEX: TELERATE PAGE:
OID:
OTHER
PROVISIONS:
INTEREST CALCULATION:
[ ] REGULAR FLOATING RATE NOTE
[ ] FLOATING RATE/FIXED RATE NOTE
[ ] INVERSE FLOATING RATE NOTE
<PAGE> 3
[ ] IF BOX IS CHECKED, THIS NOTE IS AN AMORTIZING NOTE AND INFORMATION
REGARDING AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS PROVIDED
IN AN ADDENDUM.
[ ] IF BOX IS CHECKED, THIS NOTE IS A RENEWABLE NOTE OR AN EXTENDIBLE NOTE
AND INFORMATION REGARDING RENEWAL DATE, NEW MATURITY DATE, FINAL MATURITY DATE
AND EXTENSION PERIOD, AS APPLICABLE, AND ANY OTHER APPROPRIATE TERMS, IS
PROVIDED IN AN ADDENDUM.
The Bank of New York Company, Inc., a New York corporation (the
"Company, which term includes any successor corporation under the Indenture
hereinafter referred to"), for value received, hereby promises to pay to Cede
& Co., or registered assigns, the principal sum of [ ] on
the Stated Maturity Date specified above (except to the extent redeemed or
repaid prior to the Stated Maturity Date), and to pay interest thereon at a
rate per annum equal to the Initial Interest Rate specified above until the
Initial Interest Reset Date or Fixed Rate Commencement Date specified above,
if any, and thereafter at a rate determined in accordance with the provisions
set forth below, depending upon the Interest Rate Basis specified above, until
the principal hereof is paid or duly made available for payment. The Company
will pay interest on the Interest Payment Dates specified above, commencing
with the first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Stated Maturity Date (or any Redemption Date as
defined below or any Holder's Optional Repayment Date specified above, if any,
with respect to which such option has been exercised, each such Stated
Maturity Date, Redemption Date and Holder's Optional Repayment Date being
hereinafter referred to as a "Maturity Date" with respect to the principal
repayable on such date); provided, however, that if the Original Issue Date
occurs between a Regular Record Date, as defined below, and the next
succeeding Interest Payment Date or on an Interest Payment Date, interest
payments will commence on the second Interest Payment Date next succeeding the
Original Issue Date, to the registered holder of this Note on the Regular
Record Date with respect to such second Interest Payment Date; and provided,
further, that if an Interest Payment Date (other than an Interest Payment Date
that occurs on any Maturity Date) would fall on a day that is not a Business
Day, as defined below, such Interest Payment Date shall be the next day that
is a Business Day, except in the case that the Interest Rate Basis is LIBOR,
if such next Business Day falls in the next succeeding calendar month, such
Interest Payment Date will be the next preceding day that is a Business Day.
If any Maturity Date of this Note should fall on a day that is not a Business
Day, the payment of interest, principal or premium, if any, due on such date
shall be made on the next day that is a Business Day and no additional
interest on such amounts shall accrue from and after such Maturity Date.
Interest payable on this Note on any Interest Payment Date will include
interest accrued from the Original Issue Date, or the most recent date for
which interest has been paid or duly provided for, to, but excluding, such
Interest Payment Date or the Maturity Date, as the case may be; provided
however that in the case of Notes that reset daily or weekly, interest
payments on each Interest Payment Date will be the amount of interest accrued
from but excluding the Regular Record Date through which interest has been
paid or duly provided for (or from and
<PAGE> 4
including the Original Issue Date if no interest has been paid or duly
provided for) to and including the Regular Record Date next preceding the
applicable Interest Payment Date, except that the interest payment due on the
Maturity Date will include interest accrued to but excluding such date. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions, be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the date 15 calendar days prior to an Interest Payment
Date (whether or not a Business Day) (the "Regular Record Date"); provided,
however, that interest payable at Maturity will be payable to the Person to
whom the principal hereof shall be payable. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee (referred to below), notice whereof shall
be given to the Holder of this Note not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner,
all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest due on this
Note will be made in immediately available funds at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, The City
of New York, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest on any Interest Payment Date other
than the Maturity Date may be made at the option of the Company by check
mailed to the address of Person entitled thereto as such address shall appear
in the Security Register. A Holder of not less than $10,000,000 aggregate
principal amount of the Notes having the same Interest Payment Dates may by
written notice to the Paying and Authenticating Agent (referred to below) at
its principal corporate trust office in The City of New York (or at such other
address as the Company shall give notice in writing) on or before the Regular
Record Date preceding an Interest Payment Date, arrange to have the interest
payable on all Notes held by such Holder on such Interest Payment Date, and
all subsequent Interest Payment Dates until written notice to the contrary is
given to the Paying and Authenticating Agent, made by wire transfer of
immediately available funds to a designated account maintained at a bank in
The City of New York (or other bank consented to by the Company) as the holder
of such Notes shall have designated; provided that such bank has appropriate
facilities therefor.
[Insert for Senior Subordinated Medium Term-Note Series D] This Note is
one of a duly authorized issue of securities of the Company (hereinafter
called the "Securities") issued and to be issued in one or more series under
an Indenture dated as of October 1, 1993 (herein called the "Indenture")
between the Company and Chase Manhattan Trust Company National Association, as
Successor 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, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Senior Subordinated Medium-Term Notes Series D
(the "Notes") and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Notes are limited in aggregate principal
amount to $895,000,000. The Bank of New York, acting through its corporate
trust offices in The City of New York is the initial paying agent for the
payment of interest and principal of the Notes (the "Paying Agent"); and The
Bank of New York is the
<PAGE> 5
authenticating agent for the Notes (the "Paying and Authenticating Agent").
The Notes may bear different Original Issue Dates, mature at different times,
bear interest at different rates and vary in such other ways as are provided
in the Indenture.
[Insert for Senior Medium Term Notes Series C] This Note is one of a duly
authorized series of securities of the Company (hereinafter called the
"Securities") issued and to be issued in one or more series under an Indenture
dated as of July 18, 1991 (herein called the "Indenture") between the Company
and Bankers Trust Company, 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, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Senior Medium-Term Notes Series C (the "Notes")
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. The Notes are limited in aggregate principal amount to
$895,000,000. The Bank of New York, acting through its corporate trust
offices in The City of New York is the initial paying agent for the payment of
interest and principal of the Senior Medium-Term Notes (the "Paying Agent");
and The Bank of New York is the authenticating agent for the Notes (the
"Paying and Authenticating Agent"). The Notes may bear different Original
Issue Dates, mature at different times, bear interest at different rates and
vary in such other ways as are provided in the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder on the
Holder's Optional Repayment Date(s), if any, indicated above. If no Holder's
Optional Repayment Dates are set forth above, this Note may not be so repaid
at the option of the Holder hereof prior to the Stated Maturity Date. On any
Holder's Optional Repayment Date, this Note shall be repayable in whole or in
part in increments of [$1,000 Insert other minimum denomination] (provided
that any remaining principal hereof shall be at least [$1,000 Insert other
minimum denomination] ) at the option of the Holder hereof at a repayment
price equal to 100% of the principal amount to be repaid, together with
interest thereon payable to the date of repayment. For this Note to be repaid
in whole or in part at the option of the Holder hereof, this Note must be
received, with the form entitled "Option to Elect Repayment" below duly
completed, by the Paying and Authenticating Agent at the principal corporate
trust office of The Bank of New York in The City of New York or such other
address which the Company shall from time to time notify the Holders of the
Notes, not less than 30 nor more than 60 days prior to a Holder's Optional
Repayment Date. Exercise of such repayment option by the Holder hereof shall
be irrevocable.
This Note may be redeemed at the option of the Company on any date on and
after the Initial Redemption Date, if any, specified above (the "Redemption
Date"). If no Initial Redemption Date is set forth above, this Note may not
be redeemed at the option of the Company prior to the Stated Maturity Date.
On and after the Initial Redemption Date, if any, this Note may be redeemed at
any time in whole or from time to time in part in increments of [$1,000 Insert
other minimum denomination] (provided that any remaining principal hereof
shall be at least [$1,000 Insert other minimum denomination]) at the option of
the Company at the applicable Redemption Price (as defined below) together
with interest thereon payable to the Redemption Date, on notice given to the
Holder not less than 30 nor more than 60 days prior to the Redemption Date.
In the event of
<PAGE> 6
redemption of this Note in part only, a new Note for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the surrender
hereof.
Notices to the holders of the Notes with respect to redemption as
provided above will be mailed first class mail, postage prepaid, to the
holders' addresses listed in the register maintained by the Registrar not less
than 30 nor more than 60 days prior to the Redemption Date.
If this Note is redeemable at the option of the Company, the "Redemption
Price" shall initially be the Initial Redemption Percentage, specified above,
of the principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified above, of the principal amount to be redeemed
until the Redemption Price is 100% of such principal amount.
Accrued interest hereon shall be an amount calculated by multiplying the
principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
from the Original Issue Date or from but excluding the last date for which
interest shall have been paid, as the case may be, to the date for which
accrued interest is being calculated. The interest factor for each such day
shall be computed by dividing the interest rate applicable to such day by 360
or, in the case of Notes having the Treasury Rate or CMT Rate as their
Interest Rate Basis, by the actual number of days in the year.
Except as described below, this Note will bear interest at the rate
determined by reference to the Interest Rate Basis specified above (i) plus or
minus the Spread, if any, specified above and/or (ii) multiplied by the Spread
Multiplier, if any, specified above. The interest rate in effect on each day
shall be (a) if such day is an Interest Rate Reset Date specified above, the
interest rate with respect to the Interest Determination Date (as defined
below) pertaining to such Interest Rate Reset Date or (b) if such day is not
an Interest Rate Reset Date, the interest rate with respect to the Interest
Determination Date pertaining to the next preceding Interest Rate Reset Date,
subject to the Maximum or Minimum Interest Rate specified above, provided that
the interest rate in effect from the Original Issue Date to the Initial
Interest Rate Reset Date shall be the Initial Interest Rate; provided further
that the Notes will not reset after the Fixed Rate Commencement Date, if any.
If any Interest Rate Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next day that
is a Business Day, except that if the Interest Rate Basis specified above is
LIBOR, if such Business Day is in the next succeeding calendar month, such
Interest Rate Reset Date shall be the immediately preceding Business Day. If
a treasury bill auction will be held on a day that would otherwise be an
Interest Reset Date with respect to the Treasury Rate, then such Interest
Reset Date shall be the Business Day following such auction date.
The Interest Determination Date with respect to the Certificate of
Deposit Rate (the "CD Rate"), Commercial Paper Rate, Federal Funds Rate, CMT
Rate and Prime Rate will be the second Business Day preceding the Interest
Reset Date. The Interest Determination Date with respect to LIBOR shall be
the second London Banking Day (as defined below) preceding an Interest Rate
Reset Date. The Interest Determination Date with respect to the Eleventh
District Cost of Funds Rate shall be the last Business Day of the month
immediately preceding the applicable Interest Reset Date in which the Federal
Home Loan Bank of San Francisco publishes the Index (as
<PAGE> 7
hereinafter defined). The Interest Determination Date with respect to the
Treasury Rate shall be the day of the week in which such Interest Rate Reset
Date falls on which Treasury bills of the Index Maturity specified above
normally would be auctioned; provided, however, that if as a result of a legal
holiday an auction is held on the Friday of the week preceding the Interest
Rate Reset Date, the related Interest Determination Date shall be such
preceding Friday. The Interest Determination Date with respect to a Note the
interest rate of which is determined by two or more Interest Rate Bases shall
be the second Business Day next preceding the applicable Interest Reset Date
on which each Interest Rate Basis is determinable. Each Interest Rate Basis
shall be determined as of such date, and the applicable interest rate will
take effect on the applicable Interest Reset Date.
The "Calculation Date" pertaining to any Interest Determination Date
shall be the earlier of (i) the tenth calendar day after such Interest
Determination Date or, if such day is not a Business Day, the next succeeding
Business Day and (ii) the Business Day preceding the applicable Interest
Payment Date or the date of Maturity, as the case may be.
All percentages resulting from any calculation on the Notes will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation on the Notes will be
rounded to the nearest cent (with one-half cent being rounded upward).
As used herein, "Business Day" means (i) any day other than a Saturday,
Sunday, legal holiday or other day on which banking institutions in The City
of New York are authorized or required by law, regulation or executive order
to; provided that in the case where the Interest Rate Basis is LIBOR, such day
is also a London Banking Day. "London Banking Day" means a day on which
dealings in the applicable LIBOR currency are transacted in the London
interbank market. For notes having a specified currency other than U.S.
dollars only (other than Notes denominated in EUROs), any day that, in the
Principal Financial Center (as defined below) of the country of the specified
currency, is not a day on which banking institutions generally are authorized
or obligated by law to close; and for notes denominated in EUROs, a day on
which the Trans-European Automated Real-Time Gross Settlement Express Transfer
System is open.
The interest rate that will become effective on each subsequent Interest
Reset Date will be determined by the Calculation Agent (calculated with
reference to the Base Rate or Rates and the Spread and/or Spread Multiplier,
if any) as follows (such determination, in the absence of manifest error, to
be binding upon all parties).
CD Rate
"CD Rate" means, with respect to an Interest Determination Date relating
to a CD Rate Note (the "CD Rate Interest Determination Date"), the rate on
such CD Rate Interest Determination Date for negotiable certificates of
deposit having the Index Maturity specified above, as such rate is published
by the Board of Governors of the Federal Reserve System (the "Federal Reserve
Board") in "Statistical Release H.15(519), Selected Interest Rates," or any
successor publication of the Federal Reserve Board ("H.15(519)"), under the
heading "CDs (Secondary Market)." If H.15(519)
<PAGE> 8
is not so published by 3:00 p.m., New York City time, on the Calculation Date
pertaining to such CD Rate Interest Determination Date, the CD Rate will be
the rate on such CD Rate Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified above, as published by
the Federal Reserve Bank of New York in its daily statistical release
"Composite 3:30 P.M. Quotations for U.S. Government Securities" ("Composite
Quotations") under the heading "Certificates of Deposit." If by 3:00 p.m., New
York City time, on such Calculation Date such rate is not yet published in
Composite Quotations, the CD Rate for such CD Rate Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean of
the secondary market offered rates as of 10:00 a.m., New York City time, on
such CD Rate Interest Determination Date, of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York
selected by the Calculation Agent for negotiable certificates of deposit in
denominations of $5,000,000 of major United States money center banks with a
remaining maturity closest to the Index Maturity specified above. However, if
such dealers are not so quoting such rates, the CD Rate for such CD Rate
Interest Determination Date will be the CD Rate then in effect on such CD Rate
Interest Determination Date.
Commercial Paper Rate
"Commercial Paper Rate" means, with respect to an Interest Determination
Date relating to a Commercial Paper Note (a "Commercial Paper Rate Interest
Determination Date"), the Money Market Yield (as hereinafter defined) of the
rate on such Commercial Paper Rate Interest Determination Date for commercial
paper having the Index Maturity specified above as published in H.15(519)
under the caption "Commercial Paper-Non Financial." If such rate is not so
published by 3:00 p.m., New York City time, on the Calculation Date pertaining
to such Commercial Paper Rate Interest Determination Date, the Commercial
Paper Rate will be the Money Market Yield on such Commercial Paper Rate
Interest Determination Date of the rate for commercial paper of the Index
Maturity specified above as published in Composite Quotations under the
heading "Commercial Paper." If by 3:00 p.m., New York City time, on such
Calculation Date such rate is not yet published in Composite Quotations, the
Commercial Paper Rate for such Commercial Paper Rate Interest Determination
Date will be calculated by the Calculation Agent and will be the Money Market
Yield of the arithmetic mean of the offered rates, as of 11:00 a.m., New York
City time, on such Commercial Paper Rate Interest Determination Date of three
leading dealers of commercial paper in The City of New York (which may include
the Calculation Agent or its affiliates) selected by the Calculation Agent for
commercial paper of the Index Maturity specified above placed for an
industrial issuer whose bond rating is "AA" or the equivalent by a nationally
recognized securities rating agency. However, if such dealers are not so
quoting such rates, the Commercial Paper Rate for such Commercial Paper Rate
Interest Determination Date will be the Commercial Paper Rate then in effect
on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" will be a yield calculated in accordance with the
following formula:
Money Market Yield = D x 360 x 100
-------------
360-(D x M)
<PAGE> 9
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
LIBOR
"LIBOR" means the rate determined by the Calculation Agent in accordance
with the following provisions:
(i) With respect to an Interest Determination Date relating to a LIBOR
Note (a "LIBOR Interest Determination Date"), LIBOR will be "LIBOR Telerate"
unless "LIBOR Reuters" is specified above. "LIBOR Telerate" is the rate for
deposits in the LIBOR Currency (as defined below) having the Index Maturity
designated above that appears on the Designated LIBOR Page (as defined below)
specified above as of 11:00 a.m. London time, on that LIBOR Interest
Determination Date. "LIBOR Reuters" is that rate which is the arithmetic mean
of the offered rates (unless the specified Designated LIBOR Page by its terms
provides only for a single rate, in which case such single rate shall be used)
for deposits in the LIBOR Currency having the Index Maturity designated above
that appear on the Designated LIBOR Page specified above as of 11:00 a.m.
London time, on that LIBOR Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is required) on
such Designated LIBOR Page. If LIBOR cannot be determined under this clause
(i), LIBOR in respect of the related LIBOR Interest Determination Date will be
determined as if the parties had specified the rate described in clause (ii)
below.
(ii) With respect to a LIBOR Interest Determination Date on which the
applicable LIBOR rate cannot be determined under clause (i) above, the
Calculation Agent will request the principal London offices of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered quotation
for deposits in the LIBOR Currency for the period of the Index Maturity
designated above to prime banks in the London interbank market commencing on
the applicable Interest Reset Date at approximately 11:00 a.m., London time,
on such LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such LIBOR Currency in such market
at such time. If at least two such quotations are provided, LIBOR determined
on such LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are provided, LIBOR for such
LIBOR Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 a.m. (or such other time specified above), in
the applicable Principal Financial Center (as defined below), on such LIBOR
Interest Determination Date by three major banks in such Principal Financial
Center selected by the Calculation Agent for loans in the LIBOR Currency to
leading European banks, having the Index Maturity designated above commencing
on the applicable Interest Reset Date and in a principal amount that is
representative for a single transaction in such LIBOR Currency in such market
at such time; provided, however, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this sentence,
<PAGE> 10
LIBOR determined on such LIBOR Interest Determination Date will be LIBOR then
in effect on such LIBOR Interest Determination Date.
"LIBOR Currency" means the currency (including composite currencies)
specified above as the currency for which LIBOR shall be calculated. If no
such currency is specified above, the LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Telerate" is
designated above, the display on the Dow Jones Telerate Service for the
purpose of displaying the London interbank offered rates of major banks for
the applicable LIBOR Currency, or (b) if "LIBOR Reuters" is designated above,
the display on the Reuters Monitor Money Rates Service for the purpose of
displaying the London interbank offered rates of major banks for the
applicable LIBOR Currency. If neither LIBOR Telerate nor LIBOR Reuters is
specified above, LIBOR for the applicable LIBOR Currency will be determined as
if LIBOR Telerate (and, if the U.S. dollar is the LIBOR Currency, Page 3750)
had been specified.
"Principal Financial Center" will generally be the capital city of the
country of the specified LIBOR Currency, except that with respect to U.S.
dollars, Australian dollars, Canadian dollars, Deutsche marks, Italian lire
and Swiss francs, the Principal Financial Center shall be The City of New
York, Sydney, Toronto, Frankfurt, Milan and Zurich, respectively.
Federal Funds Rate
"Federal Funds Rate" means, with respect to an Interest Determination
Date relating to a Federal Funds Rate Note (a "Federal Funds Rate Interest
Determination Date"), the rate on such Federal Funds Rate Interest
Determination Date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)." If H.15(519) is not so published by 3:00
p.m., New York City time, on the Calculation Date pertaining to such Federal
Funds Rate Interest Determination Date, the Federal Funds Rate will be the
rate on such Federal Funds Rate Interest Determination Date for Federal Funds
as published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If by 3:00 p.m., New York City time, on such
Calculation Date such rate is not yet published in Composite Quotations, the
Federal Funds Rate for such Federal Funds Rate Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean of
the rates for the last transaction in overnight Federal Funds as of 9:00 a.m.,
New York City time, on such Federal Funds Rate Interest Determination Date
quoted by each of three leading brokers of Federal Funds transactions in The
City of New York selected by the Calculation Agent. However, if fewer than
three such brokers are so quoting such rates, the Federal Funds Rate for such
Federal Funds Rate Interest Determination Date will be the Federal Funds Rate
then in effect on such Federal Funds Rate Interest Determination Date.
Prime Rate
<PAGE> 11
"Prime Rate" means, with respect to an Interest Determination Date
relating to a Prime Rate Note (a "Prime Rate Interest Determination Date"),
the rate set forth on such date in H.15(519) under the heading "Bank Prime
Loan," or if not so published prior to 9:00 a.m., New York City time, on the
Calculation Date pertaining to such Prime Rate Interest Determination Date,
then the Prime Rate will be determined by the Calculation Agent and will be
the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen US PRIME 1 (as defined below) as such
bank's prime rate or base lending rates as in effect for that Prime Rate
Interest Determination Date. If fewer than four such rates but more than one
such rate appear on the Reuters Screen US PRIME 1 for the Prime Rate Interest
Determination Date, the Prime Rate will be determined by the Calculation Agent
and will be the arithmetic mean of the prime rates, quoted on the basis of the
actual number of days in the year divided by a 360-day year, as of the close
of business on such Prime Rate Interest Determination Date by four major money
center banks in The City of New York as selected by the Calculation Agent. If
fewer than two such rates appear on the Reuters Screen US PRIME l, the Prime
Rate will be determined by the Calculation Agent as of the close of business
on the Prime Rate Interest Determination Date, on the basis of the prime
rates, as of the close of business on the Prime Rate Interest Determination
Date, furnished in The City of New York by the appropriate number of
substitute banks or trust companies organized and doing business under the
laws of the United States, or any state thereof, having total equity capital
of at least $500,000,000 and being subject to supervision or examination by
federal or state authority, selected by the Calculation Agent. However, if the
banks so selected are not quoting prime rates, the Prime Rate for such Prime
Rate Interest Determination Date will be the Prime Rate then in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen US PRIME 1" means the display designated as page "US
PRIME 1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the US PRIME 1 page on that service for the purpose of displaying
prime rates or base lending rates of major United States banks).
<PAGE> 12
Treasury Rate
"Treasury Rate" means, with respect to an Interest Determination Date
relating to a Treasury Rate Note (a "Treasury Rate Interest Determination
Date"), the rate for the auction held on such Treasury Rate Interest
Determination Date of direct obligations of the United States ("Treasury
bills") having the Index Maturity specified above, as published in H.15(519)
under the heading "U.S. Government Securities-Treasury bills-auction average
(investment)." If such rate is not published by 3:00 p.m., New York City time,
on the Calculation Date pertaining to such Treasury Rate Interest
Determination Date, the Treasury Rate will be the auction average rate
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) on such Treasury Rate Interest
Determination Date as otherwise announced by the United States Department of
the Treasury. If such rate is not published or reported by 3:00 p.m., New York
City time, on such Calculation Date, or if no such auction is held on such
Treasury Rate Interest Determination Date, then the Treasury Rate for such
Treasury Rate Interest Determination Date will be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 p.m., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers, selected by the Calculation
Agent, for the issue of Treasury bills with a remaining maturity closest to
the Index Maturity specified above. However, if such dealers are not so
quoting such rates, the Treasury Rate for such Treasury Rate Interest
Determination Date will be the Treasury Rate then in effect on such Treasury
Date Interest Determination Date.
CMT Rate
"CMT Rate" means, with respect to an Interest Determination Date relating
to a CMT Rate Note or any Floating Rate Note for which the interest rate is
determined by reference to the CMT Rate (a "CMT Rate Interest Determination
Date"), the rate displayed on the designated CMT Telerate Page under the
caption "Treasury Constant Maturities . . . Federal Reserve Board Release H.15
. . . Mondays approximately 3:45 p.m.," under the column for the Designated
CMT Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the
rate on such CMT Rate Interest Determination Date and (ii) if the Designated
CMT Telerate Page is 7052, the week or the month, as applicable, as specified
above, ended immediately preceding the week in which the related CMT Rate
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 p.m., New York City time, on the
Calculation Date pertaining to such CMT Rate Interest Determination Date, then
the CMT Rate for such CMT Rate Interest Determination Date will be such
Treasury Constant Maturity Rate for the Designated CMT Maturity Index as
published in the relevant H.15(519). If such rate is no longer published, or
if not published by 3:00 p.m., New York City time, on such Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date will be such
Treasury Constant Maturity Rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity Index) for
the CMT Rate Interest Determination Date with respect to such Interest Reset
Date as may then be published by either the Federal Reserve Board or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly
<PAGE> 13
displayed on the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 p.m., New York City
time, on such Calculation Date, then the CMT Rate for the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 p.m., New York City time,
on the CMT Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Referenced Dealer") in The City of New York selected by the
Calculation Agent (from five such Referenced Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct, non-
callable fixed rate obligations of the United States ("Treasury Note") with an
original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent cannot obtain three such Treasury
Note quotations, the CMT Rate for such CMT Rate Interest Determination Date
will be calculated by the Calculation Agent and will be a yield to maturity
based on the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 p.m., New York City time, on the CMT Rate Interest
Determination Date of three Referenced Dealers in The City of New York (from
five such Referenced Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)), for
Treasury Notes with original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term to maturity
closest to the Designated CMT Maturity Index and in an amount of at least
$100,000,000. If three or four (and not five) of such Referenced Dealers are
quoting as described above, then the CMT Rate will be based on the arithmetic
mean of the offer prices obtained and neither the highest nor lowest of such
quotes will be eliminated; provided, however, that if fewer than three
Referenced Dealers selected by the Calculation Agent are quoting as described
herein, the CMT Rate will be the CMT Rate then in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity
as described in the third preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the
Treasury Rate Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated above (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturity as reported in H.15(519). If no such page is
specified above, the Designated CMT Telerate Page shall be 7052, for the most
recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury Securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified above with respect to which the CMT Rate will be calculated. If no
such maturity is specified above, the Designated CMT Maturity Index shall be
two years.
<PAGE> 14
Eleventh District Cost of Funds Rate
"Eleventh District Cost of Funds Rate" means, with respect to an Interest
Determination Date relating to an Eleventh District Cost of Funds Rate Note or
any Floating Rate Note for which the interest rate is determined by reference
to the Eleventh District Cost of Funds Rate (an "Eleventh District Cost of
Funds Rate Interest Determination Date"), the rate equal to the monthly
weighted average cost of funds for the calendar month preceding such Eleventh
District Cost of Funds Rate Interest Determination Date as set forth under the
caption "Eleventh District" on Telerate page 7058 as of 11:00 a.m., San
Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate page 7058 on any
related Eleventh District Cost of Funds Rate Interest Determination Date, the
Eleventh District Cost of Funds Rate for such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month preceding the date of
such announcement. If the FHLB of San Francisco fails to announce such rate
for the calendar month next preceding such Eleventh District Cost of Funds
Rate Interest Determination Date, then the Eleventh District Cost of Funds
Rate for such Eleventh District Cost of Funds Rate Interest Determination Date
will be the Eleventh District Cost of Funds Rate then in effect on such
Eleventh District Cost of Funds Rate Interest Determination Date. "Telerate
Page 7058" means the display on the Dow Jones Telerate Service on such page
(or such other page as may replace such page on that service for the purpose
of displaying the Eleventh District Cost of Funds Rate) for the purpose of
displaying the monthly average cost of funds paid by member institutions of
the Eleventh Federal Home Loan Bank District.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any. The Calculation Agent shall calculate the interest
rate hereon in accordance with the foregoing on or before each Calculation
Date. The interest rate on this Note will in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application.
At the request of the Holder hereof, the Calculation Agent will provide
to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which will become effective on the next Interest
Reset Date.
The "Amortized Face Amount" of an Original Issue Discount Note shall be
the amount equal to (i) the Issue Price set forth above plus (ii) that portion
of the difference between the Issue Price and the principal amount of such
Note that has accrued at the Original Yield to Maturity (computed in
accordance with generally accepted United States bond yield computation
principles) by the date of redemption and repayment, as calculated by the
Calculation Agent, but in no event shall the Amortized Face Amount of an
Original Issue Discount Note exceed its principal amount.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the
<PAGE> 15
Indenture. [Insert if this Note is a Senior Subordinated Medium-Term Note --
Payment of the principal of the Notes may be accelerated only in the case of
certain events involving the bankruptcy, insolvency or reorganization of the
Company. There is no right of acceleration of payment of the Notes in the
case of a default in the performance of any covenant of the Company, including
payment of principal or interest.]
[Insert if this Note is a Senior Subordinated Medium-Term Note -- The
indebtedness evidenced by the Notes is, to the extent provided in the
Indenture, subordinated and subject in right of the payment in full of the
principal of (and premium, if any) and the interest on all Senior
Indebtedness, as defined in the Indenture, and this security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Note, by accepting the same, agrees that each holder of Senior Indebtedness,
whether created or acquired before or after the issuance of the Notes, shall
be deemed conclusively to have relied on such provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness. The
Indenture also provides that if, upon the occurrence of certain events of
bankruptcy or insolvency relating to the Company, there remains, after giving
effect to such subordination provisions, any amount of cash, property or
securities available for payment or distribution in respect of Securities of
this series (as defined in the Indenture, "Excess Proceeds"), and if, at such
time, any Entitled Person (as defined in the Indenture) has not received
payment in full of all amounts due or to become due on or in respect of Other
Financial Obligations (as defined in the Indenture), then such Excess Proceeds
shall first be applied to pay or provide for the payment in full of such Other
Financial Obligations before any payment or distribution may be made in
respect of Notes. This Note is also issued subject to the provisions of the
Indenture regarding payments to Entitled Persons in respect of Other Financial
Obligations. Each Holder of this Note, by accepting the same, agrees to he
bound by the provisions of the Indenture described herein and authorizes and
directs the Trustee to take such action on his behalf as may be necessary or
appropriate to acknowledge or effectuate the subordination of this Note and
payment of Excess Proceeds as provided in the Indenture and appoints the
Trustee his attorney-in-fact for any and all such purposes.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of each series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the
<PAGE> 16
principal of and any premium and interest on this Note, at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security
Register of the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder hereof or by such Holder's attorney duly authorized in writing and
thereupon one or more new Notes and of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum
denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000 and, unless otherwise specified on the face hereof, shall
be denominated in U.S. dollars. As provided in the Indenture, and subject to
certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of (and
premium, if any) or the interest on this Note, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture or
any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Company or of
any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
made and to be performed in such State.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the
Authentication Agent or the Trustee under the Indenture by the manual
signature of one if its authorized officers,
<PAGE> 17
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
[This space left blank intentionally]
<PAGE> 18
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and a facsimile of its corporate seal to
be imprinted hereon.
Dated:
THE BANK OF NEW YORK COMPANY, INC.
By:
-----------------------------
[SEAL]
Attest:
- --------------------------
CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
[For Senior Medium-Term Note] Bankers Trust Company, as Trustee
[For Senior Subordinated Medium-Term Note] Chase Manhattan Trust Company
National Association, as Trustee
By: The Bank of New York
As Authenticating Agent
By:
----------------------
Authorized Signatory
<PAGE> 19
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms
at a price equal to the principal amount hereof together with interest to the
repayment date, to the undersigned, at
- ------------------------------------------------------------------
- ------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid at the option of the holder hereof, this Note
must be received at the corporate trust office of The Bank of New York, in The
City of New York or at such other place or places which the Company shall from
time to time notify the Holder of this Note, not less than 30 nor more than 60
days prior to the Holder's Optional Repayment Date, if any, shown on the face
of this Note, with this "Option to Elect Repayment" form duly completed.
Exercise of such repayment option by the holder hereof shall be irrevocable.
In the event of repayment of this Note in part only, a new Note or Notes for
the amount of the unpaid portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be in increments of [$1,000 Insert
other minimum denomination]) which the Holder elects to have repaid and
specify the denomination or denominations (each of which shall be [$1,000
Insert other minimum denomination] or an integral multiple of [$1,000 Insert
other minimum denomination] in excess of $25,000) of the Notes to be issued to
the Holder for the portion of this Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not being
repaid).
$
-------------------------------- -------------------------------
NOTICE: The signature on this
Date
-------------------------- Option to Elect Repayment must
correspond with the name as written
upon this Note in every particular,
without alteration or enlargement
or any change whatever.
<PAGE> 20
ABBREVIATIONS
The following abbreviations, when used in the inscription on this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT-- Custodian
--------------- ---------------
(Minor)
Under Uniform Gifts to Minors Act
- ----------------------------------
(State)
TEN ENT--as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
<PAGE> 21
- -----------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please Insert Social Security or Other
Identifying Number of Assignee:
- -----------------------------
- -----------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE:
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- -----------------------------------------------------------------
the within Note and all rights thereunder, and does hereby irrevocably
constitute and appoint
- ----------------------
- -----------------------------------------------------------------
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
-------------------- ------------------------
- ---------------------------------
NOTICE: The signature(s) to this assignment must correspond with the name as
written upon the within instrument in every particular, without alteration or
enlargement, or any change whatever.
SIGNATURE GUARANTEED:
------------------------------
NOTICE: The signature(s) must be guaranteed by an eligible guarantor
institution (e.g., banks, securities brokers or dealers, credit unions,
national securities exchanges and savings associations) which is a member of
or participant in a signature guarantee program recognized by the Securities
registrar pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934
<PAGE> 1
EXHIBIT 4.3
THE BANK OF NEW YORK COMPANY, INC.
Officers' Certificate Pursuant to
Sections 201 and 301 of the
Senior Subordinated Indenture
-----------------------------
Pursuant to resolutions of the Board of Directors, dated October 13, 1998
(the "Resolutions"), of The Bank of New York Company, Inc. (the "Company"),
and an Action, dated July 30, 1999 (the "Action"), of an Authorized Officer
(as defined in the Resolutions) of the Company pursuant to the Resolutions and
Sections 201 and 301 of the Senior Subordinated Indenture, dated as of October
1, 1993 (the "Senior Subordinated Indenture"), between the Company and Chase
Manhattan Trust Company National Association, as Successor Trustee (the
"Trustee"), the undersigned certify that the terms of a series of Securities
established pursuant to the Resolutions, the Action and Section 301 of the
Senior Subordinated Indenture shall be as follows (capitalized terms not
defined herein shall have the meanings assigned to them in the Senior
Subordinated Indenture or the Prospectus, dated February 4, 1999, as
supplemented by the Prospectus Supplement, dated July 30, 1999):
(1) The title of the Securities of such series is "Senior Subordinated
Medium-Term Notes Series D" (the "Notes").
(2) The aggregate principal amount of the Notes which may be
authenticated and delivered under the Senior Subordinated Indenture shall be
$895,000,000 (except for
<PAGE> 2
(a) Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Section 304, 305, 306,
906 or 1107 of the Senior Subordinated Indenture (b) any Notes which, pursuant
to Section 303, are deemed never to have been delivered thereunder and (c)
Senior Notes).
(3) The Notes shall mature, and the principal amount thereof shall be
payable as set forth, from time to time, in the Pricing Supplement or Terms
Agreement applicable to each issue of Notes.
(4) The rate at which each Note shall bear interest shall be as set
forth, from time to time, in the Pricing Supplement or Terms Agreement
applicable to each issue of Notes. The date from which each Note shall bear
interest and the dates and basis upon which interest will be paid on each Note
shall be as set forth, from time to time, in the Pricing Supplement or Terms
Agreement applicable to each issue of Notes. Interest shall be payable to the
person in whose name a Note (or any Predecessor Security, as defined in the
Senior Subordinated Indenture) is registered at the close of business on the
"Regular Record Date", as specified in the applicable Pricing Supplement or
Terms Agreement.
(5) Whether the Notes may be redeemed by the Company prior to Maturity
shall be set forth in the applicable Pricing Supplement or Terms Agreement.
<PAGE> 3
(6) Whether the Notes will have the benefit of any sinking fund shall be
set forth in the applicable Pricing Supplement or Terms Agreement.
(7) The Notes will be subject to Section 1402 and 1403 of the Senior
Subordinated Indenture unless otherwise set forth in the Pricing Supplement or
Terms Agreement applicable to each issue of Notes.
(8) The Notes shall be issued initially in the form of one or more
permanent Global Notes (collectively, the "Global Note") and the Depositary
for such Global Note shall initially be The Depository Trust Company (the
"Depositary").
Except as otherwise set forth herein, in the Senior Subordinated
Indenture or in the Global Note, owners of beneficial interests in the Note
evidenced by the Global Note will not be entitled to any rights under the
Senior Subordinated Indenture with respect to the Global Note, and the
Depositary may be treated by the Company, the Trustee, and any agent of the
Company or the Trustee as the owner of the Global Note for all purposes
whatsoever.
The Depositary shall be a clearing agency registered under the Exchange
Act. Initially, the Global Note shall be issued to the Depositary and
registered in the name of Cede & Co., as the nominee of the Depositary.
(9) The Company's obligations under the Notes shall rank pari passu in
right of payment with other Subordinated Debt Securities and with the Existing
Subordinated
<PAGE> 4
Indebtedness, subject to the obligations of the Holder of Notes to pay over
any Excess Proceeds to Entitled Persons in respect of Other Financial
Obligations as provided in the Senior Subordinated Indenture.
(10) The Notes will be substantially in the form of Annex A attached
hereto, with such modifications thereto as may be approved by an Authorized
Officer.
IN WITNESS WHEREOF, the undersigned, hereto duly authorized, have duly
signed, and delivered or caused to be delivered to the Trustee under the
Senior Subordinated Indenture, this Officers' Certificate.
Dated: July 30, 1999
By: /s/ Bruce Van Saun
---------------------
Bruce Van Saun
Senior Executive
Vice President
By: /s/ Phebe C. Miller
---------------------
Phebe C. Miller
Secretary
<PAGE> 1
EXHIBIT 4.4
THE BANK OF NEW YORK COMPANY, INC.
Officers' Certificate Pursuant to
Sections 201 and 301 of the
Senior Indenture
----------------
Pursuant to resolutions of the Board of Directors, dated October 13, 1998
(the "Resolutions"), of The Bank of New York Company, Inc. (the "Company"),
and an Action, dated July 30, 1999 (the "Action"), of an Authorized Officer
(as defined in the Resolutions) of the Company pursuant to the Resolutions and
Sections 201 and 301 of the Senior Indenture, dated as of July 18, 1991 (the
"Senior Indenture"), between the Company and Bankers Trust Company, as Trustee
(the "Trustee"), the undersigned certify that the terms of a series of
Securities established pursuant to the Resolutions, the Action and Section 301
of the Senior Indenture shall be as follows (capitalized terms not defined
herein shall have the meanings assigned to them in the Senior Indenture or the
Prospectus, dated February 4, 1999, as supplemented by the Prospectus
Supplement, dated July 30, 1999):
(1) The title of the Securities of such series is "Senior Medium-Term
Notes Series C" (the "Notes").
(2) The aggregate principal amount of the Notes which may be
authenticated and delivered under the Senior Indenture shall be $895,000,000
(except for (a) Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to
Section 304, 305, 306, 906 or 1107 of the Senior Indenture (b) any Notes
which, pursuant to Section
<PAGE> 2
303, are deemed never to have been delivered thereunder and (c) Senior
Subordinated Notes).
(3) The Notes shall mature, and the principal amount thereof shall be
payable as set forth, from time to time, in the Pricing Supplement or Terms
Agreement applicable to each issue of Notes.
(4) The rate at which each Note shall bear interest shall be as set
forth, from time to time, in the Pricing Supplement or Terms Agreement
applicable to each issue of Notes. The date from which each Note shall bear
interest and the dates and basis upon which interest will be paid on each Note
shall be as set forth, from time to time, in the Pricing Supplement or Terms
Agreement applicable to each issue of Notes. Interest shall be payable to the
person in whose name a Note (or any Predecessor Security, as defined in the
Senior Indenture) is registered at the close of business on the "Regular
Record Date", as specified in the applicable Pricing Supplement or Terms
Agreement.
(5) Whether the Notes may be redeemed by the Company prior to Maturity
shall be set forth in the applicable Pricing Supplement or Terms Agreement.
(6) Whether the Notes will have the benefit of any sinking fund shall be
set forth in the applicable Pricing Supplement or Terms Agreement.
(7) The Notes will be subject to Section 1302 and 1303 of the Senior
Indenture unless otherwise set forth in the Pricing Supplement or Terms
Agreement applicable to each issue of Notes.
<PAGE> 3
(8) The Notes shall be issued initially in the form of one or more
permanent Global Notes (collectively, the "Global Note") and the Depositary
for such Global Note shall initially be The Depository Trust Company (the
"Depositary").
Except as otherwise set forth herein, in the Senior Indenture or in the
Global Note, owners of beneficial interests in the Note evidenced by the
Global Note will not be entitled to any rights under the Senior Indenture with
respect to the Global Note, and the Depositary may be treated by the Company,
the Trustee, and any agent of the Company or the Trustee as the owner of the
Global Note for all purposes whatsoever.
The Depositary shall be a clearing agency registered under the Exchange
Act. Initially, the Global Note shall be issued to the Depositary and
registered in the name of Cede & Co., as the nominee of the Depositary.
(9) The Notes will be substantially in the form of Annex A attached
hereto, with such modifications thereto as may be approved by an Authorized
Officer.
IN WITNESS WHEREOF, the undersigned, hereto duly authorized, have duly
signed, and delivered or caused to be delivered to the Trustee under the
Senior Indenture, this Officers' Certificate.
<PAGE> 4
Dated: July 30, 1999
By: /s/ Bruce Van Saun
---------------------
Bruce Van Saun
Senior Executive
Vice President
By: /s/ Phebe C. Miller
---------------------
Phebe C. Miller
Secretary
<PAGE> 1
EXHIBIT 5
THE BANK OF NEW YORK
ONE WALL STREET
NEW YORK, NEW YORK 10286
July 30, 1999
The Bank of New York Company, Inc.
One Wall Street,
New York, New York 10286.
Dear Sirs:
In connection with the registration under the Securities Act of 1933 (the
"Act") of up to $895,000,000 principal amount of Senior Medium-Term Notes
Series C and Senior Subordinated Medium-Term Notes Series D (collectively, the
"Securities") of The Bank of New York Company, Inc., a New York corporation
(the "Company"), the undersigned, as your counsel, has examined such corporate
records, certificates and other documents, and such questions of law, as I
have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, I advise you that, in my opinion,
when the Securities have been duly executed and authenticated in accordance
with the Indentures relating to the Securities and issued and sold as
contemplated in the registration statement (File Nos. 33-61957, 333-70187,
333-70187-01, 333-70187-02, 333-70187-03 and 333-70187-04), the Securities
will constitute valid and legally binding obligations of the Company, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
<PAGE> 2
and similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
The foregoing opinion is limited to the Federal laws of the United
States, and the laws of the State of New York, and I am expressing no opinion
as to the effect of the laws of any other jurisdiction.
I have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by me to be
responsible, and I have assumed that each Indenture has been duly
authorized, executed and delivered by the respective Trustee thereunder,
an assumption which I have not independently verified.
I hereby consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K, dated July 30, 1999 which upon filing
will be incorporated by reference in the Prospectus dated February 4, 1999 as
supplemented by the Prospectus Supplement dated July 30, 1999 relating to the
Securities and to the reference to me under the heading "Legal Opinions" in
the Prospectus Supplement. In giving such consent, I do not thereby admit
that I am in the category of persons whose consent is required under section 7
of the Act.
Very truly yours,
/s/ Paul A. Immerman
Paul A. Immerman
Senior Counsel-The Bank of New York
