<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY , 1999
REG. NOS.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------- BNY CAPITAL IV
BNY CAPITAL V
THE BANK OF NEW YORK COMPANY, INC. BNY CAPITAL VI
BNY CAPITAL VII
(EXACT NAME OF REGISTRANT AS BNY CAPITAL VIII
SPECIFIED IN ITS CHARTER)
(EXACT NAME OF EACH REGISTRANT AS
SPECIFIED IN ITS CERTIFICATE OF
TRUST)
NEW YORK DELAWARE
(STATE OR OTHER JURISDICTION OF
(STATE OR OTHER JURISDICTION INCORPORATION OR ORGANIZATION OF
OFINCORPORATION OR ORGANIZATION) EACH REGISTRANT)
13-2614959 13-7103737
13-7103738
(I.R.S. EMPLOYER IDENTIFICATION 13-7177235
NO.) 13-7177236
13-7177237
(I.R.S. EMPLOYER IDENTIFICATION
NO.)
C/O THE BANK OF NEW YORK COMPANY,
ONE WALL STREET INC.
NEW YORK, NEW YORK 10286 ONE WALL STREET
(212) 495-1784 NEW YORK, NEW YORK 10286
(212) 495-1784
(ADDRESS, INCLUDING ZIP CODE, AND (ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL CODE, OF EACH REGISTRANT'S
EXECUTIVE OFFICES) PRINCIPAL EXECUTIVE OFFICES)
----------------
PHEBE C. MILLER, SECRETARY
THE BANK OF NEW YORK COMPANY, INC.
ONE WALL STREET
NEW YORK, NEW YORK 10286
TEL: (212) 635-1643 FAX: (212) 635-1698
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE OF EACH REGISTRANT)
WITH COPIES TO:
PAUL A. IMMERMAN DAVID P. FALCK
THE BANK OF NEW YORK WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE WALL STREET ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10286 NEW YORK, NEW YORK 10004
TEL: (212) 635-1075 TEL: (212) 858-1000
FAX: (212) 635-1665 FAX: (212) 858-1500
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time to
time after the Registration Statement becomes effective.
----------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
(table and footnotes continued on next page)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
(continued from previous page)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of The
Bank of New York
Company, Inc. (4)..... (1) (2) (2) N/A
- ----------------------------------------------------------------------------------------------
Preferred Stock, no par
value, of The Bank of
New York Company, Inc.
(6)................... (1) (2) (2) N/A
- ----------------------------------------------------------------------------------------------
Class A Preferred Stock,
par value $2.00 per
share, of The Bank of
New York Company, Inc.
(6)................... (1) (2) (2) N/A
- ----------------------------------------------------------------------------------------------
Depositary Shares of The
Bank of New York
Company, Inc.(6)(7)... (1) (2) (2) N/A
- ----------------------------------------------------------------------------------------------
Common Stock of The Bank
of New York Company,
Inc., par value $7.50
per share (6)(8)(9)... (1) (2) (2) N/A
- ----------------------------------------------------------------------------------------------
Trust Preferred
Securities of BNY
Capital IV, BNY Capital
V, BNY Capital VI, BNY
Capital VII and BNY
Capital VIII.......... (1) (2) (2) N/A
- ----------------------------------------------------------------------------------------------
The Bank of New York
Company, Inc.
Guarantees with respect
to Trust Preferred
Securities............ (5) (5) (5) N/A
- ----------------------------------------------------------------------------------------------
Total.................. $1,500,000,000 N/A $1,500,000,000 $417,000(3)
- ----------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
(1) Such indeterminate number or principal amount of Debt Securities (including
Senior Debt Securities, Subordinated Debt Securities and Junior
Subordinated Debt Securities), Preferred Stock, Depositary Shares and
Common Stock of The Bank of New York Company, Inc. (the "Company") and
Trust Preferred Securities (the "Trust Preferred Securities") of BNY
Capital IV, BNY Capital V, BNY Capital VI, BNY Capital VII and BNY Capital
VIII (collectively, the "BNY Trusts") not to exceed $1,500,000,000 maximum
aggregate offering price exclusive of accrued interest and dividends, if
any (collectively, the "Offered Securities").
(2) The proposed maximum offering price per unit will be determined from time
to time in connection with the issuance of the securities registered
hereunder. The maximum aggregate offering price will be such amount in U.S.
dollars or the equivalent thereof in foreign currencies as shall result in
a maximum aggregate offering price for all securities of $1,500,000,000.
Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933 and exclusive of
accrued interest and dividends, if any.
(3) An aggregate amount of $200,000,000 of unsold Debt Securities and Trust
Preferred Securities registered by the Company pursuant to Registration
Statement Nos. 333-40837, 333-40837-01, 333-40837-02, 333-40837-03, which
was declared effective on December 19, 1997, is being carried forward to
this Registration Statement pursuant to Rule 429 under the Securities Act
of 1933. The registration fee of $59,000 associated with such securities
was previously paid. An aggregate amount of $865,000,000 of unsold Debt
Securities, Preferred Stock, Depositary Shares and Common Stock registered
by the Company pursuant to Registration Statement No. 33-61957, which was
declared effective October 19, 1995, is being carried forward to this
Registration Statement pursuant to Rule 429 under the Securities Act of
1933. The registration fee of $298,425 associated with such securities was
previously paid. Accordingly, the proposed maximum offering price of
securities as to which additional registration fees are being paid is
$435,000,000.
(4) Junior Subordinated Debt Securities may be purchased by any of the BNY
Trusts with the proceeds of the sale of the Trust Preferred Securities of
that BNY Trust, together with the proceeds received from the Company for
the common securities to be issued by that BNY Trust to the Company. No
separate consideration will be received for such Junior Subordinated Debt
Securities. Such Junior Subordinated Debt Securities may later be
distributed for no additional consideration to the holders of Trust
Preferred Securities of the applicable BNY Trust upon certain events
described in the applicable Trust Agreement of such BNY Trust.
(5) The Company is also registering pursuant to this Registration Statement the
Company's Guarantees and other obligations that it may have with respect to
Trust Preferred Securities issued by any of the BNY Trusts. Pursuant to
Rule 457(n) under the Securities Act of 1933, no separate consideration
will be received for any such Guarantee or any other such obligations.
(6) Shares of Preferred Stock, Depositary Shares or Common Stock may be
issuable upon conversion of Debt Securities registered hereunder. No
separate consideration will be received for such Preferred Stock,
Depositary Shares or Common Stock.
(7) In the event that the Company elects to offer to the public fractional
interests in shares of Preferred Stock registered hereunder, Depositary
Shares, evidenced by depositary receipts issued pursuant to a deposit
agreement, will be distributed to those persons purchasing such fractional
interests, and the shares of Preferred Stock will be issued to the
depositary under any such agreement.
(8) Shares of Common Stock may be issuable upon conversion of shares of
Preferred Stock registered hereunder. No separate consideration will be
received for such shares of Common Stock.
(9) Includes Preferred Stock Purchase Rights. Prior to the occurrence of
certain events, such Rights will not be exercisable or evidenced separately
from the Common Stock.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE +
+BANK OF NEW YORK COMPANY, INC. MAY NOT SELL THESE SECURITIES UNTIL THE +
+REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS +
+EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS +
+NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER +
+OR SALE IS NOT PERMITTED. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JANUARY 6, 1999
PROSPECTUS
THE BANK OF NEW YORK COMPANY, INC.
SENIOR DEBT SECURITIES
SENIOR SUBORDINATED DEBT SECURITIES
JUNIOR SUBORDINATED DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
BNY CAPITAL IV
BNY CAPITAL V
BNY CAPITAL VI
BNY CAPITAL VII
BNY CAPITAL VIII
TRUST PREFERRED SECURITIES
(fully and unconditionally guaranteed on a subordinated basis, as described
herein, by The Bank of New York Company, Inc.)
THIS PROSPECTUS CONTAINS A GENERAL DESCRIPTION OF THE SECURITIES WHICH THE
BANK OF NEW YORK COMPANY, INC. (THE "COMPANY") MAY OFFER FOR SALE. THE SPECIFIC
TERMS OF THE SECURITIES WILL BE CONTAINED IN ONE OR MORE SUPPLEMENTS TO THIS
PROSPECTUS. READ THE PROSPECTUS AND ANY SUPPLEMENT CAREFULLY BEFORE YOU INVEST.
THE SECURITIES WILL BE EQUITY SECURITIES IN OR UNSECURED OBLIGATIONS OF THE
COMPANY AND WILL NOT BE SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this prospectus is , 199 .
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ITEM PAGE NUMBER
- ---- -----------
<S> <C>
Summary............................................................ 1
Where You Can Find More Information about the Company and the BNY
Trusts............................................................ 2
The Company........................................................ 3
The BNY Trusts..................................................... 4
Certain Regulatory Considerations.................................. 6
Use of Proceeds.................................................... 9
Consolidated Ratios of Earnings to Fixed Charges and Combined Fixed
Charges and Preferred Stock Dividend Requirements................. 9
Description of Senior Debt Securities and Senior Subordinated Debt
Securities........................................................ 9
Description of Junior Subordinated Debt Securities................. 22
Description of Trust Preferred Securities.......................... 36
Description of Guarantees.......................................... 46
Relationship Among the Trust Preferred Securities, the
Corresponding Junior Subordinated Debt Securities, the Expense
Agreement and the Guarantees...................................... 49
Description of Preferred Stock..................................... 51
Description of Depositary Shares................................... 54
Description of Common Stock........................................ 57
Description of Preferred Stock Purchase Rights..................... 58
Book-Entry Issuance................................................ 60
Validity of Securities............................................. 63
Experts............................................................ 63
Plan of Distribution............................................... 64
</TABLE>
<PAGE>
SUMMARY
This document is called a prospectus. This summary highlights selected
information from this prospectus and may not contain all of the information
that is important to you. To understand the terms of the securities, you should
carefully read this prospectus with the attached prospectus supplement. This
prospectus and the prospectus supplement together give the specific terms of
the securities being offered. You should also read the documents referred to
under the heading "Where You Can Find More Information About the Company and
the BNY Trusts" for information on The Bank of New York Company, Inc. and its
financial statements. The Company has its principal offices at One Wall Street,
New York, New York 10286 (telephone: 212-495-1784). Certain capitalized terms
used in this summary are defined elsewhere in this prospectus.
The Bank of New York Company, Inc., a New York corporation (also referred to
as the "Company" or "we"), and BNY Capital IV, BNY Capital V, BNY Capital VI,
BNY Capital VII and BNY Capital VIII, each a statutory business trust formed
under the laws of the State of Delaware (separately each trust is also referred
to as a "BNY Trust" and together as the "BNY Trusts") have filed a registration
statement with the Securities and Exchange Commission (the "SEC") under a
"shelf" registration procedure. Under this procedure the Company and each BNY
Trust may offer and sell from time to time, in one or more series, up to
$1,500,000,000 or the equivalent in one or more foreign currencies, including
composite currencies such as the EURO, of any of the following securities:
(i) unsecured senior debt securities,
(ii) unsecured senior subordinated debt securities,
(iii) unsecured junior subordinated debt securities,
(iv) shares of Preferred Stock, no par value,
(v) shares of Class A Preferred Stock, par value $2.00 per share,
(vi) depositary shares representing Preferred Stock or Class A Preferred
Stock,
(vii) shares of Common Stock, par value $7.50 per share,
(viii) Trust Preferred Securities of a BNY Trust, and
(ix) Guarantees (as defined below) relating to the Trust Preferred
Securities.
The securities may be sold for U.S. dollars, foreign denominated currency or
currency units; amounts payable with respect to any such securities may be
payable in U.S. dollars or foreign denominated currency or currency units.
This prospectus provides you with a general description of the securities we
may offer. Each time we offer securities, we will provide you with a prospectus
supplement that will describe the specific amounts, prices and terms of the
securities being offered. The prospectus supplement may also add, update or
change information contained in this prospectus.
The prospectus supplement will also contain information, where applicable,
about certain United States federal income tax considerations relating to the
securities covered by the prospectus supplement.
The Company and each BNY Trust may sell securities to underwriters who will
sell the securities to the public on terms fixed at the time of sale. In
addition, the securities may be sold, in public or private sales, by the
Company and each BNY Trust directly or through dealers or agents designated
from time to time, which agents may be affiliates of the Company and each BNY
Trust. If the Company, directly or through agents, solicits offers to purchase
the securities, the Company reserves the sole right to accept and, together
with its agents, to reject, in whole or in part, any such offer.
<PAGE>
The prospectus supplement will also set forth with respect to the securities
being sold, the names of the underwriters, dealers or agents, if any, together
with the terms of offering, the compensation of such underwriters and the net
proceeds to the Company and each BNY Trust.
Any underwriters, dealers or agents participating in the offering may be
deemed "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
WHERE YOU CAN FIND MORE INFORMATION ABOUT THE COMPANY AND THE BNY TRUSTS
The Company and each BNY Trust have filed a registration statement with the
SEC. This prospectus is part of the registration statement but the registration
statement also contains additional information and exhibits. The Company also
files proxy statements, annual, quarterly and special reports, and other
information with the SEC. You may read and copy the registration statement and
any reports, proxy statements and other information at the public reference
facilities maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549 and the SEC's Regional Offices in New York, New York and Chicago,
Illinois. You can call the SEC for further information about their public
reference rooms at 1-800-732-0330. Such material is also available at the SEC's
website at "http://www.sec.gov".
The Company's Common Stock ($7.50 Par Value) is listed on the New York Stock
Exchange. Reports and other information concerning the Company can be inspected
at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
The SEC allows the Company to incorporate documents by reference in this
prospectus. This means that by listing or referring to a document which the
Company has filed with the SEC in this prospectus, that document is considered
to be a part of this prospectus and should be read with the same care. When the
Company updates the information contained in documents which have been
incorporated by reference, by making future filings with the SEC, the
information incorporated by reference in this prospectus is considered to be
automatically updated.
The documents listed below are incorporated by reference into this
prospectus:
. The Company's Annual Report on Form 10-K for the year ended December 31,
1997;
. The Company's Quarterly Reports on Form 10-Q, for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
. The Company's Current Reports on Form 8-K, dated January 20, 1998,
February 27, 1998, March 30, 1998, April 20, 1998, April 22, 1998, April
23, 1998, May 20, 1998, July 20, 1998 and October 19, 1998;
. The description of the Company's Common Stock and Preferred Stock
Purchase Rights contained in the Company's Registration Statements on
Form 8-A filed pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including any amendment or report
filed for the purpose of updating such description; and
. Any documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this prospectus and
before the termination of the offering of the securities.
You may request a free copy of any or all of these filings by writing or
telephoning us at the following address:
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Attention: Corporate Secretary
Telephone number (212) 635-1700.
2
<PAGE>
YOU SHOULD ONLY RELY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT OR INCORPORATED BY REFERENCE. THE COMPANY HAS NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION.
No separate financial statements of any BNY Trust are included in this
prospectus. The Company and the BNY Trusts do not consider that such financial
statements would be material to holders of the Trust Preferred Securities
because each BNY Trust is a newly formed special purpose entity, has no
operating history or independent operations and is not engaged in and does not
propose to engage in any activity other than holding as trust assets the
Corresponding Junior Subordinated Debt Securities (as defined below under the
heading "The BNY Trusts") of the Company and issuing the Trust Securities.
Furthermore, taken together, the Company's obligations under each series of
Corresponding Junior Subordinated Debt Securities, the Junior Indenture
pursuant to which the Corresponding Junior Subordinated Debt Securities will be
issued, the related Trust Agreement, the related Expense Agreement and the
related Guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee of payments of Distributions and other amounts due on
the related Trust Preferred Securities of a BNY Trust. For a more detailed
discussion see "The BNY Trusts", "Description of Trust Preferred Securities",
"Description of Junior Subordinated Debt Securities--Corresponding Junior
Subordinated Debentures" and "Description of Guarantees". In addition, the
Company does not expect that any of the BNY Trusts will be filing reports under
the Exchange Act with the Commission.
The Company is not making an offer of its securities in any state or country
where the offer is not permitted. You should not assume that the information in
this prospectus or any prospectus supplement is accurate as of a later date
than the date of this prospectus or any prospectus supplement.
THE COMPANY
GENERAL
The Bank of New York Company, Inc., a New York corporation, is a bank
holding company subject to the Bank Holding Company Act of 1956, as amended
(the "BHC Act"). Our principal wholly-owned banking subsidiary is The Bank of
New York (the "Bank"). We provide a complete range of banking and other
financial services to corporations and individuals worldwide through our core
business: Corporate Banking, Retail Banking, Securities and Other Processing,
Trust, Investment Management and Private Banking and Financial Market Services.
The Bank, which was founded in 1784, was New York's first bank and is the
oldest bank in the country still operating under its original name. The Bank is
a state-chartered New York banking corporation and a member of the Federal
Reserve System (the "Federal Reserve"). The Bank conducts a national and
international wholesale banking business and a retail banking business in the
New York City, New Jersey and Connecticut areas, and provides a comprehensive
range of corporate and personal trust, securities processing and investment
services.
The Company's principal asset and source of income is its investment in the
Bank and it is a legal entity separate and distinct from the Bank and its other
subsidiaries. There are various legal limitations on the extent to which the
Bank and the other subsidiaries can finance or otherwise supply funds to the
Company and certain of its affiliates. See "Certain Regulatory Considerations"
below.
The Company is a non-operating holding company and almost all of the
operating assets of the Company and its consolidated subsidiaries are owned by
such subsidiaries. The Company relies primarily on dividends from such
subsidiaries to meet its obligations. See "Certain Regulatory Considerations--
Dividends".
Because the Company is a holding company, its rights and the rights of its
creditors, including the holders of any Debt Securities, to a share of the
assets of any subsidiary upon the liquidation or recapitalization of the
subsidiary will be subject to the prior claims of the subsidiary's creditors
(including, in the case of the Bank,
3
<PAGE>
and The Bank of New York (Delaware), their depositors), except to the extent
that the Company may itself be a creditor with recognized claims against the
subsidiary.
Accordingly, the Debt Securities will be effectively subordinated to all
existing and future liabilities of the Company's subsidiaries, and holders of
Debt Securities should look only to the assets of the Company for payments on
the Debt Securities.
RECENT DEVELOPMENTS
The Company's Board of Directors has approved a plan to buy back through the
end of 1999 up to 18,000,000 shares of Common Stock. The Company has completed
the repurchase of 30,000,000 shares of Common Stock from a buyback program
announced in December 1997.
THE BNY TRUSTS
Each BNY Trust is a statutory business trust created under Delaware law
pursuant to:
(i) a trust agreement executed by the Company, as Depositor of the BNY
Trust, and the Delaware Trustee (as defined below) of such BNY Trust, and
(ii) a certificate of trust filed with the Delaware Secretary of State.
Each Trust Agreement will be amended and restated in its entirety (each, as
so amended and restated, a "Trust Agreement") substantially in the form filed
as an exhibit to the registration statement of which this prospectus forms a
part.
Each Trust Agreement will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
Each BNY Trust may offer to the public, from time to time, preferred
securities (the "Trust Preferred Securities") representing preferred beneficial
interests in the applicable BNY Trust.
Each BNY Trust exists for the exclusive purposes of:
(i) issuing and selling its Trust Securities,
(ii) using the proceeds from the sale of such Trust Securities to acquire
a series of Corresponding Junior Subordinated Debt Securities issued by the
Company, and
(iii) engaging in only those other activities necessary or incidental
thereto (such as registering the transfer of the Trust Securities).
Each BNY Trust will sell common securities representing common ownership
interests in such BNY Trust to the Company (the "Trust Common Securities") and
Trust Preferred Securities to the public. The Trust Common Securities and the
Trust Preferred Securities together are also referred to as the "Trust
Securities."
When any BNY Trust sells its Trust Preferred Securities to the public it
will use the money it receives together with the money it receives from the
sale of its Trust Common Securities to buy a series of the Company's Junior
Subordinated Debt Securities (the "Corresponding Junior Subordinated Debt
Securities"). The payment terms of the Corresponding Junior Subordinated Debt
Securities will be virtually the same as the terms of that BNY Trust's Trust
Preferred Securities (the "Related Trust Preferred Securities").
Each BNY Trust will own only the applicable series of Corresponding Junior
Subordinated Debt Securities. The only source of funds for each BNY Trust will
be the payments it receives from the Company on the Corresponding Junior
Subordinated Debt Securities. The BNY Trust will use such funds to make cash
payments to holders of the Trust Preferred Securities.
4
<PAGE>
Each BNY Trust will also be a party to an Expense Agreement with the
Company. Under the terms of the Expense Agreement the BNY Trust will have the
right to be reimbursed by the Company for certain expenses.
All of the Trust Common Securities of each BNY Trust will be owned by the
Company. The Trust Common Securities of a BNY Trust will rank equally, and
payments will be made thereon pro rata, with the Trust Preferred Securities of
such BNY Trust, except that upon the occurrence and continuance of an event of
default under a Trust Agreement resulting from an event of default under the
Junior Indenture, the rights of the Company, as holder of the Trust Common
Securities, to payment in respect of Distributions and payments upon
liquidation or redemption will be subordinated to the rights of the holders of
the Trust Preferred Securities of such BNY Trust. See "Description of Trust
Preferred Securities--Subordination of Trust Common Securities". The Company
will acquire Trust Common Securities in an aggregate Liquidation Amount equal
to not less than 3% of the total capital of each BNY Trust.
The prospectus supplement relating to any Trust Preferred Securities will
contain the details of the cumulative preferential cash distributions
("Distributions") to be made periodically to the holders of the Trust Preferred
Securities.
Under certain circumstances the Company may redeem the Corresponding Junior
Subordinated Debt Securities which it sold to a BNY Trust. If it does this, the
BNY Trust will redeem a like amount of the Trust Preferred Securities which it
sold to the public and the Trust Common Securities which it sold to the
Company.
Under certain circumstances the Company may terminate each BNY Trust and
cause the Corresponding Junior Subordinated Debt Securities to be distributed
to the holders of the Related Trust Preferred Securities. If this happens
owners of the Related Trust Preferred Securities will no longer have any
interest in such BNY Trust and will only own the Corresponding Junior
Subordinated Debt Securities.
Generally the Company needs the approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") to redeem the
Corresponding Junior Subordinated Debt Securities or to terminate one or more
BNY Trusts. A more detailed description is provided under the heading
"Description of Trust Preferred Securities--Liquidation Distribution Upon
Termination".
Unless otherwise specified in the applicable prospectus supplement:
. Each BNY Trust has a term of approximately 55 years, but may terminate
earlier as provided in the applicable Trust Agreement.
. Each BNY Trust's business and affairs are conducted by its trustees.
. The trustees are appointed by the Company as holder of the Trust Common
Securities.
. The trustees will be The First National Bank of Chicago, as the Property
Trustee (the "Property Trustee"), First Chicago Delaware Inc., as the
Delaware Trustee (the "Delaware Trustee"), and two individual trustees
(the "Administrative Trustees") who are employees or officers of or
affiliated with the Company (collectively, the "BNY Trust Trustees").
The First National Bank of Chicago, as Property Trustee, will act as
sole indenture trustee under each Trust Agreement for purposes of
compliance with the Trust Indenture Act. The First National Bank of
Chicago will also act as trustee under the Guarantees and the Junior
Indenture. See "Description of Guarantees" and "Description of Junior
Subordinated Debt Securities".
. If an event of default under the Trust Agreement for a BNY Trust has
occurred and is continuing, the holder of the Trust Common Securities of
that BNY Trust, or the holders of a majority in Liquidation Amount of
the Related Trust Preferred Securities, will be entitled to appoint,
remove or replace the Property Trustee or the Delaware Trustee for such
BNY Trust.
. Under all circumstances, only the holder of the Trust Common Securities
has the right to vote to appoint, remove or replace the Administrative
Trustees.
5
<PAGE>
. The duties and obligations of each BNY Trust Trustee are governed by the
applicable Trust Agreement.
. The Company will pay all fees and expenses related to each BNY Trust and
the offering of the Trust Preferred Securities and will pay, directly or
indirectly, all ongoing costs, expenses and liabilities of each BNY
Trust.
The principal executive office of each BNY Trust is One Wall Street, New
York, New York 10286 and its telephone number is (212) 495-1784.
CERTAIN REGULATORY CONSIDERATIONS
DIVIDENDS
The Company is a legal entity separate and distinct from its subsidiaries
(including the Bank), although the principal source of the Company's cash
revenues are payments of interest and dividends from the Bank. There are
various legal and regulatory limitations on the extent to which the Bank can
finance or otherwise supply funds to the Company and certain of its other
affiliates.
The Bank is subject to dividend limitations under the Federal Reserve Act
and the New York Banking Law. Under these statutes, prior regulatory approval
is required for dividends in any year that would exceed the net income of the
Bank for such year combined with retained net income for the prior two years.
Also, the Bank is prohibited from paying a dividend in an amount greater than
"undivided profits then on hand."
Under the first of these two standards, at September 30, 1998 the Bank could
declare dividends of approximately $1,318 million. As of September 30, 1998 the
second standard was less restrictive than the first.
In addition to these statutory tests, the Bank's primary federal regulator
(the Federal Reserve Board) could prohibit a dividend if it determined that the
payment would constitute an unsafe or unsound banking practice. The Federal
Reserve Board has indicated that, generally, dividends should be paid by banks
only to the extent of earnings from continuing operations.
Consistent with its policy regarding bank holding companies serving as a
source of financial strength for their subsidiary banks, the Federal Reserve
Board has indicated that, as a matter of prudent banking, a bank holding
company generally should not maintain a rate of cash dividends unless its net
income available to common stockholders has been sufficient to fully fund the
dividends, and the prospective rate of earnings retention appears consistent
with the bank holding company's capital needs, asset quality and overall
financial condition. In the year ended December 31, 1997, the Company's net
income available to common stockholders was $1,095 million and it paid common
stock dividends totaling $373 million. At September 30, 1998 the Company's net
income available to common stockholders was $879 million and it paid common
stock dividends totaling $298 million.
CAPITAL ADEQUACY
The Federal bank regulators have adopted risk-based capital guidelines for
bank holding companies and banks. The minimum ratio of qualifying total capital
("Total Capital") to risk-weighted assets (including certain off-balance sheet
items) is 8%. At least half of the Total Capital is to consist of common stock,
retained earnings, noncumulative perpetual preferred stock, minority interests
(including trust preferred securities) and, for bank holding companies, a
limited amount of qualifying cumulative perpetual preferred stock, less most
intangibles including goodwill ("Tier 1 Capital"). The remainder ("Tier 2
Capital") may consist of other preferred stock, certain other instruments, and
limited amounts of subordinated debt and the loan and lease loss allowance. Not
more than 25% of qualifying Tier 1 Capital may consist of trust preferred
securities.
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In addition, the Federal Reserve Board has established minimum Leverage
Ratio (Tier 1 Capital to average total assets) guidelines for bank holding
companies and banks. The Federal Reserve Board's guidelines provide for a
minimum Leverage Ratio of 3% for bank holding companies and banks that meet
certain specified criteria, including those having the highest regulatory
rating. All other banking organizations will be required to maintain a Leverage
Ratio of at least 3% plus an additional cushion of 100 to 200 basis points. The
guidelines also provide that banking organizations experiencing internal growth
or making acquisitions will be expected to maintain strong capital positions
substantially above the minimum supervisory levels, without significant
reliance on intangible assets. As of September 30, 1998 the Federal Reserve
Board has not advised the Company of any specific minimum Leverage Ratio
applicable to it.
Federal banking agencies recently have issued regulations that modify
existing rules related to capital ratios with respect to various areas of risk
including interest rate exposure and other market risk. The Company does not
believe that the aggregate impact of these modifications will have a
significant impact on its capital position.
Most banks and bank holding companies (including the Company and the Bank)
operate with capital ratios substantially above the regulatory minimums. The
capital ratios of the Bank are set forth at the end of the subsection headed
"FDICIA."
Certain consolidated ratios of the Company are included in the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1998.
FDICIA
The Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA")
among other things, requires federal banking regulators to take prompt
corrective action in respect of FDIC-insured depository institutions (such as
the Bank) that do not meet minimum capital requirements. FDICIA establishes
five capital tiers: "well capitalized," "adequately capitalized,"
"undercapitalized," "significantly undercapitalized" and "critically
undercapitalized." A depository institution's capital tier will depend upon how
its capital levels compare to various relevant capital measures and certain
other factors, as established by regulation. Under applicable regulations, an
FDIC-insured bank is deemed to be: (i) well capitalized if it maintains a
Leverage Ratio of at least 5%, a Tier 1 Capital Ratio (Tier 1 Capital to risk-
weighted assets and certain off-balance sheet items) of at least 6% and a Total
Capital Ratio of at least 10% and is not subject to an order, written
agreement, capital directive, or prompt corrective action directive to meet and
maintain a specific level for any capital measure; (ii) adequately capitalized
if it maintains a Leverage Ratio of at least 4% (or a Leverage Ratio of at
least 3% if it is rated composite 1 in its most recent report of examination,
subject to appropriate federal banking agency guidelines), a Tier 1 Capital
Ratio of 4% and a Total Capital Ratio of at least 8% and it is not defined to
be well capitalized but meets all of its minimum capital requirements; (iii)
undercapitalized if it has a Leverage Ratio of less than 4% (or a Leverage
Ratio that is less than 3% if it is rated composite 1 in its most recent report
of examination, subject to appropriate federal banking agency guidelines), a
Tier 1 Capital Ratio less than 4% and a Total Capital Ratio less than 10% and
it does not meet the definition of a significantly undercapitalized or
critically undercapitalized institution; (iv) if it has a Leverage Ratio of
less than 3%, a Tier 1 Capital Ratio of less than 3% and a Total Capital Ratio
of less than 10% and it does not meet the definition of critically
undercapitalized; and (v) critically undercapitalized if it maintains a level
of tangible equity capital equal to or less than 2% of total assets. A bank may
be deemed to be in a capitalization category that is lower than is indicated by
its actual capital position if it receives an unsatisfactory examination
rating. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the capital
category in which an institution is classified.
FDICIA generally prohibits an FDIC-insured depository institution from
making any capital distribution (including payment of dividends) or paying any
management fee to its holding company if the depository institution would
thereafter be undercapitalized. Undercapitalized depository institutions are
subject to restrictions on borrowing from the Federal Reserve. In addition,
undercapitalized depository institutions are
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<PAGE>
subject to growth limitations and are required to submit a capital restoration
plan. The federal banking agencies may not accept a capital plan without
determining, among other things, that the plan is based on realistic
assumptions and is likely to succeed in restoring the depository institution's
capital. In addition, for an undercapitalized depository institution's capital
restoration plan to be acceptable, its holding company must guarantee the
capital plan up to an amount equal to the lesser of 5% of the depository
institution's assets at the time it became undercapitalized or the amount of
the capital deficiency when the institution fails to comply with the plan. In
the event of the parent holding company's bankruptcy, such guarantee would take
priority over the parent's general unsecured creditors. If a depository
institution fails to submit an acceptable plan, it is treated as if it is
significantly undercapitalized.
Significantly undercapitalized depository institutions may be subject to a
number of requirements and restrictions, including orders to sell sufficient
voting stock to become adequately capitalized, requirements to reduce total
assets and cessation of receipt of deposits from correspondent banks.
Critically undercapitalized depository institutions are subject to appointment
of a receiver or conservator. A depositary institution that is not well
capitalized is subject to certain limitations on brokered deposits.
At September 30, 1998, the Bank was well capitalized. At September 30, 1998,
the Bank had a Leverage Ratio of 7.05%, a risk-based Total Capital Ratio of
10.75% and a risk-based Tier 1 Capital Ratio of 7.32%.
INTERSTATE BANKING
The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994
("IBBEA") permits bank holding companies, with Federal Reserve Board approval,
to acquire banks located in states other than the bank holding company's home
state without regard to whether the transaction is permitted under state law.
In addition, IBBEA provides that national banks and state banks with different
home states will be permitted to merge across state lines, with the approval of
the appropriate federal banking agency, unless the home state of a
participating bank passed legislation between the date of enactment of IBBEA
and May 31, 1997 expressly prohibiting interstate mergers. Most states,
including New York, New Jersey and Connecticut have not passed legislation
prohibiting interstate mergers. A bank may also establish and operate a de novo
branch in a state in which the bank does not maintain a branch if that state
expressly permits de novo branching. Once a bank has established branches in a
state through an interstate merger transaction, the bank may establish and
acquire additional branches at any location in the state where any bank
involved in the interstate merger transaction could have established or
acquired branches under applicable federal or state law. A bank that has
established a branch in a state through de novo branching may establish and
acquire additional branches in such state in the same manner and to the same
extent as a bank having a branch in such state as a result of an interstate
merger.
TRANSACTIONS WITH AFFILIATES
The Federal Reserve Act limits amounts of, and requires collateral on,
extensions of credit by the Company's insured bank subsidiaries to the Company
and, with certain exceptions, its nonbank affiliates; also, there are
restrictions on the amounts of investment by such banks in stock and other
securities of the Company and such affiliates, and restrictions on the
acceptance of their securities as collateral for loans by such banks.
Extensions of credit by insured bank subsidiaries to each of the Company and
such affiliates are limited to 10% of such bank subsidiary's Tier 1 capital,
and in the aggregate for the Company and all such affiliates to 20%.
PROPOSED LEGISLATION
Various bills have been introduced into the United States Congress that
would revise the current limitations on affiliations between banks and
securities companies, insurance companies and (generally to a limited extent)
other companies. Other proposals to change the laws and regulations governing
the banking industry are frequently introduced in Congress, in the state
legislatures and before the various bank regulatory agencies. The Company
cannot determine the ultimate effect that potential legislation, if enacted, or
implementing regulations, would have upon its financial condition or results of
operations.
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USE OF PROCEEDS
Except as may be set forth in a prospectus supplement, the Company will use
the net proceeds from the sale of the securities offered hereby for general
corporate purposes, including refinancing of existing debt, investments in, or
extensions of credit to, the Bank and, to a lesser extent, other existing or
future subsidiaries. Pending such use, the net proceeds may be temporarily
invested in short-term obligations. The precise amounts and timing of the
application of proceeds used for general corporate purposes will depend upon
funding requirements of the Company and its subsidiaries and the availability
of other funds. The Company expects, on a recurring basis, to engage in
additional financing of a character and amount to be determined as the need
arises.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDEND REQUIREMENTS
For the last five years and the nine-month period ended September 30, 1998,
the consolidated ratios of earnings to fixed charges and earnings to combined
fixed charges and preferred stock dividend requirements of the Company,
computed as set forth below, were as follows:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31
SEPT. 30, ----------------------------
1998 1997 1996 1995 1994 1993
----------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits.... 4.83x 5.12x 4.30x 3.61x 3.75x 3.61x
Including Interest on Deposits.... 2.04 2.06 2.00 1.81 1.94 1.85
Earnings to Combined Fixed Charges
and Preferred Stock Dividend
Requirements:
Excluding Interest on Deposits.... 4.08x 4.35x 4.15x 3.51x 3.58x 3.23x
Including Interest on Deposits.... 1.94 1.97 1.98 1.79 1.91 1.78
</TABLE>
For purposes of computing both the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividend requirements,
earnings represent net income (loss) before extraordinary items plus applicable
income taxes and fixed charges. Fixed charges, excluding interest on deposits,
include interest expense (other than on deposits) and the proportion deemed
representative of the interest factor of rent expense, net of income from
subleases. Fixed charges, including interest on deposits, include all interest
expense and the proportion deemed representative of the interest factor of rent
expense, net of income from subleases. Pretax earnings required for preferred
stock dividends were computed using tax rates for the applicable year.
DESCRIPTION OF SENIOR DEBT SECURITIES AND
SENIOR SUBORDINATED DEBT SECURITIES
SUMMARY
The following description of the terms of the Senior Debt Securities and the
Senior Subordinated Debt Securities (referred to as the "Debt Securities" in
this section only) sets forth certain general terms and provisions. The
particular terms of any offering of Debt Securities will be contained in a
prospectus supplement. The prospectus supplement will describe the:
. specific designation
. aggregate principal amount
. denominations
. maturity
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. premium, if any
. interest rate, if any (which may be fixed or variable)
. dates interest is paid
. terms for redemption at the option of the Company or the holder, if any
. terms for sinking or purchase fund payments, if any
. currency or currencies of denomination and payment, if other than U.S.
dollars
. securities exchanges, if any, on which the Debt Securities are to be
listed
. initial public offering price
. principal amounts, if any, to be purchased by underwriters
. other terms in connection with the offering and sale of the Debt
Securities being sold.
All or a portion of the Debt Securities may be issued in global form. This
means that you will not receive a paper certificate. Instead you will receive a
statement showing your ownership of the Debt Securities that you purchased. A
more detailed discussion appears under the heading "Book-Entry Issuance."
Senior and Senior Subordinated Debt Securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest
at a rate which at the time of issuance is below market rates. Certain United
States Federal income tax consequences and special considerations applicable to
any such Senior and Senior Subordinated Debt Securities will be described in
the applicable prospectus supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest on any series of Debt Securities, special United
States Federal income tax, accounting and other considerations applicable
thereto will be described in the applicable prospectus supplement.
The Senior Debt Securities are to be issued under 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 Debt Securities are to be issued
under an Indenture, dated as of October 1, 1993, as it may be supplemented from
time to time (the "Senior Subordinated Indenture"), between the Company and
Chase Manhattan Trust Company, National Association, as Trustee (the "Senior
Subordinated Trustee"). The Senior Indenture is incorporated as an exhibit to
the registration statement of which this prospectus is a part by reference to
the Company's Registration Statement on Form S-3 (No. 33-51984) and the Senior
Subordinated Indenture is incorporated as an exhibit to the Registration
Statement of which this prospectus is a part by reference to the Company's
Registration Statement on Form S-3 (No. 33-50333). The two Indentures are
sometimes referred to collectively as the "Indentures," and the two Trustees
are sometimes referred to collectively as the "Trustees."
The following summaries of certain provisions of the Senior Debt Securities,
the Senior Subordinated Debt Securities and the Indentures are not complete.
For a complete description of these Debt Securities you should read the
Indenture applicable to a particular series of Debt Securities (the "Applicable
Indenture"), including the definitions therein of certain terms.
Wherever we refer to particular sections, articles or defined terms of the
Applicable Indentures we are incorporating those sections, articles or defined
terms into this prospectus by reference. Capitalized terms not otherwise
defined herein shall have the meaning given to them in the Applicable
Indenture.
GENERAL
The Indentures do not limit the aggregate principal amount of the Debt
Securities or of any particular series of Debt Securities that may be issued
thereunder and provide that Debt Securities may be issued from
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<PAGE>
time to time in series. The Senior Debt Securities will be unsecured and
unsubordinated obligations of the Company and will rank equally with all other
unsecured and unsubordinated indebtedness of the Company. The Senior
Subordinated Debt Securities will be unsecured subordinated obligations of the
Company. A more complete discussion appears under the heading "--Subordination
of Senior Subordinated Debt Securities."
The particular terms of any series of Debt Securities will be contained in
the prospectus supplement. The prospectus supplement will specify the following
terms or additional provisions of the Debt Securities:
(1) the title of the series of Debt Securities;
(2) whether the series of Debt Securities are Senior Debt Securities or
Senior Subordinated Debt Securities;
(3) any limit on the aggregate principal amount of the series of Debt
Securities;
(4) the price (expressed as a percentage of the aggregate principal
amount thereof) at which the series of the Debt Securities will be issued;
(5) the Person to whom any interest on a Debt Security of such series
will be payable, if other than the Person in whose name that Debt Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(6) the date or dates on which the principal of the series of Debt
Securities will be payable;
(7) the rate or rates (or the formula pursuant to which such rate or
rates shall be determined) per annum at which the series of Debt Securities
will bear interest, if any;
(8) the date or dates from which any such interest will accrue and the
dates on which such payment of any such interest will be payable and the
Regular Record Dates for such interest payment dates;
(9) the place or places where the principal of (and premium, if any) and
interest on the series of Debt Securities shall be payable;
(10) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, the series of Debt Securities may
be redeemed in whole or in part, at the option of the Company;
(11) the obligation, if any, of the Company to redeem, repay, or purchase
such series of Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions
upon which, such Debt Securities shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(12) the denominations in which such series of Debt Securities will be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(13) the currency or currencies in which payment of principal and
premium, if any, and interest on the series of Debt Securities will be
payable, if other than United States dollars;
(14) if the principal of (and premium, if any) or interest, if any, on
such series of Debt Securities is to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies other than that in
which such series of Debt Securities are stated to be payable, the currency
or currencies in which payment of the principal of (and premium, if any) or
interest, if any, on such series of Debt Securities as to which such
election is made will be payable, and the period or periods within which,
and the terms and conditions upon which, such election may be made;
(15) the index, if any, with reference to which the amount of any payment
of principal of (and premium, if any) or interest on the series of Debt
Securities will be determined;
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<PAGE>
(16) the portion of the principal amount of such series of Debt
Securities which will be payable upon declaration of acceleration of the
Maturity thereof, if other than the principal amount thereof;
(17) any additional Events of Default or, in the case of Senior
Subordinated Debt Securities, Default, solely with respect to the Debt
Securities;
(18) whether the provisions of the Applicable Indenture described under
"--Defeasance and Covenant Defeasance" will be applicable to such Debt
Securities;
(19) whether any of the series of Debt Securities are to be issuable in
global form;
(20) any additional restrictive covenants included solely for the benefit
of the series of Debt Securities;
(21) if the series of Debt Securities are Senior Subordinated Debt
Securities, whether the provisions in the Senior Subordinated Indenture
described under "--Subordination of Senior Subordinated Debt Securities" or
other subordination provisions will be applicable to such Senior
Subordinated Debt Securities; and
(22) any additional terms of the series of Debt Securities not
inconsistent with the provisions of the Applicable Indenture. (Sections 301
and 901).
With respect to Debt Securities sold through underwriters or agents, the
maturities and interest rates of such Debt Securities may be fixed by the
Company from time to time, in which case such maturities and rates will not be
set forth in the prospectus supplement relating thereto.
Unless otherwise provided in the prospectus supplement:
(i) principal of (and premium, if any) and interest on the Debt
Securities will be payable, and the Debt Securities will be exchangeable
and transfers thereof will be registerable, at the office or agency of The
Bank of New York in the Borough of Manhattan, The City of New York, except
that, at the option of the Company, interest may be paid by mailing a check
to the address of the Person entitled thereto as it appears in the Security
Register. (Sections 202, 305 and 1002); and
(ii) the Debt Securities will be issued only in registered form without
coupons and in denominations of $1,000 and integral multiples thereof.
(Section 302).
No service charge will be made for any transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Section
305).
Debt Securities may be issued as Original Issue Discount Debt Securities to
be sold at a substantial discount below their principal amount. Special Federal
income tax, accounting and other considerations applicable thereto will be
described in the prospectus supplement relating thereto. "Original Issue
Discount Debt Security" means any security which provides for an amount less
than the principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof upon the occurrence and continuance of an
Event of Default. (Section 101).
If the Debt Securities are denominated in whole or in part in any currency
other than United States dollars, if the principal of (and premium, if any) or
interest, if any, on the Debt Securities are to be payable at the election of
the Company or a Holder thereof, in a currency or currencies other than that in
which such Debt Securities are to be payable, or if any index is used to
determine the amount of payments of principal of, premium, if any, or interest
on any series of the Debt Securities, special Federal income tax, accounting
and other considerations applicable thereto will be described in the prospectus
supplement relating thereto.
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<PAGE>
Because the Company is a holding company, its rights and the rights of its
creditors, including the holders of the Debt Securities, to a share of the
assets of any Subsidiary upon the liquidation or recapitalization of the
Subsidiary will be subject to the prior claims of the Subsidiary's creditors
(including, in the case of the Bank and The Bank of New York (Delaware), their
depositors), except to the extent that the Company may itself be a creditor
with recognized claims against the Subsidiary.
Indebtedness of the Company which is senior to the Senior Subordinated Debt
Securities, at September 30, 1998, totaled approximately $2,398,290,247. This
amount does not include indebtedness of subsidiaries of the Company. See also
"The Company" and "Certain Regulatory Considerations" for a more detailed
discussion.
The Indentures do not contain any provisions that would provide protection
to Holders of the Debt Securities against a sudden and dramatic decline in
credit quality of the Company resulting from any highly leveraged transaction,
takeover, merger, recapitalization or similar restructuring or change in
control.
The Indentures allow us to merge or consolidate with another company, or to
sell all or substantially all of our assets to another company. If these events
occur, the other company will be required to assume our responsibilities
relating to the Debt Securities, and we will be released from all liabilities
and obligations. See "--Merger, Consolidation and Sale of Assets" for a more
detailed discussion.
The Indentures provide that holders of a majority of the total principal
amount of outstanding Debt Securities of any series may vote to change certain
of our obligations or certain of your rights concerning the Debt Securities of
that series. However, to change the amount or timing of principal, interest or
other payments under the Debt Securities, every holder in the series must
consent. See "Modification of the Indentures" for a more detailed discussion.
SUBORDINATION OF SENIOR SUBORDINATED DEBT SECURITIES
The payment of the principal of and interest on the Senior Subordinated Debt
Securities will, to the extent set forth in the Senior Subordinated Indenture,
be subordinated in right of payment to the prior payment in full of all Senior
Indebtedness (as defined in the Senior Subordinated Indenture). In certain
events of insolvency, the payment of the principal of and interest on the
Senior Subordinated Debt Securities will, to the extent set forth in the Senior
Subordinated Indenture, also be effectively subordinated in right of payment to
the prior payment in full of all Other Financial Obligations (as defined in the
Senior Subordinated Indenture). Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any
bankruptcy, insolvency or similar proceedings of the Company, the holders of
all Senior Indebtedness will first be entitled to receive payment in full of
all amounts due or to become due thereon before the holders of the Senior
Subordinated Debt Securities will be entitled to receive any payment in respect
of the principal of or interest on the Senior Subordinated Debt Securities. If
upon any such payment or distribution of assets to creditors, there remain,
after giving effect to such subordination provisions in favor of the holders of
Senior Indebtedness, any amounts of cash, property or securities available for
payment or distribution in respect of Senior Subordinated Debt Securities (as
defined in the Senior Subordinated Indenture, "Excess Proceeds") and if, at
such time, any Entitled Persons in respect of Other Financial Obligations have
not received payment in full of all amounts due or to become due on or in
respect of such Other Financial Obligations, then such Excess Proceeds 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 the Senior Subordinated Debt Securities. In the event of the acceleration of
the maturity of any Senior Subordinated Debt Securities, the holders of all
Senior Indebtedness will first be entitled to receive payment in full of all
amounts due thereon before the holders of the Senior Subordinated Debt
Securities will be entitled to receive any payment upon the principal of or
interest on the Senior Subordinated Debt Securities. No payments on account of
principal of or interest on the Senior Subordinated Debt Securities or on
account of the purchase or acquisition of Senior Subordinated Debt Securities
may be made if there shall have occurred and be continuing a default in any
payment with respect to Senior Indebtedness, or if any judicial proceeding
shall be pending with respect to any such default. (Article Thirteen of the
Senior Subordinated Indenture).
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By reason of such subordination in favor of the holders of Senior
Indebtedness, in the event of insolvency, creditors of the Company who are not
holders of Senior Indebtedness or of the Senior Subordinated Debt Securities
may recover less, ratably, than holders of Senior Indebtedness and may recover
more, ratably, than the holders of the Senior Subordinated Debt Securities. By
reason of the obligation of the holders of Senior Subordinated Debt Securities
to pay over any Excess Proceeds to Entitled Persons in respect of Other
Financial Obligations, in the event of insolvency, holders of Existing
Subordinated Indebtedness may recover less, ratably, than Entitled Persons in
respect of Other Financial Obligations and may recover more, ratably, than the
holders of Senior Subordinated Debt Securities.
Unless otherwise specified in the prospectus supplement relating to the
particular series of Senior Subordinated Debt Securities offered thereby,
Senior Indebtedness is defined in the Senior Subordinated Indenture as (a) the
principal of (and premium, if any), and interest on all of the Company's
indebtedness for money borrowed, whether outstanding on the date of execution
of the Senior Subordinated Indenture or thereafter created, assumed or
incurred, except (i) such indebtedness as is by its terms expressly stated to
be junior in right of payment to the Senior Subordinated Debt Securities and
(ii) such indebtedness as is by its terms expressly stated to rank equally with
the Senior Subordinated Debt Securities and (b) any deferrals, renewals or
extensions of any such Senior Indebtedness; provided, however, that Senior
Indebtedness shall not include Existing Subordinated Indebtedness. (Section 101
of the Senior Subordinated Indenture). The term "indebtedness for money
borrowed" when used with respect to the Company is defined to mean any
obligation of, or any obligation guaranteed by, the Company for the repayment
of borrowed money, whether or not evidenced by bonds, debentures, notes or
other written instruments, and any deferred obligation of, or any such
obligation guaranteed by, the Company for the payment of the purchase price of
property or assets. (Section 101 of the Senior Subordinated Indenture).
Unless otherwise specified in the prospectus supplement relating to the
particular series of Senior Subordinated Debt Securities, Existing Subordinated
Indebtedness means the Company's:
. $350,000,000 7 5/8% Subordinated Notes due 2002
. $250,000,000 7 7/8% Subordinated Notes due 2002
. $300,000,000 6 5/8% Subordinated Notes due 2003
. $250,000,000 6 1/2% Subordinated Notes due 2003
. $300,000,000 8 1/2% Subordinated Notes due 2004
. $20,000,000 7% Subordinated Retail Medium-Term Notes due 2005
. $30,000,000 7.5% Subordinated Retail Medium-Term Notes due 2010
. $50,000,000 7.54% Subordinated Retail Medium-Term Notes due 2010
. $15,000,000 7.5% Subordinated Retail Medium-Term Notes due 2010
. $25,000,000 7.56% Subordinated Retail Medium-Term Notes due 2007
. $50,000,000 7.00% Subordinated Retail Medium-Term Notes due 2010
. $10,000,000 7.125% Subordinated Retail Medium-Term Notes due 2015
. $25,000,000 6.60% Subordinated Retail Medium-Term Notes due 2011
. $10,000,000 6.70% Subordinated Retail Medium-Term Notes due 2011
. $10,000,000 6.70% Subordinated Retail Medium-Term Notes due 2011
. $15,000,000 6.75% Subordinated Retail Medium-Term Notes due 2011
. $10,000,000 7.00% Subordinated Retail Medium-Term Notes due 2011
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. $10,000,000 7.00% Subordinated Retail Medium-Term Notes due 2011
. $20,000,000 7.10% Subordinated Retail Medium-Term Notes due 2011
. $25,000,000 6.75% Subordinated Retail Medium-Term Notes due 2018
. $25,000,000 6.50% Subordinated Retail Medium-Term Notes due 2013
. $15,000,000 6.57% Subordinated Retail Medium-Term Notes due 2013
. $25,000,000 6.50% Subordinated Retail Medium-Term Notes due 2013
. $10,000,000 6.50% Subordinated Retail Medium-Term Notes due 2013
. $25,000,000 6.25% Subordinated Retail Medium-Term Notes due 2013
. $70,600,000 7.4% Zero Coupon Subordinated Retail Medium-Term Notes due
2028 and
. $32,000,000 7.58% Subordinated Retail Medium-Term Notes due 2028.
Unless otherwise specified in the prospectus supplement, the term "Other
Financial Obligations" means all obligations of the Company to make payment
pursuant to the terms of financial instruments, such as:
(i) securities contracts and foreign currency exchange contracts,
(ii) derivative instruments, such as swap agreements (including interest
rate and foreign exchange rate swap agreements), cap agreements, floor
agreements, collar agreements, interest rate agreements, foreign exchange
rate agreements, options, commodity futures contracts, commodity option
contracts and
(iii) in the case of both (i) and (ii) above, similar financial
instruments, other than (A) obligations on account of Senior Indebtedness
and (B) obligations on account of indebtedness for money borrowed ranking
on a parity with or subordinate to the Senior Subordinated Debt Securities.
Unless otherwise specified in the prospectus supplement relating to the
particular series of Senior Subordinated Debt Securities offered thereby,
Entitled Persons means any person who is entitled to payment pursuant to
the terms of Other Financial Obligations. (Section 101 of the Senior
Subordinated Indenture).
Indebtedness of the Company which is senior to the Senior Subordinated Debt
Securities, at September 30, 1998, totaled approximately $2,398,290,247.
Indebtedness of the Company which ranks equally with the Senior Subordinated
Debt Securities, at September 30, 1998, totaled approximately $2,009,163,738.
The Company's obligations under the Senior Subordinated Debt Securities
shall rank on a parity in right of payment with each other and with the
Existing Subordinated Indebtedness, subject to the obligations of the Holders
of Senior Subordinated Debt Securities to pay over any Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations as provided in the
Senior Subordinated Indenture.
The Senior Subordinated Indenture does not limit or prohibit the incurrence
of additional Senior Indebtedness, which may include indebtedness that is
senior to the Senior Subordinated Debt Securities, but subordinate to other
obligations of the Company, including obligations of the Company in respect of
Other Financial Obligations. The Senior Debt Securities, when issued, will
constitute Senior Indebtedness. Junior Subordinated Debt Securities issued by
the Company pursuant to the Junior Indenture will be subordinate in right of
payment to the Senior Subordinated Debt Securities.
The prospectus supplement may further describe the provisions, if any,
applicable to the subordination of the Senior Subordinated Debt Securities of a
particular series.
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GLOBAL DEBT SECURITIES
Unless otherwise stated in a prospectus supplement, each series of Debt
Securities will be represented by fully registered global certificates issued
as global Debt Securities to be deposited with a depositary with respect to
that series, instead of paper certificates issued to each individual owner. The
depositary arrangements that will apply, including the manner in which
principal of and premium, if any, and interest on any series of Debt Securities
and other payments will be payable are discussed in more detail under the
heading "Book-Entry Issuance."
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide, if such provision is made applicable to the Debt
Securities of any series pursuant to Section 301 of the Applicable Indenture
(which will be indicated in the prospectus supplement applicable thereto), that
the Company may elect either (A) to defease and be discharged from any and all
obligations with respect to such Debt Securities then outstanding (including,
in the case of Senior Subordinated Debt Securities, the provisions described
under "--Subordination of Senior Subordinated Debt Securities" and except for
the obligations to register the transfer or exchange of such Debt Securities,
to replace temporary or mutilated, destroyed, lost or stolen Debt Securities,
to maintain an office or agency in respect of the Debt Securities and to hold
moneys for payment in trust) ("defeasance") or (B) to be released from its
obligations with respect to such Debt Securities then outstanding under Section
1005 and Section 1006 of the Senior Indenture and Section 1005 of the Senior
Subordinated Indenture (and any other sections applicable to such Debt
Securities that are determined pursuant to Section 301 to be subject to
covenant defeasance), the occurrence of an event of default specified in, in
the case of Senior Debt Securities, Section 501(4) of the Senior Indenture, and
in the case of Senior Subordinated Debt Securities, Section 503(C) of the
Senior Subordinated Indenture (with respect to Section 1005 and Section 1006 of
the Senior Indenture and Section 1005 of the Senior Subordinated Indenture and
any other sections applicable to such Debt Securities that are determined
pursuant to Section 301 to be subject to covenant defeasance), or, in the case
of Senior Debt Securities, Section 501(5) of the Senior Indenture, and in the
case of Senior Subordinated Debt Securities, Section 503(D) of the Senior
Subordinated Indenture (with respect to Section 1005 of the Indentures
containing the covenant to pay taxes and other claims, Section 1006 of the
Senior Indenture containing the restrictions described under "--Limitation on
Disposition of Stock of the Bank") and Sections 501(4) and 501(5) of the Senior
Indenture and Sections 503(C) and 503(D) of the Senior Subordinated Indenture
containing the provisions described under "--Defaults" relating to covenant
defaults and cross-defaults, respectively, and, in the case of Subordinated
Debt Securities, the provisions described under "--Subordination of Senior
Subordinated Debt Securities" ("covenant defeasance"), upon the deposit with
the applicable Trustee (or other qualifying trustee), in trust for such
purpose, of money and/or U.S. Government Obligations which through the payment
of principal and interest in accordance with their terms will provide money, in
an amount sufficient, without reinvestment, to pay the principal of (and
premium, if any) and interest on such Debt Securities to maturity or
redemption, as the case may be, and any mandatory sinking fund or analogous
payments thereon. As a condition to defeasance or covenant defeasance, the
Company must deliver to the applicable Trustee an Opinion of Counsel (as
specified in the Applicable Indenture) to the effect that the Holders of such
Debt Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance or covenant
defeasance had not occurred. Such opinion, in the case of defeasance under
clause (A) above, must refer to and be based upon a ruling of the Internal
Revenue Service issued to the Company or published as a revenue ruling or upon
a change in applicable Federal income tax law, in any such case after the date
of the Applicable Indenture.
Under current Federal income tax law, defeasance would likely be treated as
a taxable exchange of such Debt Securities for interests in the defeasance
trust. As a consequence a Holder would recognize gain or loss equal to the
difference between the Holder's cost or other tax basis for such Debt
Securities and the value of the Holder's proportionate interest in the
defeasance trust, and thereafter would be required to include in income a
proportionate share of the income, gain and loss of the defeasance trust. Under
current Federal
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income tax law, covenant defeasance would ordinarily not be treated as a
taxable exchange of such Debt Securities. Purchasers of such Debt Securities
should consult their own advisors with respect to the tax consequences to them
of such defeasance and covenant defeasance, including the applicability and
effect of tax laws other than the Federal income tax law.
The Company may exercise its defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its defeasance option, payment of such Debt
Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of such Debt
Securities may not be accelerated by reference to the covenants noted under
clause (B) above. However, if such an acceleration were to occur, the
realizable value at the acceleration date of the money and U.S. Government
Obligations in the defeasance trust could be less than the principal and
interest then due on such Debt Securities, in that the required deposit in the
defeasance trust is based upon scheduled cash flows rather than market value,
which will vary depending upon interest rates and other factors. (Article 13
and Article 14 of the Senior Indenture and the Senior Subordinated Indenture,
respectively).
The prospectus supplement may further describe the provisions, if any,
applicable to defeasance or covenant defeasance with respect to the Debt
Securities of a particular series.
LIMITATION ON DISPOSITION OF STOCK OF THE BANK
The Senior Indenture contains a covenant by the Company that, so long as any
of the Senior Debt Securities issued pursuant to it are outstanding, but
subject to the rights of the Company in connection with its consolidation with
or merger into another Person or a sale of the Company's assets, neither the
Company nor any Intermediate Subsidiary will sell, assign, transfer, grant a
security interest in or otherwise dispose of any shares of, or securities
convertible into, or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock of the Bank (except to the Company or an Intermediate
Subsidiary), nor will the Company or any Intermediate Subsidiary permit the
Bank to issue any shares of, or securities convertible into, or options,
warrants or rights to subscribe for or purchase shares of, Voting Stock of the
Bank, unless (a) any such sale, assignment, transfer, grant of a security
interest or other disposition is made for fair market value, as determined by
the Board of Directors of the Company or any Intermediate Subsidiary, and (b)
the Company and any one or more Intermediate Subsidiaries will collectively own
at least 80% of the issued and outstanding Voting Stock of the Bank (or any
successor to the Bank) free and clear of any security interest after giving
effect to such transaction. The foregoing, however, shall not preclude the Bank
from being consolidated with or merged into another domestic banking
corporation, if after such merger or consolidation the Company, any successor
thereto in a permissible merger, or any one or more Intermediate Subsidiaries
own at least 80% of the Voting Stock of the resulting bank and immediately
after giving effect thereto no Event of Default and no event which would become
an Event of Default shall have occurred and be continuing. "Intermediate
Subsidiary" is defined in the Senior Indenture as a Subsidiary (i) that is
organized under the laws of any domestic jurisdiction and (ii) of which all the
shares of each class of capital stock issued and outstanding, and all
securities convertible into, and options, warrants and rights to subscribe for
or purchase shares of, such capital stock, are owned directly by the Company,
free and clear of any security interest. The Company will further covenant that
it will not permit any Intermediate Subsidiary that owns any shares of, or
securities convertible into, or options, warrants or rights to subscribe for or
purchase shares of, Voting Stock of the Bank to cease to be an Intermediate
Subsidiary. (Section 1006 of the Senior Indenture).
DEFAULTS
The Senior Indenture
The Senior Indenture defines an Event of Default with respect to any series
of Senior Debt Securities as any one of the following events:
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(a) default for 30 days in payment of interest on any Senior Debt
Security of that series;
(b) default in payment of principal of (or premium, if any), on any
Senior Debt Security of that series at Maturity;
(c) default in the deposit of any sinking fund payment, when and as due
by the terms of a Senior Debt Security of that series;
(d) failure by the Company for 60 days after due notice in performance or
the breach of any covenant or warranty in the Senior Indenture or any
Senior Debt Security of a particular series (other than a covenant or
warranty included in the Senior Indenture solely for the benefit of a
series of Senior Debt Securities other than that series);
(e) (i) failure by the Company or the Bank to pay indebtedness for money
borrowed (including Debt Securities of other series) in an aggregate
principal amount exceeding $25,000,000 at the later of final maturity or
upon the expiration of any applicable period of grace with respect to such
principal amount; or (ii) acceleration of the maturity of any indebtedness
of the Company or the Bank for borrowed money, in excess of $25,000,000, if
such failure to pay or acceleration results from a default under the
instrument giving rise to, or securing, such indebtedness and is not
annulled within 30 days after due notice, unless such default is contested
in good faith by appropriate proceedings;
(f) certain events of bankruptcy, insolvency or reorganization of the
Company or the Bank; and
(g) any other Event of Default provided with respect to Senior Debt
Securities of that series. (Section 501).
If an Event of Default occurs with respect to any series of Senior Debt
Securities, the trustee or holders of 25% of the outstanding principal amount
of that series may declare the principal amount (or, if the Senior Debt
Securities of that series are Original Issue Discount Senior Debt Securities,
such portion of the principal amount as may be specified in the terms of that
series) of the series immediately payable (provided that no such declaration is
required upon certain events of bankruptcy). As explained in more detail in
Sections 502 and 513 of the Senior Indenture, holders of a majority of the
principal amount may rescind this action.
The Senior Subordinated Indenture
The Senior Subordinated Indenture defines an Event of Default with respect
to any series of Senior Subordinated Debt Securities as being certain events
involving the bankruptcy, insolvency or reorganization of the Company. (Section
501).
The Senior Subordinated Indenture defines a Default with respect to Senior
Subordinated Debt Securities of any series as any one of the following events:
. an Event of Default;
. default for 30 days in payment of interest on any Senior Subordinated
Debt Securities of that series;
. default in payment of principal of (or premium, if any), on any Senior
Subordinated Debt Security of that series at Maturity;
. default in the deposit of any sinking fund payment, when and as due by
the terms of a Senior Subordinated Debt Security of that series;
. failure by the Company for 60 days after due notice in performance or
the breach of any covenant or warranty in the Senior Subordinated
Indenture or any Senior Subordinated Debt Security of a particular
series (other than a covenant or warranty included in the Senior
Subordinated Indenture solely for the benefit of another series of
Senior Subordinated Debt Securities);
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. (i) failure by the Company or the Bank to pay indebtedness for money
borrowed (including Subordinated Debt Securities or other series) in an
aggregate principal amount exceeding $25,000,000 at the later of final
maturity or upon the expiration of any applicable grace period with
respect to such principal amount: or (ii) acceleration of the maturity
of any indebtedness of the Company or the Bank for borrowed money in
excess of $25,000,000, if such failure to pay or acceleration results
from a default under the instrument giving rise to, or securing, such
indebtedness and is not annulled within 30 days after due notice, unless
such default is contested in good faith by appropriate proceedings; and
. any other Default with respect to Senior Subordinated Debt Securities of
that series.
In case a Default shall occur and be continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by appropriate judicial proceedings as the Trustee deems most
effectual. In case of a Default (including a default in the payment of
principal or interest) there is no right to declare the principal amount of the
series immediately payable.
If an Event of Default occurs with respect to any series of Senior
Subordinated Debt Securities, the trustee or holders of 25% of the outstanding
principal amount of that series may declare the principal amount of the series
immediately payable (provided that no such declaration is required upon certain
events of bankruptcy). However, as explained in more detail below holders of a
majority of the principal amount may rescind this action.
Upon certain conditions such declaration may be annulled and past defaults
(except, unless theretofore cured, a default in payment of principal of (or
premium, if any), or interest on the Senior Subordinated Debt Securities of
that series and certain other specified defaults) may be waived by the Holders
of a majority in principal amount of the outstanding Senior Subordinated Debt
Securities of that series on behalf of the Holders of all Senior Subordinated
Debt Securities of that series. (Sections 502 and 513).
Senior and Senior Subordinated Indentures
The Indentures provide that the applicable Trustee will, within 90 days
after the occurrence of a default with respect to Debt Securities of any series
at the time outstanding with respect to which it is Trustee, give to the
Holders of the outstanding Debt Securities of that series notice of such
default known to it if uncured or not waived, provided that, except in the case
of default in the payment of principal of (or premium, if any), or interest on
any Debt Security of that series, or in the payment of any sinking fund
installment which is provided, such Trustee will be protected in withholding
such notice if such Trustee in good faith determines that the withholding of
such notice is in the interest of the Holders of the outstanding Debt
Securities of such series; and, provided further, that such notice shall not be
given until 60 days after the occurrence of a default with respect to
outstanding Debt Securities of any series in the performance or breach of a
covenant in the Applicable Indenture other than for the payment of the
principal of (or premium, if any), or interest on any Debt Security of such
series or the deposit of any sinking fund payment with respect to the Debt
Securities of such series. The term default with respect to any series of
outstanding Debt Securities for the purpose only of this provision means the
happening of any of the Events of Default or, in the case of the Senior
Subordinated Indenture, Defaults, specified in the Applicable Indenture and
relating to such series of outstanding Debt Securities. (Section 602).
The Indentures provide that, subject to the duty of the Trustees during a
default to act with the required standard of care, the Trustees will not be
under an obligation to exercise any of their rights or powers under the
Indentures at the request or direction of any of the Holders, unless such
Holders shall have offered to the Trustees reasonable security or indemnity.
(Sections 601 and 603). The Indentures provide that the Holders of a majority
in principal amount of outstanding Debt Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee for that series, or exercising any trust or other power conferred
on such Trustee, provided that such Trustee may decline to act if such
direction is
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contrary to law or the applicable Indenture and may take any other action
deemed proper which is not inconsistent with such direction. (Section 512).
The Indentures include a covenant that the Company will file annually with
the Trustees a certificate of no default or specifying any default that exists.
(Section 1007 of the Senior Indenture and Section 1004 of the Senior
Subordinated Indenture).
MODIFICATION OF THE INDENTURES
From time to time the Company and the applicable Trustee may, without the
consent of the holders of any series of Debt Securities, amend, waive or
supplement each Indenture for specified purposes, including, among other
things, curing ambiguities or inconsistencies (provided that any such action
does not materially adversely affect the interest of the holders of any series
of Debt Securities).
Modification and amendments of each Indenture may be made by the Company and
the Trustee under the applicable Indenture, only with the consent of the
Holders of not less than a majority in principal amount of each series of
outstanding Debt Securities issued under such Indenture and affected thereby,
by executing supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of the Applicable Indenture or modifying the
rights of the Holders of outstanding Debt Securities of such series (including
the modification of the subordination provisions in a manner adverse to Holders
in the case of the Senior Subordinated Indenture), except that no such
supplemental indenture may:
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Debt Security;
(b) reduce the principal amount of, or any premium or the rate of
interest on, any Debt Security;
(c) reduce the amount of principal of an Original Issue Discount Security
payable upon acceleration of the Maturity thereof,
(d) adversely affect any right of repayment at the option of the Holder
of any Debt Security;
(e) reduce the amount of, or postpone the date fixed for, the payment of
any sinking fund or analogous obligation;
(f) change the place or currency of payment of principal of (or premium,
if any) or interest on, any Debt Security;
(g) impair the right to institute suit for the enforcement of any payment
on or with respect to any Debt Security on or after the Stated Maturity
(or, in the case of redemption, on or after the Redemption Date);
(h) reduce the percentage in principal amount of outstanding Debt
Securities of any series, the consent of the Holders of which is required
for modification or amendment of the Applicable Indenture, for waiver of
compliance with certain provisions of the Applicable Indenture or for
waiver of certain covenant defaults;
(i) modify the provisions of the Applicable Indenture relating to
modification and amendment of the Applicable Indenture; or
(j) in the case of the Senior Subordinated Indenture, modify the
subordination provisions adverse to the holders of Senior Indebtedness, in
each case, without such holders' consent.
The Indentures provide, however, that each of the amendments and
modifications listed in clauses (a) through (i) and, in the case of the Senior
Subordinated Indenture, (j) above may be made with the consent of the Holder of
each outstanding Security affected thereby. (Section 902 of the Indentures and
Section 907 of the Senior Subordinated Indenture).
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CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Debt
Securities under either Indenture, may consolidate with or merge into any other
Person or convey, transfer or lease its assets substantially as an entirety to
any Person, or, in the case of the Senior Subordinated Indenture, permit any
Person to consolidate with or merge into the Company or convey, transfer or
lease its properties substantially as an entirety to the Company, provided
that:
(i) if applicable, the successor is a Person, organized under the laws of
any domestic jurisdiction;
(ii) the successor Person, if other than the Company, assumes the
Company's obligations on the Debt Securities and under the Indentures;
(iii) after giving effect to the transaction no Event of Default, or, in
the case of the Senior Subordinated Indenture, Default, and no event which,
after notice or lapse of time, would become an Event of Default, or, in the
case of the Senior Subordinated Indenture, Default, shall have occurred and
be continuing; and
(iv) certain other conditions are met. (Section 801).
Upon any consolidation or merger into any other Person or any conveyance,
transfer or lease of the Company's assets substantially as an entirety to any
Person, the successor Person shall succeed to, and be substituted for, the
Company under the Indentures, and the Company, except in the case of a lease,
shall be relieved of all obligations and covenants under the Indentures and the
Debt Securities to the extent it was the predecessor Person.
OUTSTANDING DEBT SECURITIES
The Indentures provide that, in determining whether the Holders of the
requisite principal amount of outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver under the
Applicable Indenture:
(i) the portion of the principal amount of an Original Issue Discount
Debt Security that shall be deemed to be outstanding for such purposes
shall be that portion of the principal amount thereof that would be due and
payable as of the date of such determination upon the declaration of
acceleration of the maturity thereof upon the occurrence and continuance of
an Event of Default,
(ii) the portion of the principal amount of a Debt Security denominated
in a foreign currency or currencies that shall be deemed to be outstanding
for such purpose shall be the U.S. dollar equivalent, determined on the
date of original issuance of such Debt Security, of the principal amount of
such Debt Security (or, in the case of an Original Issue Discount Debt
Security, the U.S. dollar equivalent on the date of original issuance of
such Debt Security of the amount determined as provided in (i) above), and
(iii) Debt Securities owned by the Company or any of its Affiliates shall
not be deemed to be outstanding. (Section 101).
CONCERNING THE TRUSTEES
Bankers Trust Company and Chase Manhattan Trust Company, National
Association are the Trustees under the Senior Indenture and the Senior
Subordinated Indenture, respectively. Chase Manhattan Trust Company, National
Association is also trustee for the Company's:
. 6 1/2% Subordinated Notes due December 2003
. 8 1/2% Subordinated Notes due December 2004
. 7% Subordinated Retail Medium-Term Notes due August 2005
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. 7.5% Subordinated Retail Medium-Term Notes due August 2010
. 7.54% Subordinated Retail Medium-Term Notes due August 2010
. 7.5% Subordinated Retail Medium-Term Notes due August 2010
. 7.56% Subordinated Retail Medium-Term Notes due 2007
. 7.00% Subordinated Retail Medium-Term Notes due 2010
. 7.125% Subordinated Retail Medium-Term Notes due 2015
. 6.60% Subordinated Retail Medium-Term Notes due 2011
. 6.70% Subordinated Retail Medium-Term Notes due 2011
. 6.70% Subordinated Retail Medium-Term Notes due 2011
. 6.75% Subordinated Retail Medium-Term Notes due 2011
. 7.00% Subordinated Retail Medium-Term Notes due 2011
. 7.00% Subordinated Retail Medium-Term Notes due 2011
. 7.10% Subordinated Retail Medium-Term Notes due 2011
. 6.75% Subordinated Retail Medium-Term Notes due 2018
. 6.50% Subordinated Retail Medium-Term Notes due 2013
. 6.57% Subordinated Retail Medium-Term Notes due 2013
. 6.50% Subordinated Retail Medium-Term Notes due 2013
. 6.50% Subordinated Retail Medium-Term Notes due 2013
. 6.25% Subordinated Retail Medium-Term Notes due 2013
. 7.4% Zero Coupon Subordinated Retail Medium-Term Notes due 2028
. 7.58% Subordinated Retail Medium-Term Notes due 2028
. Floating Rate Institutional Medium-Term Notes Due 2000
. Floating Rate Retail Medium-Term Notes Due 2000
. Floating Rate Institutional Medium-Term Notes Due 1999 and
. Floating Rate Institutional Medium-Term Notes Due 1999.
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
SUMMARY
The following description of the terms of the Junior Subordinated Debt
Securities sets forth certain general terms and provisions. The particular
terms of any Junior Subordinated Debt Securities will be contained in a
prospectus supplement. The prospectus supplement will describe the:
. specific designation
. aggregate principal amount
. maturity
. interest rate (which may be fixed or variable)
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. when interest is paid
. terms for redemption at the option of the Company or the holder, if any
. other terms in connection with the offering and sale of the Junior
Subordinated Debt Securities being sold.
Unless otherwise provided in the related prospectus supplement, the Junior
Subordinated Debt Securities will be issued in global (book-entry) form to a
BNY Trust. The Corresponding Junior Subordinated Debt Securities will be
registered in the name of the Property Trustee who will hold the Corresponding
Junior Subordinated Debt Securities for the benefit of the holders of the Trust
Preferred Securities.
The Junior Subordinated Debt Securities are to be issued in one or more
series under a Junior Subordinated Indenture, dated as of December 25, 1996, as
supplemented from time to time (as so supplemented, the "Junior Indenture"),
between the Company and The First National Bank of Chicago, as trustee (the
"Junior Indenture Trustee").
The following summary of certain terms and provisions of the Junior
Subordinated Debt Securities, Corresponding Junior Subordinated Debentures and
the Junior Indenture, is not complete. For a complete description you should
read the Junior Indenture. The form of the Junior Indenture has been filed with
the SEC as an exhibit to the registration statement of which this prospectus
forms a part. The Junior Indenture is qualified under the Trust Indenture Act.
Wherever we refer to particular sections, articles or defined terms of the
Junior Indenture we are incorporating those sections, articles or defined terms
into this prospectus by reference. Capitalized terms not otherwise defined
herein shall have the meaning given to them in the Junior Indenture. The Junior
Indenture is incorporated as an exhibit to the registration statement of which
this prospectus is a part by reference to the Company's Registration Statement
on Form S-3 (Nos. 333-40837, 333-40837-01, 333-40837-02 and 333-40837-03).
GENERAL
Each series of Junior Subordinated Debt Securities will rank equally with
all other series of Junior Subordinated Debt Securities and will be unsecured
and subordinate and junior in right of payment to the extent and in the manner
set forth in the Junior Indenture to all Senior Debt (as defined below) of the
Company, including the Senior Debt Securities and the Senior Subordinated Debt
Securities. See "--Subordination".
Indebtedness of the Company which is senior to the Junior Subordinated Debt
Securities, at September 30, 1998, totaled approximately $4,407,453,984. This
amount does not include indebtedness of subsidiaries of the Company. See also
"The Company" and "Certain Regulatory Considerations" for a more detailed
discussion.
Except as otherwise provided in the applicable prospectus supplement, the
Junior Indenture does not limit the incurrence or issuance of other secured or
unsecured debt of the Company, including Senior Debt, whether under the Junior
Indenture, any other existing indenture or any other indenture that the Company
may enter into in the future or otherwise.
The Junior Subordinated Debt Securities will be issuable in one or more
series pursuant to an indenture supplemental to the Junior Indenture or a
resolution of the Company's Board of Directors or a committee thereof.
Junior Subordinated Debt Securities may be sold at a substantial discount
below their stated principal amount bearing no interest or interest at a rate
which at the time of issuance is below market rates. Certain United States
Federal income tax consequences and special considerations applicable to any
such Junior Subordinated Debt Securities will be described in the applicable
prospectus supplement.
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If any index is used to determine the amount of payments of principal of,
premium, if any, or interest on any series of Junior Subordinated Debt
Securities, special United States Federal income tax, accounting and other
considerations applicable thereto will be described in the applicable
prospectus supplement.
The Junior Indenture does not limit the aggregate principal amount of the
Junior Subordinated Debt Securities or of any particular series of Junior
Subordinated Debt Securities that may be issued thereunder and provides that
Junior Subordinated Debt Securities may be issued from time to time in series.
The applicable prospectus supplement or prospectus supplements will describe
the following terms of the Junior Subordinated Debt Securities:
(1) the title of the Junior Subordinated Debt Securities;
(2) any limit upon the aggregate principal amount of the Junior
Subordinated Debt Securities;
(3) the date or dates on which the principal of the Junior Subordinated
Debt Securities is payable (the "Stated Maturity") or the method of
determination thereof and the Company's right to shorten or extend such
date or dates;
(4) the rate or rates, if any, at which the Junior Subordinated Debt
Securities shall bear interest;
(5) the dates on which any such interest shall be payable (the "Interest
Payment Dates");
(6) the right, if any, of the Company to defer or extend an Interest
Payment Date;
(7) the record dates for any interest payable on any Interest Payment
Date or the method by which any of the foregoing shall be determined;
(8) the place or places where, subject to the terms of the Junior
Indenture as described below under "--Payment and Paying Agents", the
principal of and premium, if any, and interest on the Junior Subordinated
Debt Securities will be payable and where, subject to the terms of the
Junior Indenture as described below under "--Denominations, Registration
and Transfer," the Junior Subordinated Debt Securities may be presented for
registration of transfer or exchange and the place or places where notices
and demands to or upon the Company in respect of the Junior Subordinated
Debt Securities and the Junior Indentures may be made ("Place of Payment");
(9) any period or periods within which or date or dates on which, the
price or prices at which and the terms and conditions upon which Junior
Subordinated Debt Securities may be redeemed, in whole or in part, at the
option of the Company or a holder thereof;
(10) the obligation or the right, if any, of the Company or a holder
thereof to redeem, purchase or repay the Junior Subordinated Debt
Securities and the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which and the other terms and conditions upon which the Junior Subordinated
Debt Securities shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(11) the denominations in which any Junior Subordinated Debt Securities
shall be issuable if other than denominations of $25.00 and any integral
multiple thereof;
(12) if other than in U.S. Dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any) and
interest and Additional Interest, if any, on the Junior Subordinated Debt
Securities shall be payable, or in which the Junior Subordinated Debt
Securities shall be denominated;
(13) any additions, modifications or deletions in the events of default
under the Junior Indenture or covenants of the Company specified in the
Junior Indenture with respect to the Junior Subordinated Debt Securities;
(14) if other than the principal amount thereof, the portion of the
principal amount of Junior Subordinated Debt Securities that shall be
payable upon declaration of acceleration of the maturity thereof;
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(15) any additions or changes to the Junior Indenture with respect to a
series of Junior Subordinated Debt Securities as shall be necessary to
permit or facilitate the issuance of such series in bearer form,
registerable or not registerable as to principal, and with or without
interest coupons;
(16) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Junior Subordinated Debt
Securities and the manner in which such amounts will be determined;
(17) the terms and conditions relating to the issuance of a temporary
Global Security representing all of the Junior Subordinated Debt Securities
of such series and the exchange of such temporary Global Security for
definitive Junior Subordinated Debt Securities of such series;
(18) subject to the terms described herein under "--Global Junior
Subordinated Debt Securities", whether the Junior Subordinated Debt
Securities of the series shall be represented by fully registered global
certificates and, in such case, the depositary for such global
certificates, which Depositary shall be a clearing agency registered under
the Exchange Act;
(19) the appointment of any paying agent or agents;
(20) the terms and conditions of any obligation or right of the Company
or a holder to convert or exchange the Junior Subordinated Debt Securities
into other Company securities;
(21) the form of Trust Agreement, Guarantee Agreement and Expense
Agreement, if applicable;
(22) the relative degree, if any, to which such Junior Subordinated Debt
Securities of the series shall be senior to or be subordinated to other
series of such Junior Subordinated Debt Securities or other indebtedness of
the Company in right of payment, whether such other series of Junior
Subordinated Debt Securities or other indebtedness are outstanding or not;
and
(23) any other terms of the Junior Subordinated Debt Securities not
inconsistent with the provisions of the Junior Indenture.
If the Junior Subordinated Debt Securities are denominated in whole or in
part in any currency other than United States dollars, if the principal of (and
premium, if any) or interest, if any, on the Junior Subordinated Debt
Securities are to be payable at the election of the Company or a holder
thereof, in a currency or currencies other than that in which such Junior
Subordinated Debt Securities are to be payable, or if any index is used to
determine the amount of payments of principal of, premium, if any, or interest
on any series of the Junior Subordinated Debt Securities, special Federal
income tax, accounting and other considerations applicable thereto will be
described in the prospectus supplement relating thereto.
The Junior Indenture does not contain any provisions that would provide
protection to holders of the Junior Subordinated Debt Securities against a
sudden and dramatic decline in credit quality of the Company resulting from any
highly leveraged transaction, takeover, merger, recapitalization or similar
restructuring or change in control.
The Junior Indenture allows us to merge or consolidate with another company,
or to sell all or substantially all of our assets to another company. If these
events occur, the other company will be required to
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assume our responsibilities relating to the Junior Subordinated Debt
Securities, and we will be released from all liabilities and obligations. See
"Consolidation, Merger, Sale of Assets and Other Transactions" for a more
detailed discussion.
The Junior Indenture provides that the Company and the Junior Indenture
Trustee may change certain of our obligations or certain of your rights
concerning the Junior Subordinated Debt Securities of that series. However, to
change the amount or timing of principal, interest or other payments under the
Junior Subordinated Debt Securities, every holder in the series must consent.
See "Modification of the Junior Indenture" for a more detailed discussion.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable prospectus supplement, the
Junior Subordinated Debt Securities will be issuable only in registered form
without coupons in denominations of $25.00 and any integral multiple thereof.
See "Book Entry Issuance." Subject to restrictions relating to Junior
Subordinated Debt Securities represented by global certificates, Junior
Subordinated Debt Securities of any series will be exchangeable for other
Junior Subordinated Debt Securities of the same issue and series, of any
authorized denominations, of a like aggregate principal amount, of the same
original issue date and stated maturity and bearing the same interest rate.
Subject to restrictions relating to Junior Subordinated Debt Securities
represented by global certificates, Junior Subordinated Debt Securities may be
presented for exchange as provided above, and may be presented for registration
of transfer (with the form of transfer endorsed thereon, or a satisfactory
written instrument of transfer, duly executed), at the office of the
appropriate securities registrar or at the office of any transfer agent
designated by the Company for such purpose with respect to any series of Junior
Subordinated Debt Securities and referred to in the applicable prospectus
supplement, without service charge and upon payment of any taxes and other
governmental charges as described in the Junior Indenture. The Company will
appoint the Trustee as securities registrar under the Junior Indenture. If the
applicable prospectus supplement refers to any transfer agents (in addition to
the securities registrar) initially designated by the Company with respect to
any series of Junior Subordinated Debt Securities, the Company may at any time
rescind the designation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, provided that the Company
maintains a transfer agent in each place of payment for such series. The
Company may at any time designate additional transfer agents with respect to
any series of Junior Subordinated Debt Securities.
In the event of any redemption, neither the Company nor the Junior Indenture
Trustee shall be required to (i) issue, register the transfer of or exchange
Junior Subordinated Debt Securities of any series during the period beginning
at the opening of business 15 days before the day of selection for redemption
of Junior Subordinated Debt Securities of that series and ending at the close
of business on the day of mailing of the relevant notice of redemption or (ii)
transfer or exchange any Junior Subordinated Debt Securities so selected for
redemption, except, in the case of any Junior Subordinated Debt Securities
being redeemed in part, any portion thereof not to be redeemed.
GLOBAL JUNIOR SUBORDINATED DEBT SECURITIES
Unless otherwise stated in a prospectus supplement or unless issued to a BNY
Trust as Corresponding Junior Subordinated Debentures each series of the Junior
Subordinated Debt Securities will be represented by fully registered global
certificates issued as global Junior Subordinated Debt Securities to be
deposited with a depositary with respect to that series instead of paper
certificates issued to each individual owner. The depositary arrangements that
will apply, including the manner in which principal of and premium, if any, and
interest on Junior Subordinated Debt Securities and other payments will be
payable are discussed in more detail under the heading "Book-Entry Issuance."
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PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of principal of (and premium, if any) and any interest on Junior Subordinated
Debt Securities will be made at the office of the Junior Indenture Trustee in
the City of New York or at the office of such paying agent or paying agents as
the Company may designate from time to time, except that at the option of the
Company payment of any interest may be made (i) except in the case of Junior
Subordinated Debt Securities represented by global certificates or issued to a
BNY Trust, by check mailed to the address of the Person entitled thereto as
such address shall appear in the securities register or (ii) by transfer to an
account maintained by the person entitled thereto as specified in the
securities register, provided that proper transfer instructions have been
received by the Regular Record Date. Unless otherwise indicated in the
applicable prospectus supplement, payment of any interest on Junior
Subordinated Debt Securities will be made to the person in whose name such
Junior Subordinated Debenture is registered at the close of business on the
Regular Record Date for such interest, except in the case of Defaulted
Interest. The Company may at any time designate additional Paying Agents or
rescind the designation of any paying agent; however the Company will at all
times be required to maintain a paying agent in each place of payment for each
series of Junior Subordinated Debt Securities.
Any moneys deposited with the Junior Indenture Trustee or any paying agent,
or then held by the Company in trust, for the payment of the principal of (and
premium, if any) or interest on any Junior Subordinated Debenture and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall, at the request of the Company, be repaid to
the Company and the holder of such Junior Subordinated Debenture shall
thereafter look, as a general unsecured creditor, only to the Company for
payment thereof.
OPTION TO DEFER INTEREST PAYMENTS
If provided in the applicable prospectus supplement, so long as no Debenture
Event of Default (as defined herein) has occurred and is continuing, the
Company will have the right at any time and from time to time during the term
of any series of Junior Subordinated Debt Securities to defer payment of
interest for up to such number of consecutive interest payment periods as may
be specified in the applicable prospectus supplement (each, an "Extension
Period"), subject to the terms, conditions and covenants, if any, specified in
such prospectus supplement, provided that such Extension Period may not extend
beyond the Stated Maturity of such series of Junior Subordinated Debt
Securities. Certain United States Federal income tax consequences and special
considerations applicable to any such Junior Subordinated Debt Securities will
be described in the applicable prospectus supplement. As a consequence of any
such deferral, Distributions on the Related Trust Preferred Securities would be
deferred (but would continue to accumulate additional Distributions thereon at
the rate per annum set forth in the prospectus supplement for such Trust
Preferred Securities) by the BNY Trust of such Trust Preferred Securities
during any such Extension Period. During any such Extension Period, the Company
may not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank on a parity in all respects with or junior in interest to the
Corresponding Junior Subordinated Debt Securities (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Extension Period, (b) as a result of any exchange or
conversion of any class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for any class or series of the
Company's capital stock or of any class or series of the Company's indebtedness
for any class or series of the Company's capital stock, (c) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with
any
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stockholder's rights plan, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options
or other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks on a parity with or junior to such stock).
This covenant will also apply if:
(i) The Company has actual knowledge of an event that with the giving of
notice or the lapse of time, or both, would constitute an Event of Default
under the Junior Indenture with respect to such Junior Subordinated Debt
Securities and the Company has not taken reasonable steps to cure the
event; and
(ii) if such Junior Subordinated Debt Securities are held by a BNY Trust,
the Company is in default with respect to its payment of any obligations
under the Guarantee related to the Related Trust Preferred Securities.
REDEMPTION
Unless otherwise indicated in the applicable prospectus supplement, Junior
Subordinated Debt Securities will not be subject to any sinking fund.
Unless otherwise indicated in the applicable prospectus supplement, the
Company may, at its option and subject to receipt of prior approval by the
Board of Governors of the Federal Reserve if such approval is then required
under applicable capital guidelines or policies, redeem the Junior Subordinated
Debt Securities of any series in whole at any time or in part from time to
time. If the Junior Subordinated Debt Securities of any series are so
redeemable only on or after a specified date or upon the satisfaction of
additional conditions, the applicable prospectus supplement will specify such
date or describe such conditions. Unless otherwise indicated in the applicable
prospectus supplement, Junior Subordinated Debt Securities in denominations
larger than $25.00 may be redeemed in part but only in integral multiples of
$25.00. Except as otherwise specified in the applicable prospectus supplement,
the redemption price for any Junior Subordinated Debenture so redeemed shall
equal any accrued and unpaid interest (including Additional Interest) thereon
to the redemption date, plus 100% of the principal amount thereof.
Except as otherwise specified in the applicable prospectus supplement, if a
Tax Event (as defined below) in respect of a series of Junior Subordinated Debt
Securities or a Capital Treatment Event (as defined below) shall occur and be
continuing, the Company may, at its option and subject to receipt of prior
approval by the Federal Reserve if such approval is then required under
applicable capital guidelines or policies, redeem such series of Junior
Subordinated Debt Securities in whole (but not in part) at any time within 90
days following the occurrence of such Tax Event or Capital Treatment Event, at
a redemption price equal to 100% of the principal amount of such Junior
Subordinated Debt Securities then outstanding plus accrued and unpaid interest
to the date fixed for redemption, except as otherwise specified in the
applicable prospectus supplement.
"Tax Event" means the receipt by a BNY Trust or the Company of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance
of the related Trust Preferred Securities under the Trust Agreement, there is
more than an insubstantial risk that (i) such BNY Trust is, or will be within
90 days of the date of such opinion, subject to United States Federal income
tax with respect to income received or accrued on the corresponding series of
Corresponding Junior Subordinated Debt Securities, (ii) interest payable by the
Company on such series of Corresponding Junior Subordinated Debt Securities is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Company, in whole or in part, for United States Federal income tax
purposes, or (iii) such BNY Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
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A "Capital Treatment Event" means the reasonable determination by the
Company that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any rules or
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such
laws, rules or regulations, which amendment or change is effective or which
pronouncement, action or decision is announced on or after the date of issuance
of the related Trust Preferred Securities, there is more than an insubstantial
risk that the Company will not be entitled to treat an amount equal to the
aggregate Liquidation Amount of the Trust Preferred Securities as "Tier 1
Capital" (or the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to the
Company.
Notice of any redemption will be mailed at least 45 days but not more than
75 days before the redemption date to each Holder of Junior Subordinated Debt
Securities to be redeemed at its registered address. Unless the Company
defaults in payment of the redemption price, on and after the redemption date
interest shall cease to accrue on such Junior Subordinated Debt Securities or
portions thereof called for redemption.
MODIFICATION OF THE JUNIOR INDENTURE
From time to time the Company and the Junior Indenture Trustee may, without
the consent of the holders of any series of Junior Subordinated Debt
Securities, amend, waive or supplement the Junior Indenture for specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies (provided that any such action does not materially adversely
affect the interest of the holders of any series of Junior Subordinated Debt
Securities or, in the case of Corresponding Junior Subordinated Debt
Securities, the holders of the Related Trust Preferred Securities so long as
they remain outstanding) and qualifying, or maintaining the qualification of,
the Junior Indenture under the Trust Indenture Act. The Junior Indenture
contains provisions permitting the Company and the Junior Indenture Trustee,
with the consent of the holders of not less than a majority in principal amount
of each outstanding series of Junior Subordinated Debt Securities affected, to
modify the Junior Indenture in a manner affecting adversely the rights of the
holders of such series of the Junior Subordinated Debt Securities in any
material respect; provided, that no such modification may, without the consent
of the holder of each outstanding Junior Subordinated Debt Security so
affected, (i) change the Stated Maturity of any series of Junior Subordinated
Debt Securities (except as otherwise specified in the applicable prospectus
supplement), or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon or (ii) reduce the percentage of
principal amount of Junior Subordinated Debt Securities of any series, the
holders of which are required to consent to any such modification of the Junior
Indenture, provided that, in the case of Corresponding Junior Subordinated Debt
Securities, so long as any of the Related Trust Preferred Securities remain
outstanding, (a) no such modification may be made that adversely affects the
holders of such Trust Preferred Securities in any material respect, and no
termination of the Junior Indenture may occur, and no waiver of any event of
default or compliance with any covenant under the Junior Indenture may be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount of all outstanding Related Trust Preferred
Securities affected unless and until the principal of the Corresponding Junior
Subordinated Debt Securities and all accrued and unpaid interest thereon have
been paid in full and certain other conditions have been satisfied and (b)
where a consent under the Junior Indenture would require the consent of each
holder of Corresponding Junior Subordinated Debt Securities, no such consent
will be given by the Property Trustee without the prior consent of each holder
of Related Trust Preferred Securities.
In addition, the Company and the Junior Indenture Trustee may execute,
without the consent of any holder of Junior Subordinated Debt Securities, any
supplemental Junior Indenture for the purpose of creating any new series of
Junior Subordinated Debt Securities.
JUNIOR SUBORDINATED DEBT SECURITY EVENTS OF DEFAULT
The Junior Indenture provides that any one or more of the following
described events with respect to a series of Junior Subordinated Debt
Securities that has occurred and is continuing constitutes a "Debenture Event
of Default" with respect to such series of Junior Subordinated Debt Securities:
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(i) failure for 30 days to pay any interest on such series of Junior
Subordinated Debt Securities, including any Additional Interest in respect
thereof, when due (subject to the deferral of any interest payment in the
case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on such series of
Junior Subordinated Debt Securities when due whether at maturity or upon
redemption; or
(iii) failure to observe or perform any other covenants contained in the
indenture for 90 days after written notice to the Company from the Junior
Indenture Trustee or the holders of at least 25% in aggregate outstanding
principal amount of such affected series of outstanding Junior Subordinated
Debt Securities; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal amount of
Junior Subordinated Debt Securities of each series affected have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Junior Indenture Trustee. The Junior Indenture Trustee or the
holders of not less than 25% in aggregate outstanding principal amount of
Junior Subordinated Debt Securities of each series affected may declare the
principal (or, if the Junior Subordinated Debt Securities of such series are
Discount Securities, such portion of the principal amount as may be specified
in a prospectus supplement) due and payable immediately upon a Debenture Event
of Default, and, in the case of Corresponding Junior Subordinated Debt
Securities, should the Junior Indenture Trustee or such holders of such
Corresponding Junior Subordinated Debt Securities fail to make such
declaration, the holders of at least 25% in aggregate Liquidation Amount of the
Related Trust Preferred Securities shall have such right. The holders of a
majority in aggregate outstanding principal amount of Junior Subordinated Debt
Securities of each series affected may annul such declaration. In the case of
Corresponding Junior Subordinated Debt Securities, should the holders of such
Corresponding Junior Subordinated Debt Securities fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Related Trust Preferred Securities shall have such
right.
The holders of a majority in aggregate outstanding principal amount of each
series of Junior Subordinated Debt Securities affected thereby may, on behalf
of the holders of all the Junior Subordinated Debt Securities of such series,
waive any default, except a default in the payment of principal or interest
(including any Additional Interest) (unless such default has been cured and a
sum sufficient to pay all matured installments of interest (including any
Additional Interest) and principal due otherwise than by acceleration has been
deposited with the Junior Indenture Trustee) or a default in respect of a
covenant or provision which under the Junior Indenture cannot be modified or
amended without the consent of the holder of each outstanding Junior
Subordinated Debenture of such series. In the case of Corresponding Junior
Subordinated Debt Securities, should the holders of such Corresponding Junior
Subordinated Debt Securities fail to waive such default, the holders of a
majority in aggregate Liquidation Amount of the Related Trust Preferred
Securities shall have such right. The Company is required to file annually with
the Junior Indenture Trustee a certificate as to whether or not the Company is
in compliance with all the conditions and covenants applicable to it under the
Junior Indenture.
In case a Debenture Event of Default shall occur and be continuing as to a
series of Corresponding Junior Subordinated Debt Securities, the Property
Trustee will have the right to declare the principal of and the interest on
such Corresponding Junior Subordinated Debt Securities, and any other amounts
payable under the Junior Indenture, to be forthwith due and payable and to
enforce its other rights as a creditor with respect to such Corresponding
Junior Subordinated Debt Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
If a Debenture Event of Default with respect to a series of Corresponding
Junior Subordinated Debt Securities has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or
principal on such Corresponding Junior Subordinated Debt Securities on the date
such interest or
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principal is due and payable, a holder of the Related Trust Preferred
Securities may institute a legal proceeding directly against the Company for
enforcement of payment to such holder of the principal of or interest
(including any Additional Interest) on such Corresponding Junior Subordinated
Debt Securities having a principal amount equal to the aggregate Liquidation
Amount of the Related Trust Preferred Securities of such holder (a "Direct
Action"). The Company may not amend the Junior Indenture to remove the
foregoing right to bring a Direct Action without the prior written consent of
the holders of all of the Related Trust Preferred Securities outstanding. If
the right to bring a Direct Action is removed, the applicable BNY Trust may
become subject to the reporting obligations under the Exchange Act. The Company
shall have the right under the Junior Indenture to set-off any payment made to
such holder of the Related Trust Preferred Securities by the Company in
connection with a Direct Action.
The holders of such Related Trust Preferred Securities will not be able to
exercise directly any remedies other than those set forth in the preceding
paragraph available to the holders of the Junior Subordinated Debt Securities
unless there shall have been an event of default under the Trust Agreement. See
"Description of Trust Preferred Securities--Events of Default; Notice".
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Junior Indenture provides that the Company shall not consolidate with or
merge into any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless (i)
in case the Company consolidates with or merges into another Person (and the
Company is not the surviving Person) or conveys or transfers its properties and
assets substantially as an entirety to any Person, the successor Person is
organized under the laws of the United States or any state or the District of
Columbia, and such successor Person expressly assumes the Company's obligations
on the Junior Subordinated Debt Securities issued under the Junior Indenture;
(ii) immediately after giving effect thereto, no Debenture Event of Default,
and no event which, after notice or lapse of time or both, would become a
Debenture Event of Default, shall have occurred and be continuing; and (iii)
certain other conditions as prescribed by the Junior Indenture are met.
The general provisions of the Junior Indenture do not afford holders of the
Junior Subordinated Debt Securities protection in the event of a highly
leveraged transaction, takeover, merger, recapitalization or similar
restructuring or change in control or other transaction involving the Company
that may adversely affect holders of the Junior Subordinated Debt Securities.
SATISFACTION AND DISCHARGE
The Junior Indenture provides that when, among other things, all Junior
Subordinated Debt Securities not previously delivered to the Junior Indenture
Trustee for cancellation (i) have become due and payable or (ii) will become
due and payable at their Stated Maturity within one year, and the Company
deposits or causes to be deposited with the Debenture Trustee funds, in trust,
for the purpose and in an amount in the currency or currencies in which the
Junior Subordinated Debt Securities are payable sufficient to pay and discharge
the entire indebtedness on the Junior Subordinated Debt Securities not
previously delivered to the Junior Indenture Trustee for cancellation, for the
principal (and premium, if any) and interest (including any Additional
Interest) to the date of the deposit or to the Stated Maturity, as the case may
be, then the Junior Indenture will cease to be of further effect (except as to
the Company's obligations to pay all other sums due pursuant to the Junior
Indenture and to provide the officers' certificates and opinions of counsel
described therein), and the Company will be deemed to have satisfied and
discharged the Junior Indenture.
DEFEASANCE AND COVENANT DEFEASANCE
The Junior Indenture provides, if such provision is made applicable to the
Junior Subordinated Debt Securities of any series (which will be indicated in
the prospectus supplement applicable thereto), that the Company may elect
either:
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(A) to defease ("defeasance") and be discharged from any and all
obligations with respect to such Junior Subordinated Debt Securities then
outstanding (including the provisions described under "--Subordination" and
except for the obligations to register the transfer or exchange of such
Junior Subordinated Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Junior Subordinated Debt Securities, to maintain
an office or agency in respect of the Junior Subordinated Debt Securities
and to hold moneys for payment in trust) or
(B) to be released from its obligations with respect to such Junior
Subordinated Debt Securities then outstanding under any sections of the
Junior Indenture applicable to such Junior Subordinated Debt Securities
that are subject to covenant defeasance ("covenant defeasance") upon the
deposit with the Debenture Trustee (or other qualifying trustee), in trust
for such purpose, of money, and/or U.S. Government Obligations which
through the payment of principal and interest in accordance with their
terms will provide money in an amount sufficient, without reinvestment, to
pay the principal of (and premium, if any) and interest on such Junior
Subordinated Debt Securities to maturity or redemption, as the case may be,
and any mandatory sinking fund or analogous payments thereon.
As a condition to defeasance or covenant defeasance, the Company must
deliver to the Debenture Trustee an Opinion of Counsel (as specified in the
Junior Indenture) to the effect that the holders of such Junior Subordinated
Debt Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance or covenant
defeasance had not occurred. Such opinion, in the case of defeasance under
clause (A) above, must refer to and be based upon a ruling of the Internal
Revenue Service issued to the Company or published as a revenue ruling or upon
a change in applicable Federal income tax law, in any such case after the date
of the Junior Indenture.
Under current Federal income tax law, defeasance would likely be treated as
a taxable exchange of such Junior Subordinated Debt Securities for interests in
the defeasance trust. As a consequence a holder would recognize gain or loss
equal to the difference between the holder's cost or other tax basis for such
Junior Subordinated Debt Securities and the value of the holder's proportionate
interest in the defeasance trust, and thereafter would be required to include
in income a proportionate share of the income, gain and loss of the defeasance
trust. Under current Federal income tax law, covenant defeasance would
ordinarily not be treated as a taxable exchange of such Junior Subordinated
Debt Securities. Purchasers of such Junior Subordinated Debt Securities should
consult their own advisors with respect to the tax consequences to them of such
defeasance and covenant defeasance, including the applicability and effect of
tax laws other than the Federal income tax law.
The Company may exercise its defeasance option with respect to Junior
Subordinated Debt Securities notwithstanding its prior exercise of its covenant
defeasance option. If the Company exercises its defeasance option, payment of
the Junior Subordinated Debt Securities may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option,
payment of such Junior Subordinated Debt Securities may not be accelerated by
reference to the covenants noted under clause (B) above. However, if such an
acceleration were to occur, the realizable value at the acceleration date of
the money and U.S. Government Obligations in the defeasance trust could be less
than the principal and interest then due on such Junior Subordinated Debt
Securities, in that the required deposit in the defeasance trust is based upon
scheduled cash flows rather than market value, which will vary depending upon
interest rates and other factors.
The prospectus supplement may further describe the provisions, if any,
applicable to defeasance or covenant defeasance with respect to the Junior
Subordinated Debt Securities of a particular series.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable prospectus supplement, the
Junior Subordinated Debt Securities of any series may be convertible or
exchangeable into Junior Subordinated Debt Securities of another series or into
other securities of the Company. The specific terms on which Junior
Subordinated Debt Securities
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of any series may be so converted or exchanged will be set forth in the
applicable prospectus supplement. Such terms may include provisions for
conversion or exchange, either mandatory, at the option of the holder, or at
the option of the Company, in which case the number or principal amount of such
other securities to be received by the holders of Junior Subordinated Debt
Securities would be calculated as of a time and in the manner stated in the
applicable prospectus supplement.
SUBORDINATION
The Junior Subordinated Debt Securities will be subordinate in right of
payment, to the extent set forth in the Junior Indenture, to all Senior Debt
(as defined in the Junior Indenture) of the Company. If the Company defaults in
the payment of any principal, premium, if any, or interest, if any, or any
other amount payable on any Senior Debt when the same becomes due and payable,
whether at maturity or at a date fixed for redemption or by declaration of
acceleration or otherwise, then, unless and until such default has been cured
or waived or has ceased to exist or all Senior Debt has been paid, no direct or
indirect payment (in cash, property, securities, by set-off or otherwise) may
be made or agreed to be made on the Junior Subordinated Debt Securities, or in
respect of any redemption, repayment, retirement, purchase or other acquisition
of any of the Junior Subordinated Debt Securities.
As used in this section, "Senior Debt" means any obligation of the Company
to its creditors, whether now outstanding or subsequently incurred, other than
any obligation as to which, in the instrument creating or evidencing the
obligation or pursuant to which the obligation is outstanding, it is provided
that such obligation is not Senior Debt, but does not include trade accounts
payable and accrued liabilities arising in the ordinary course of business.
Senior Debt includes the Company's Senior Subordinated Debt Securities and any
Senior Subordinated Debt Securities issued in the future with substantially
similar subordination terms, but does not include the Junior Subordinated Debt
Securities of any series or any Junior Subordinated Debt Securities issued in
the future with subordination terms substantially similar to those of the
Junior Subordinated Debt Securities. Substantially all of the existing
indebtedness of the Company constitutes Senior Debt.
Indebtedness of the Company which is senior to the Junior Subordinated
Debentures, at September 30, 1998, totaled approximately $4,407,453,984.
Indebtedness existing under the Junior Indenture, at September 30, 1998,
totaled approximately $1,340,207,500. These amounts do not include indebtedness
of subsidiaries of the Company.
In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(ii) any proceeding for the liquidation, dissolution or other winding up
of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors, or
(iv) any other marshaling of the assets of the Company
then all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made on account of the Junior Subordinated Debt Securities.
In such event, any payment or distribution on account of the Junior
Subordinated Debt Securities, whether in cash, securities or other property,
that would otherwise (but for the subordination provisions) be payable or
deliverable in respect of the Junior Subordinated Debt Securities will be paid
or delivered directly to the holders of Senior Debt in accordance with the
priorities then existing among such holders until all Senior Debt (including
any interest thereon accruing after the commencement of any such proceedings)
has been paid in full.
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In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Debt, the holders of Junior Subordinated Debt
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Junior Subordinated Debt Securities, will be entitled to
be paid from the remaining assets of the Company the amounts at the time due
and owing on the Junior Subordinated Debt Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, will be made on account of any capital stock or obligations of the
Company ranking junior to the Junior Subordinated Debt Securities. If any
payment or distribution on account of the Junior Subordinated Debt Securities
of any character or any security, whether in cash, securities or other property
is received by any holder of any Junior Subordinated Debt Securities in
contravention of any of the terms hereof and before all the Senior Debt has
been paid in full, such payment or distribution or security will be received in
trust for the benefit of, and must be paid over or delivered and transferred
to, the holders of the Senior Debt at the time outstanding in accordance with
the priorities then existing among such holders for application to the payment
of all Senior Debt remaining unpaid to the extent necessary to pay all such
Senior Debt in full. By reason of such subordination, in the event of the
insolvency of the Company, holders of Senior Debt may receive more, ratably,
and holders of the Junior Subordinated Debt Securities may receive less,
ratably, than the other creditors of the Company. Such subordination will not
prevent the occurrence of any Event of Default under the Junior Indenture.
The Junior Subordinated Indenture places no limitation on the amount of
additional Senior Debt that may be incurred by the Company. The Company expects
from time to time to incur additional indebtedness constituting Senior Debt.
TRUST EXPENSES
Pursuant to the Expense Agreement for each series of Corresponding Junior
Subordinated Debt Securities, the Company, as holder of the Trust Common
Securities, will irrevocably and unconditionally agree with each BNY Trust that
holds Junior Subordinated Debt Securities that the Company will pay to such BNY
Trust, and reimburse such BNY Trust for, the full amounts of any costs,
expenses or liabilities of the BNY Trust, other than obligations of the BNY
Trust to pay to the holders of any Trust Preferred Securities or other similar
interests in the BNY Trust the amounts due such holders pursuant to the terms
of the Trust Preferred Securities or such other similar interests, as the case
may be. Such payment obligation will include any such costs, expenses or
liabilities of the BNY Trust that are required by applicable law to be
satisfied in connection with a termination of such BNY Trust.
GOVERNING LAW
The Junior Indenture and the Junior Subordinated Debt Securities will be
governed by and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE JUNIOR INDENTURE TRUSTEE
The Junior Indenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Junior Indenture Trustee is
under no obligation to exercise any of the powers vested in it by the Junior
Indenture at the request of any holder of Junior Subordinated Debt Securities,
unless offered reasonable indemnity by such holder against the costs, expenses
and liabilities which might be incurred thereby. The Junior Indenture Trustee
is not required to expend or risk its own funds or otherwise incur personal
financial liability in the performance of its duties if the Junior Indenture
Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
CORRESPONDING JUNIOR SUBORDINATED DEBT SECURITIES
The Corresponding Junior Subordinated Debt Securities may be issued in one
or more series of Junior Subordinated Debt Securities under the Junior
Indenture with terms corresponding to the terms of a series of Related Trust
Preferred Securities. In that event, concurrently with the issuance of each BNY
Trust's Trust
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Preferred Securities, such BNY Trust will invest the proceeds thereof and the
consideration paid by the Company for the Trust Common Securities of such BNY
Trust in such series of Corresponding Junior Subordinated Debt Securities
issued by the Company to such BNY Trust. Each series of Corresponding Junior
Subordinated Debt Securities will be in the principal amount equal to the
aggregate stated Liquidation Amount of the Related Trust Preferred Securities
and the Trust Common Securities of such BNY Trust and will rank on a parity
with all other series of Junior Subordinated Debt Securities. Holders of the
Related Trust Preferred Securities for a series of Corresponding Junior
Subordinated Debt Securities will have the rights in connection with
modifications to the Junior Indenture or upon occurrence of Debenture Events of
Default, as described under "--Modification of Junior Indenture" and "--
Debenture Events of Default", unless provided otherwise in the prospectus
supplement for such Related Trust Preferred Securities.
Unless otherwise specified in the applicable prospectus supplement, if a Tax
Event or a Capital Treatment Event in respect of a BNY Trust shall occur and be
continuing, the Company may, at its option and subject to prior approval of the
Federal Reserve if then so required under applicable capital guidelines or
policies, redeem the Corresponding Junior Subordinated Debt Securities at any
time within 90 days of the occurrence of such Tax Event or Capital Treatment
Event, in whole but not in part, subject to the provisions of the Junior
Indenture and whether or not such Corresponding Junior Subordinated Debt
Securities are then otherwise redeemable at the option of the Company. Unless
provided otherwise in the related prospectus supplement, the redemption price
for any Corresponding Junior Subordinated Debt Securities shall be equal to
100% of the principal amount of such Corresponding Junior Subordinated Debt
Securities then outstanding plus accrued and unpaid interest to the date fixed
for redemption. For so long as the applicable BNY Trust is the holder of all
the outstanding Corresponding Junior Subordinated Debt Securities, the proceeds
of any such redemption will be used by the BNY Trust to redeem the
corresponding Trust Securities in accordance with their terms. In lieu of such
redemption, the Company has the right to dissolve the applicable BNY Trust and
to distribute such Corresponding Junior Subordinated Debt Securities to the
holders of the related series of Trust Securities in liquidation of such BNY
Trust. See "Description of Trust Preferred Securities--Redemption or Exchange--
Distribution of Corresponding Junior Subordinated Debentures" for a more
detailed discussion. The Company may not redeem a series of Corresponding
Junior Subordinated Debt Securities in part unless all accrued and unpaid
interest has been paid in full on all outstanding Corresponding Junior
Subordinated Debt Securities of such series for all interest periods
terminating on or prior to the Redemption Date.
The Company will covenant in the Junior Indenture, as to each series of
Corresponding Junior Subordinated Debt Securities, that if and so long as (i)
the BNY Trust of the related series of Trust Securities is the holder of all
such Corresponding Junior Subordinated Debt Securities, (ii) a Tax Event in
respect of such BNY Trust has occurred and is continuing and (iii) the Company
has elected to redeem such Corresponding Junior Subordinated Debt Securities or
dissolve such BNY Trust, and has not revoked such election, the Company will
pay to such BNY Trust Additional Sums (as defined under "Description of Trust
Preferred Securities--Redemption or Exchange"). The Company will also covenant,
as to each series of Corresponding Junior Subordinated Debt Securities, (i) to
maintain directly or indirectly 100% ownership of the Trust Common Securities
of the BNY Trust to which such Corresponding Junior Subordinated Debt
Securities have been issued, provided that certain successors which are
permitted pursuant to the Junior Indenture may succeed to the Company's
ownership of the Trust Common Securities, (ii) not to voluntarily terminate,
wind-up or liquidate any BNY Trust, except (a) in connection with a
distribution of Corresponding Junior Subordinated Debt Securities to the
holders of the Trust Preferred Securities in exchange therefor upon liquidation
of such BNY Trust or (b) in connection with certain mergers, consolidations or
amalgamations permitted by the related Trust Agreement, in either such case, if
so specified in the applicable prospectus supplement upon prior approval of the
Federal Reserve, if then so required under applicable Federal Reserve capital
guidelines or policies, and (iii) to use its reasonable efforts, consistent
with the terms and provisions of the related Trust Agreement, to cause such BNY
Trust to be classified as a grantor trust and not as an association taxable as
a corporation for United States Federal income tax purposes.
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DESCRIPTION OF TRUST PREFERRED SECURITIES
This summary of certain provisions of the Trust Preferred Securities and
each Trust Agreement is not complete. For a complete description you should
read each Trust Agreement. Wherever particular defined terms of a Trust
Agreement are referred to herein or in a prospectus supplement, such defined
terms are incorporated herein or therein by reference. The form of the Trust
Agreement has been filed with the SEC as an exhibit to the registration
statement of which this prospectus forms a part.
Pursuant to the terms of the Trust Agreement for each BNY Trust, each BNY
Trust will sell Trust Preferred Securities to the public and Trust Common
Securities to the Company. The Trust Preferred Securities represent preferred
beneficial interests in the BNY Trust that sold them. Holders of such Trust
Preferred Securities will be entitled to receive Distributions and amounts
payable on redemption or liquidation ahead of holders of the Trust Common
Securities. A more complete discussion appears under the heading "--
Subordination of Trust Common Securities". Holders of the Trust Preferred
Securities will also be entitled to other benefits as described in the
corresponding Trust Agreement.
Each of the BNY Trusts is a legally separate entity and the assets of one
are not available to satisfy the obligations of any of the others.
GENERAL
The Trust Preferred Securities of a BNY Trust will rank on a parity, and
payments will be made thereon pro rata, with the Trust Common Securities of
that BNY Trust except as described under "--Subordination of Trust Common
Securities". Legal title to the Corresponding Junior Subordinated Debt
Securities will be held by the Property Trustee in trust for the benefit of the
holders of the Related Trust Preferred Securities and Trust Common Securities.
Each Guarantee Agreement executed by the Company for the benefit of the
holders of a BNY Trust's Trust Preferred Securities will be a Guarantee on a
subordinated basis with respect to the Related Trust Preferred Securities but
will not guarantee payment of Distributions or amounts payable on redemption or
liquidation of such Trust Preferred Securities when the related BNY Trust does
not have funds on hand available to make such payments. See "Description of
Guarantees."
DISTRIBUTIONS
Distributions on the Trust Preferred Securities will be cumulative, will
accrue from the date of original issuance and will be payable on such dates as
specified in the applicable prospectus supplement. In the event that any date
on which Distributions are payable on the Trust Preferred Securities is not a
Business Day (as defined below), payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect to any such delay) except
that, if such Business Day is in the next succeeding calendar year, payment of
such Distribution shall be made on the immediately preceding Business Day, in
either case with the same force and effect as if made on such date (each date
on which Distributions are payable in accordance with the foregoing, a
"Distribution Date"). A "Business Day" shall mean any day other than a Saturday
or a Sunday, or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or a day on
which the corporate trust office of the Property Trustee or the Junior
Indenture Trustee is closed for business.
Each BNY Trust's Trust Preferred Securities represent preferred beneficial
interests in the applicable BNY Trust, and the Distributions on each Preferred
Security will be payable at a rate specified in the applicable prospectus
supplement for such Trust Preferred Securities. Distributions to which holders
of Trust Preferred Securities are entitled will accumulate additional
Distributions at the rate per annum if and as specified in the applicable
prospectus supplement. The term "Distributions" as used herein includes any
such additional Distributions unless otherwise stated.
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If an Extension Period occurs with respect to the Corresponding Junior
Subordinated Debt Securities, distributions on the Related Trust Preferred
Securities will be correspondingly deferred. See "Description of Junior
Subordinated Debt Securities--Option to Defer Interest Payments."
The revenue of each BNY Trust available for distribution to holders of its
Trust Preferred Securities will be limited to payments under the Corresponding
Junior Subordinated Debt Securities in which the BNY Trust will invest the
proceeds from the issuance and sale of its Trust Securities. See "Description
of Junior Subordinated Debt Securities--Corresponding Junior Subordinated Debt
Securities." If the Company does not make interest payments on such
Corresponding Junior Subordinated Debt Securities, the Property Trustee will
not have funds available to pay Distributions on the Related Trust Preferred
Securities. The payment of Distributions (if and to the extent the BNY Trust
has funds legally available for the payment of such Distributions and cash
sufficient to make such payments) is guaranteed by the Company on a limited
basis as set forth herein under "Description of Guarantees".
Distributions on the Trust Preferred Securities will be payable to the
holders thereof as they appear on the register of such BNY Trust on the
relevant record dates, which, as long as the Trust Preferred Securities remain
in book-entry form, will be one Business Day prior to the relevant Distribution
Date. Subject to any applicable laws and regulations and the provisions of the
applicable Trust Agreement, each such payment will be made as described under
"Book-Entry Issuance." In the event any Trust Preferred Securities are not in
book-entry form, the relevant record date for such Trust Preferred Securities
shall be the date at least 15 days prior to the relevant Distribution Date, as
specified in the applicable prospectus supplement.
REDEMPTION OR EXCHANGE
Mandatory Redemption. Upon the repayment or redemption, in whole or in part,
of any Corresponding Junior Subordinated Debt Securities, whether at maturity
or upon earlier redemption as provided in the Junior Indenture, the proceeds
from such repayment or redemption shall be applied by the Property Trustee to
redeem a Like Amount (as defined below) of the Trust Securities, upon not less
than 30 nor more than 60 days notice, at a redemption price (the "Redemption
Price") equal to the aggregate Liquidation Amount of such Trust Securities plus
accumulated but unpaid Distributions thereon to the date of redemption (the
"Redemption Date") and the related amount of the premium, if any, paid by the
Company upon the concurrent redemption of such Corresponding Junior
Subordinated Debt Securities. See "Description of Junior Subordinated Debt
Securities--Redemption". If less than all of any series of Corresponding Junior
Subordinated Debt Securities are to be repaid or redeemed on a Redemption Date,
then the proceeds from such repayment or redemption shall be allocated to the
redemption pro rata of the Related Trust Preferred Securities and the Trust
Common Securities. The amount of premium, if any, paid by the Company upon the
redemption of all or any part of any series of any Corresponding Junior
Subordinated Debt Securities to be repaid or redeemed on a Redemption Date
shall be allocated to the redemption pro rata of the Related Trust Preferred
Securities and the Trust Common Securities.
The Company will have the right to redeem any series of Corresponding Junior
Subordinated Debt Securities (i) on or after such date as may be specified in
the applicable prospectus supplement, in whole at any time or in part from time
to time, (ii) at any time, in whole (but not in part), upon the occurrence of a
Tax Event or Capital Treatment Event or (iii) as may be otherwise specified in
the applicable prospectus supplement, in each case subject to receipt of prior
approval by the Federal Reserve Board if then so required under applicable
Federal Reserve capital guidelines or policies.
Distribution of Corresponding Junior Subordinated Debt Securities. Subject
to the Company having received prior approval of the Federal Reserve Board to
do so if such approval is then required under applicable capital guidelines or
policies of the Federal Reserve Board, the Company has the right at any time to
terminate any BNY Trust and, after satisfaction of the liabilities of creditors
of such BNY Trust as provided by applicable law, cause such Corresponding
Junior Subordinated Debt Securities in respect of the Trust Preferred
Securities and Trust Common Securities issued by such BNY Trust to be
distributed to the holders of such Trust Preferred Securities and Trust Common
Securities in liquidation of such BNY Trust.
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Tax Event or Capital Treatment Event Redemption. If a Tax Event or Capital
Treatment Event in respect of a series of Trust Preferred Securities and Trust
Common Securities shall occur and be continuing, the Company has the right to
redeem the Corresponding Junior Subordinated Debt Securities in whole (but not
in part) and thereby cause a mandatory redemption of such Trust Preferred
Securities and Trust Common Securities in whole (but not in part) at the
Redemption Price within 90 days following the occurrence of such Tax Event or
Capital Treatment Event. In the event a Tax Event or Capital Treatment Event in
respect of a series of Trust Preferred Securities and Trust Common Securities
has occurred and is continuing and the Company does not elect to redeem the
Corresponding Junior Subordinated Debt Securities and thereby cause a mandatory
redemption of such Trust Preferred Securities or to liquidate the related BNY
Trust and cause the Corresponding Junior Subordinated Debt Securities to be
distributed to holders of such Trust Preferred Securities and Trust Common
Securities in exchange therefor upon liquidation of the BNY Trust as described
above, such Trust Preferred Securities will remain outstanding and Additional
Sums may be payable on the Corresponding Junior Subordinated Debt Securities.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by a BNY Trust on the
outstanding Trust Preferred Securities and Trust Common Securities of the BNY
Trust shall not be reduced as a result of any additional taxes, duties and
other governmental charges to which such BNY Trust has become subject as a
result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of any series of Trust
Securities, Trust Securities of such series having a Liquidation Amount (as
defined below) equal to the principal amount of Corresponding Junior
Subordinated Debt Securities to be contemporaneously redeemed in accordance
with the Junior Indenture, the proceeds of which will be used to pay the
Redemption Price of such Trust Securities, and (ii) with respect to a
distribution of Corresponding Junior Subordinated Debt Securities to holders of
any series of Trust Securities in connection with a dissolution or liquidation
of the related BNY Trust, Corresponding Junior Subordinated Debt Securities
having a principal amount equal to the Liquidation Amount of the Trust
Securities in respect of which such distribution is made.
"Liquidation Amount" means the stated liquidation amount per Trust Security
of $25 (or such other stated amount as is set forth in the applicable
prospectus supplement).
After the liquidation date fixed for any distribution of Corresponding
Junior Subordinated Debt Securities for any Trust Preferred Securities:
(i) such Trust Preferred Securities will no longer be deemed to be
outstanding,
(ii) The Depository Trust Company ("DTC") (for a more detailed
explanation of DTC, see "Book-Entry Issuance") or its nominee, as the
record holder of such Trust Preferred Securities, will receive a registered
global certificate or certificates representing the Corresponding Junior
Subordinated Debt Securities to be delivered upon such distribution, and
(iii) any certificates representing such Trust Preferred Securities not
held by DTC or its nominee will be deemed to represent the Corresponding
Junior Subordinated Debt Securities having a principal amount equal to the
stated Liquidation Amount of such Trust Preferred Securities, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such Trust Preferred Securities until such certificates
are presented to the Administrative Trustees or their agent for transfer or
reissuance.
There can be no assurance as to the market prices for the Trust Preferred
Securities or the Corresponding Junior Subordinated Debt Securities that may be
distributed in exchange for Trust Preferred Securities if a dissolution and
liquidation of a BNY Trust were to occur. Accordingly, the Trust Preferred
Securities that an investor may purchase, or the Corresponding Junior
Subordinated Debt Securities that the investor may receive on dissolution and
liquidation of a BNY Trust, may trade at a discount to the price that the
investor paid to purchase the Trust Preferred Securities offered hereby.
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REDEMPTION PROCEDURES
Trust Preferred Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of the Corresponding Junior Subordinated Debt
Securities. Redemptions of the Trust Preferred Securities shall be made and the
Redemption Price shall be payable on each Redemption Date only to the extent
that the related BNY Trust has funds on hand available for the payment of such
Redemption Price. See also "--Subordination of Trust Common Securities".
If the Property Trustee gives a notice of redemption in respect of any Trust
Preferred Securities, then, while such Trust Preferred Securities are in book-
entry form, by 12:00 noon, New York City time, on the Redemption Date, to the
extent funds are available, the Property Trustee will deposit irrevocably with
DTC funds sufficient to pay the applicable Redemption Price and will give DTC
irrevocable instructions and authority to pay the Redemption Price to the
holders of such Trust Preferred Securities. See "Book-Entry Issuance". If such
Trust Preferred Securities are no longer in book-entry form, the Property
Trustee, to the extent funds are available, will irrevocably deposit with the
paying agent for such Trust Preferred Securities funds sufficient to pay the
applicable Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the Redemption Price to the holders thereof
upon surrender of their certificates evidencing such Trust Preferred
Securities. Notwithstanding the foregoing, Distributions payable on or prior to
the Redemption Date for any Trust Preferred Securities called for redemption
shall be payable to the holders of such Trust Preferred Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of the holders of such Trust Preferred
Securities so called for redemption will cease, except the right of the holders
of such Trust Preferred Securities to receive the Redemption Price and any
Distribution payable in respect of the Trust Preferred Securities on or prior
to the Redemption Date, but without interest on such Redemption Price, and such
Trust Preferred Securities will cease to be outstanding. In the event that any
date fixed for redemption of Preferred Securities is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
Trust Preferred Securities called for redemption is improperly withheld or
refused and not paid either by a BNY Trust or by the Company pursuant to the
related Guarantee as described under "Description of Guarantees", Distributions
on such Trust Preferred Securities will continue to accrue at the then
applicable rate from the Redemption Date originally established by such BNY
Trust for such Trust Preferred Securities to the date such Redemption Price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States
Federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Trust Preferred Securities by tender, in
the open market or by private agreement.
Payment of the Redemption Price on the Trust Preferred Securities and any
distribution of Corresponding Junior Subordinated Debt Securities to holders of
Trust Preferred Securities shall be made to the applicable record holders
thereof as they appear on the register for such Trust Preferred Securities on
the relevant record date, which, as long as the Trust Preferred Securities
remain in book-entry form, shall be one Business Day prior to the relevant
Redemption Date or liquidation date, as applicable; provided, however, that in
the event that such Trust Preferred Securities are not in book-entry form, the
relevant record date for such Trust Preferred Securities shall be a date at
least 15 days prior to the Redemption Date or liquidation date, as applicable,
as specified in the applicable prospectus supplement.
If less than all of the Trust Preferred Securities and Trust Common
Securities issued by a BNY Trust are to be redeemed on a Redemption Date, then
the aggregate Liquidation Amount of such Trust Preferred Securities and Trust
Common Securities to be redeemed shall be allocated pro rata to the Trust
Preferred
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Securities and the Trust Common Securities based upon the relative Liquidation
Amounts of such classes. The particular Trust Preferred Securities to be
redeemed shall be selected on a pro rata basis not more than 60 days prior to
the Redemption Date by the Property Trustee from the outstanding Trust
Preferred Securities not previously called for redemption, by such method as
the Property Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to $25 or an integral multiple
of $25 in excess thereof, unless a different amount is specified in the
applicable prospectus supplement) of the Liquidation Amount of Preferred
Securities of a denomination larger than $25 (or such other denomination as is
specified in the applicable prospectus supplement). The Property Trustee shall
promptly notify the Securities Registrar in writing of the Trust Preferred
Securities selected for redemption and, in the case of any Trust Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to
be redeemed. For all purposes of each Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Trust
Preferred Securities shall relate, in the case of any Trust Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
aggregate Liquidation Amount of Trust Preferred Securities which has been or is
to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities to be
redeemed at its registered address. Unless the Company defaults in payment of
the Redemption Price on the Corresponding Junior Subordinated Debt Securities,
on and after the Redemption Date interest will cease to accrue on such Junior
Subordinated Debt Securities or portions thereof (and Distributions will cease
to accrue on the Related Trust Preferred Securities or portions thereof) called
for redemption.
SUBORDINATION OF TRUST COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each BNY Trust's
Trust Preferred Securities and Trust Common Securities, as applicable, shall be
made pro rata based on the Liquidation Amount of such Trust Preferred
Securities and Trust Common Securities; provided, however, that if on any
Distribution Date, Redemption Date or liquidation date a Debenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, or Liquidation Distribution (as defined below) in
respect of, any of such BNY Trust's Trust Common Securities, and no other
payment on account of the redemption, liquidation or other acquisition of such
Trust Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of such BNY Trust's outstanding
Trust Preferred Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price the full amount of
such Redemption Price on all of such BNY Trust's outstanding Preferred
Securities then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation Distribution on
all outstanding Trust Preferred Securities, shall have been made or provided
for, and all funds available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions on, or Redemption Price of,
such BNY Trust's Trust Preferred Securities then due and payable.
In the case of any event of default under the applicable Trust Agreement
resulting from a Debenture Event of Default, the Company as holder of such BNY
Trust's Trust Common Securities will be deemed to have waived any right to act
with respect to any such Event of Default under the applicable Trust Agreement
until the effect of all such Events of Default with respect to such Trust
Preferred Securities have been cured, waived or otherwise eliminated. Until any
such Events of Default under the applicable Trust Agreement with respect to the
Trust Preferred Securities have been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the holders of such Trust
Preferred Securities and not on behalf of the Company as holder of such BNY
Trust's Trust Common Securities, and only the holders of such Trust Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
Pursuant to each Trust Agreement, each BNY Trust shall terminate on the
first to occur of:
(i) the expiration of its term;
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(ii) certain events of bankruptcy, dissolution or liquidation of the
holder of the Trust Common Securities;
(iii) the distribution of a Like Amount of the Corresponding Junior
Subordinated Debt Securities to the holders of its Trust Securities, if the
Company, as Depositor, has given written direction to the Property Trustee
to terminate such BNY Trust (subject to the Company having received prior
approval of the Federal Reserve if then so required under applicable
capital guidelines or policies);
(iv) redemption of all of such BNY Trust's Preferred Securities as
described under "--Redemption or Exchange--Mandatory Redemption"; and
(v) the entry of an order for the dissolution of such BNY Trust by a
court of competent jurisdiction.
If an early termination occurs as described in clause (ii), (iii) or (v)
above, the relevant BNY Trust shall be liquidated by the related BNY Trust
Trustees as expeditiously as such BNY Trust Trustees determine to be possible
by distributing, after satisfaction of liabilities to creditors of such BNY
Trust as provided by applicable law, to the holders of such Trust Securities in
exchange therefor a Like Amount of the Corresponding Junior Subordinated Debt
Securities, unless such distribution is determined by the Property Trustee not
to be practical, in which event such holders will be entitled to receive out of
the assets of such BNY Trust available for distribution to holders, after
satisfaction of liabilities to creditors of such BNY Trust as provided by
applicable law, an amount equal to, in the case of holders of Trust Preferred
Securities, the aggregate of the Liquidation Amount plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can be paid only
in part because such BNY Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by
such BNY Trust on its Trust Preferred Securities shall be paid on a pro rata
basis. The holder(s) of such BNY Trust's Trust Common Securities will be
entitled to receive distributions upon any such liquidation pro rata with the
holders of its Trust Preferred Securities, except that if a Debenture Event of
Default has occurred and is continuing, the Trust Preferred Securities shall
have a priority over the Trust Common Securities.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under each
Trust Agreement with respect to the Trust Preferred Securities issued
thereunder (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default under the Junior
Indenture (see "Description of Junior Subordinated Debt Securities--
Debenture Events of Default"); or
(ii) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(iii) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the BNY Trust Trustees in such Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the defaulting BNY
Trust Trustee or Trustees by the holders of at least 25% in aggregate
Liquidation Amount of the outstanding Trust Preferred Securities of the
applicable BNY Trust, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" under such Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to appoint a
successor Property Trustee within 90 days thereof.
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Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of such BNY Trust's Trust
Preferred Securities, the Administrative Trustees and the Company, as
Depositor, unless such Event of Default shall have been cured or waived. The
Company, as Depositor, and the Administrative Trustees are required to file
annually with the Property Trustee a certificate as to whether or not they are
in compliance with all the conditions and covenants applicable to them under
each Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the Trust
Preferred Securities shall have a preference over the Trust Common Securities
as described above. See "--Liquidation Distribution Upon Termination." The
existence of an Event of Default does not entitle the holders of Trust
Preferred Securities to accelerate the maturity thereof.
REMOVAL OF BNY TRUST TRUSTEES
Unless a Debenture Event of Default shall have occurred and be continuing,
any BNY Trust Trustee may be removed at any time by the holder of the Trust
Common Securities. If a Debenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed at
such time by the holders of a majority in Liquidation Amount of the outstanding
Trust Preferred Securities. In no event will the holders of the Trust Preferred
Securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Company as the holder of the Trust Common Securities. No resignation or removal
of a BNY Trust Trustee and no appointment of a successor trustee shall be
effective until the acceptance of appointment by the successor trustee in
accordance with the provisions of the applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be continuing, at any
time or from time to time, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Company, as the holder of the Trust
Common Securities, and the Administrative Trustees shall have power to appoint
one or more persons either to act as a co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to act as separate
trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such person or
persons in such capacity any property, title, right or power deemed necessary
or desirable, subject to the provisions of the applicable Trust Agreement. In
case a Debenture Event of Default has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment.
MERGER OR CONSOLIDATION OF BNY TRUST TRUSTEES
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
such Trustee, shall be the successor of such Trustee under each Trust
Agreement, provided such Person shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE BNY TRUSTS
A BNY Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except as
described below. A BNY Trust may, at the request of the Company, with the
consent of the Administrative Trustees and without the consent of the holders
of the related Trust Preferred Securities, merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, that:
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(i) such successor entity either (a) expressly assumes all of the
obligations of such BNY Trust with respect to such Trust Preferred
Securities or (b) substitutes for such Trust Preferred Securities other
securities having substantially the same terms as such Trust Preferred
Securities (the "Successor Securities") so long as the Successor Securities
rank the same as such Trust Preferred Securities in priority with respect
to distributions and payments upon liquidation, redemption and otherwise,
(ii) the Company expressly appoints a trustee of such successor entity
possessing the same powers and duties as the Property Trustee as the holder
of the Corresponding Junior Subordinated Debt Securities,
(iii) the Successor Securities are listed, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which such Trust Preferred Securities are
then listed, if any,
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Trust Preferred Securities to be
downgraded by any nationally recognized statistical rating organization
which assigns ratings to the Trust Preferred Securities,
(v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the material rights,
preferences and privileges of the holders of the Preferred Securities
(including any Successor Securities) in any material respect,
(vi) such successor entity has a purpose identical to that of the BNY
Trust,
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Company has received an opinion from
independent counsel to the BNY Trust experienced in such matters to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the material
rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the BNY Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act"),
and
(viii) the Company or any permitted successor or assignee owns all of the
Trust Common Securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at
least to the extent provided by the related Guarantee.
Notwithstanding the foregoing, a BNY Trust shall not, except with the
consent of holders of 100% in Liquidation Amount of the related Trust Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the BNY Trust or the successor entity to be classified as an association
taxable as a corporation or as other than a grantor trust for United States
Federal income tax purposes.
There are no provisions that afford holders of any Trust Preferred
Securities protection in the event of a sudden and dramatic decline in credit
quality of the Company resulting from any highly leveraged transaction,
takeover, merger, recapitalization or similar restructuring or change in
control of the Company. Nor are there any provisions that require the
repurchase of any Trust Preferred Securities upon a change in control of the
Company.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Description of Guarantees--Amendments
and Assignment" and as otherwise required by law and the applicable Trust
Agreement, the holders of the Trust Preferred Securities will have no voting
rights.
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Each Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Trust Preferred Securities (i) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent with
any other provision, or to make any other provisions with respect to matters or
questions arising under such Trust Agreement, which shall not be inconsistent
with the other provisions of such Trust Agreement provided that any such
amendment does not adversely affect the interests of any holder of Trust
Securities, or (ii) to modify, eliminate or add to any provisions of such Trust
Agreement to such extent as shall be necessary to ensure that the relevant BNY
Trust will be classified for United States Federal income tax purposes as a
grantor trust or as other than an association taxable as a corporation at all
times that any Trust Securities are outstanding, to ensure that the
Corresponding Junior Subordinated Debt Securities will be treated as
indebtedness of the Company or to ensure that such BNY Trust will not be
required to register as an "investment company" under the Investment Company
Act. Any amendments of such Trust Agreement shall become effective when notice
thereof is given to the holders of Trust Securities. Each Trust Agreement may
be amended by the related BNY Trust Trustees and the Company with (i) the
consent of holders representing not less than a majority (based upon
Liquidation Amounts) of the outstanding Trust Securities, and (ii) receipt by
such BNY Trust Trustees of an opinion of counsel to the effect that such
amendment or the exercise of any power granted to such BNY Trust Trustees in
accordance with such amendment will not cause such BNY Trust to be taxable as a
corporation or affect such BNY Trust's status as a grantor trust for United
States Federal income tax purposes or such BNY Trust's exemption from status as
an "investment company" under the Investment Company Act, provided that without
the consent of each holder of Trust Securities, such Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution on the Trust
Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date
or (ii) restrict the right of a holder of Trust Securities to institute suit
for the enforcement of any such payment on or after such date.
So long as any Corresponding Junior Subordinated Debt Securities are held by
the Property Trustee, the related BNY Trust Trustees shall not (i) direct the
time, method and place of conducting any proceeding for any remedy available to
the Junior Indenture Trustee, or executing any trust or power conferred on the
Property Trustee with respect to such Corresponding Junior Subordinated Debt
Securities, (ii) waive any past default that is waivable under the Junior
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Debt Securities shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Junior Indenture or such Corresponding Junior Subordinated Debt Securities,
where such consent shall be required, without, in each case, obtaining the
prior approval of the holders of a majority in aggregate Liquidation Amount of
all outstanding Trust Preferred Securities; provided, however, that where a
consent under the Junior Indenture would require the consent of each holder of
Corresponding Junior Subordinated Debt Securities affected thereby, no such
consent shall be given by the Property Trustee without the prior consent of
each holder of the Related Trust Preferred Securities. The BNY Trust Trustees
shall not revoke any action previously authorized or approved by a vote of the
holders of the Trust Preferred Securities except by subsequent vote of the
holders of such Trust Preferred Securities. The Property Trustee shall notify
each holder of Trust Preferred Securities of any notice of default with respect
to the Corresponding Junior Subordinated Debt Securities. In addition to
obtaining the foregoing approvals of the holders of the Trust Preferred
Securities, prior to taking any of the foregoing actions, the BNY Trust
Trustees shall obtain an opinion of counsel experienced in such matters to the
effect that the BNY Trust will not be classified as an association taxable as a
corporation for United States Federal income tax purposes on account of such
action and such action would not cause the BNY Trust to be classified as other
than a grantor trust for United States Federal income tax purposes.
Any required approval of holders of Trust Preferred Securities may be given
at a meeting of holders of Trust Preferred Securities convened for such purpose
or pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Trust Preferred Securities are entitled to vote, or
of any matter upon which action by written consent of such holders is to be
taken, to be given to each holder of record of Trust Preferred Securities in
the manner set forth in each Trust Agreement.
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No vote or consent of the holders of Trust Preferred Securities will be
required for a BNY Trust to redeem and cancel its Trust Preferred Securities in
accordance with the applicable Trust Agreement.
Notwithstanding that holders of Trust Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Company, the BNY Trust Trustees or
any affiliate of the Company or any BNY Trust Trustees, shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
GLOBAL TRUST PREFERRED SECURITIES
Unless otherwise set forth in a prospectus supplement, any Trust Preferred
Securities will be represented by fully registered global certificates issued
as global Trust Preferred Securities to be deposited with a depositary with
respect to that series, instead of paper certificates issued to each individual
holder. The depositary arrangements that will apply, including the manner in
which principal of and premium, if any, and interest on global Trust Preferred
Securities and other payments will be payable are discussed in more detail
under the heading "Book-Entry Issuance."
PAYMENT AND PAYING AGENCY
Payments in respect of Trust Preferred Securities represented by global
certificates shall be made to DTC as described under "Book-Entry Issuance." If
any Trust Preferred Securities are not represented by global certificates, such
payments shall be made by check mailed to the address of the holder entitled
thereto as such address shall appear on the Register. Unless otherwise
specified in the applicable prospectus supplement, the paying agent (the
"Paying Agent") shall initially be the Property Trustee and any co-paying agent
chosen by the Property Trustee and acceptable to the Administrative Trustees
and the Company. The Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Property Trustee and the Company. In the
event that the Property Trustee shall no longer be the Paying Agent, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company acceptable to the Administrative Trustees and the Company) to act
as Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable prospectus supplement, the
Property Trustee will act as registrar and transfer agent for the Preferred
Securities.
Registration of transfers of Trust Preferred Securities will be effected
without charge by or on behalf of each BNY Trust, but upon payment of any tax
or other governmental charges that may be imposed in connection with any
transfer or exchange. The BNY Trusts will not be required to register or cause
to be registered the transfer of their Trust Preferred Securities after such
Trust Preferred Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of an
Event of Default, undertakes to perform only such duties as are specifically
set forth in each Trust Agreement and, after such Event of Default, must
exercise the same degree of care and skill as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision, the
Property Trustee is under no obligation to exercise any of the powers vested in
it by the applicable Trust Agreement at the request of any holder of Trust
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
the applicable Trust Agreement or is unsure of the application of any provision
of the applicable Trust Agreement, and the matter is not one on which holders
of Trust Preferred Securities are entitled under such Trust Agreement to vote,
then
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the Property Trustee shall take such action as is directed by the Company and
if not so directed, shall take such action as it deems advisable and in the
best interests of the holders of the Trust Securities and will have no
liability except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the BNY Trusts in such a way that no BNY Trust will
be deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association taxable as a corporation
or as other than a grantor trust for United States Federal income tax purposes
and so that the Corresponding Junior Subordinated Debt Securities will be
treated as indebtedness of the Company for United States Federal income tax
purposes. In this connection, the Company and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
certificate of trust of each BNY Trust or each Trust Agreement, that the
Company and the Administrative Trustees determine in their discretion to be
necessary or desirable for such purposes. The Company and the BNY Trustees may
amend each Trust Agreement without the consent of the holders of the related
Trust Preferred Securities and even if such amendment would adversely affect
the interests of such holders, as shall be necessary to ensure that each BNY
Trust will be classified for United States Federal income tax purposes as a
grantor trust and will not be required to register as an investment company
under the Investment Company Act and to ensure that the Corresponding Junior
Subordinated Debentures will be treated as indebtedness of the Company. A more
detailed discussion appears under the heading "--Voting Rights; Amendment of
Each Trust Agreement."
Holders of the Trust Preferred Securities have no preemptive or similar
rights.
No BNY Trust may borrow money or issue debt or mortgage or pledge any of its
assets.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Company at the same time
each BNY Trust issues its Trust Preferred Securities. Each Guarantee is for the
benefit of the holders from time to time of such Trust Preferred Securities.
The First National Bank of Chicago will act as indenture trustee ("Guarantee
Trustee") under each Guarantee for the purposes of compliance with the Trust
Indenture Act and each Guarantee will be qualified as an indenture under the
Trust Indenture Act. The Guarantee Trustee will hold each Guarantee for the
benefit of the holders of the related BNY Trust's Trust Preferred Securities.
This summary of certain terms and provisions of the Guarantees, is not
complete. For a complete description you should read each Guarantee. The form
of the Guarantee has been filed as an exhibit to the registration statement of
which this prospectus forms a part. The Junior Indenture is qualified under the
Trust Indenture Act.
When we refer to Trust Preferred Securities we mean the Trust Preferred
Securities issued by the related BNY Trust to which a Guarantee relates.
GENERAL
The Company will irrevocably agree to pay in full on a subordinated basis,
to the extent set forth herein, the Guarantee Payments (as defined below) to
the holders of the Trust Preferred Securities, as and when due, regardless of
any defense, right of set-off or counterclaim that such BNY Trust may have or
assert other than the defense of payment. The following payments with respect
to the Trust Preferred Securities, to the extent not paid by or on behalf of
the related BNY Trust (the "Guarantee Payments"), will be subject to the
related Guarantee:
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(i) any accumulated and unpaid Distributions required to be paid on such
Trust Preferred Securities, to the extent that such BNY Trust has funds on
hand available therefor at such time,
(ii) the Redemption Price with respect to any Trust Preferred Securities
called for redemption, to the extent that such BNY Trust has funds on hand
available therefor at such time, or
(iii) upon a voluntary or involuntary dissolution, winding up or
liquidation of such BNY Trust (unless the Corresponding Junior Subordinated
Debt Securities are distributed to holders of such Trust Preferred
Securities in exchange therefor), the lesser of (a) the Liquidation
Distribution and (b) the amount of assets of such BNY Trust remaining
available for distribution to holders of Trust Preferred Securities after
satisfaction of liabilities to creditors of such BNY Trust as required by
applicable law.
The Company's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Company to the holders of the
applicable Trust Preferred Securities or by causing the BNY Trust to pay such
amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a subordinated basis of
the related BNY Trust's obligations under the Trust Preferred Securities, but
will apply only to the extent that such related BNY Trust has funds sufficient
to make such payments, and is not a guarantee of collection.
If the Company does not make interest payments on the Corresponding Junior
Subordinated Debt Securities held by the BNY Trust, the BNY Trust will not be
able to pay Distributions on the Trust Preferred Securities and will not have
funds legally available therefor. Each Guarantee will rank subordinate and
junior in right of payment to all Senior Debt of the Company. See "--Status of
the Guarantees." Because the Company is a holding company, the right of the
Company to participate in any distribution of assets of any subsidiary upon
such subsidiary's liquidation or reorganization or otherwise, is subject to the
prior claims of creditors of that subsidiary, except to the extent the Company
may itself be recognized as a creditor of that subsidiary. Accordingly, the
Company's obligations under the Guarantees will be effectively subordinated to
all existing and future liabilities of the Company's subsidiaries, and
claimants should look only to the assets of the Company for payments
thereunder. See "The Company." Except as otherwise provided in the applicable
prospectus supplement, the Guarantees do not limit the incurrence or issuance
of other secured or unsecured debt of the Company, including Senior Debt,
whether under the Junior Indenture, any other existing indenture or any other
indenture that the Company may enter into in the future or otherwise.
The Company has, through the applicable Guarantee, the applicable Trust
Agreement, the applicable series of Corresponding Junior Subordinated Debt
Securities, the Junior Indenture and the applicable Expense Agreement, taken
together, fully, irrevocably and unconditionally guaranteed all of the related
BNY Trust's obligations under the related Trust Preferred Securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the combined operation
of these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of a BNY Trust's obligations under its related Trust
Preferred Securities. See "Relationship Among the Trust Preferred Securities,
the Corresponding Junior Subordinated Debt Securities and the Guarantees."
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Debt of the
Company in the same manner as Corresponding Junior Subordinated Debt
Securities.
Each Guarantee will rank equally with all other Guarantees issued by the
Company. Each Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against any other person or entity). Each
Guarantee will be held for the benefit of the holders of the related Trust
Preferred Securities. Each Guarantee will not be discharged except by payment
of the
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Guarantee Payments in full to the extent not paid by the BNY Trust or upon
distribution to the holders of the Trust Preferred Securities of the
Corresponding Junior Subordinated Debt Securities. None of the Guarantees
places a limitation on the amount of additional Senior Debt that may be
incurred by the Company. The Company expects from time to time to incur
additional indebtedness constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the material rights of holders of the related Trust Preferred Securities (in
which case no vote will be required), no Guarantee may be amended without the
prior approval of the holders of not less than a majority of the aggregate
Liquidation Amount of such outstanding Trust Preferred Securities. The manner
of obtaining any such approval will be as set forth under "Description of Trust
Preferred Securities--Voting Rights; Amendment of Each Trust Agreement." All
guarantees and agreements contained in each Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Company and
shall inure to the benefit of the holders of the related Trust Preferred
Securities then outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the failure of the
Company to perform any of its payment obligations thereunder or to perform any
non-payment obligations if such non-payment default remains unremedied for 30
days. The holders of not less than a majority in aggregate Liquidation Amount
of the related Trust Preferred Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of such Guarantee or to direct the exercise of any
trust or power conferred upon the Guarantee Trustee under such Guarantee.
Any holder of the Trust Preferred Securities may institute a legal
proceeding directly against the Company to enforce its rights under such
Guarantee without first instituting a legal proceeding against the BNY Trust,
the Guarantee Trustee or any other person or entity.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with
all the conditions and covenants applicable to it under the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Company in performance of any Guarantee, undertakes to perform
only such duties as are specifically set forth in each Guarantee and, after
default with respect to any Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or
her own affairs. Subject to this provision, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by any Guarantee at the
request of any holder of any Trust Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the related Trust Preferred Securities,
upon full payment of the amounts payable upon liquidation of the related BNY
Trust or upon distribution of Corresponding Junior Subordinated Debt Securities
to the holders of the related Trust Preferred Securities in exchange therefor.
Each Guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of the related Trust Preferred Securities
must restore payment of any sums paid under such Trust Preferred Securities or
such Guarantee.
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GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
THE EXPENSE AGREEMENT
Pursuant to the Expense Agreement that will be entered into by the Company
under each Trust Agreement (the "Expense Agreement"), the Company will, as
holder of the Trust Common Securities, irrevocably and unconditionally
guarantee to each Person or entity to whom the BNY Trust becomes indebted or
liable, the full payment of any costs, expenses or liabilities of the BNY
Trust, other than obligations of the BNY Trust to pay to the holders of any
Trust Preferred Securities or other similar interests in the BNY Trust of the
amounts due such holders pursuant to the terms of the Trust Preferred
Securities or such other similar interests, as the case may be. The Expense
Agreement will be enforceable by third parties.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE CORRESPONDING JUNIOR
SUBORDINATED DEBT SECURITIES, THE EXPENSE AGREEMENT AND THE GUARANTEES
This section relates to Junior Subordinated Debt Securities which are issued
by a BNY Trust and accordingly are Corresponding Junior Subordinated Debt
Securities for a series of Related Trust Preferred Securities.
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Trust Preferred
Securities (to the extent the related BNY Trust has funds available for the
payment of such Distributions) are irrevocably guaranteed by the Company as and
to the extent set forth under "Description of Guarantees." Taken together, the
Company's obligations under each series of Corresponding Junior Subordinated
Debt Securities, the Junior Indenture, the related Trust Agreement, the related
Expense Agreement, and the related Guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of Distributions and other
amounts due on the Related Trust Preferred Securities. No single document
standing alone or operating in conjunction with fewer than all of the other
documents constitutes such guarantee. It is only the combined operation of
these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the related BNY Trust's obligations under the
Related Trust Preferred Securities. If and to the extent that the Company does
not make payments on any series of Corresponding Junior Subordinated Debt
Securities, such BNY Trust will not pay Distributions or other amounts due on
its Related Trust Preferred Securities. The Guarantees do not cover payment of
Distributions when the related BNY Trust does not have sufficient funds to pay
such Distributions. In such event, the remedy of a holder of any Trust
Preferred Securities is to institute a legal proceeding directly against the
Company pursuant to the terms of the Junior Indenture for enforcement of
payment of amounts of such Distributions to such holder after the applicable
due dates. The obligations of the Company under each Guarantee are subordinate
and junior in right of payment to all Senior Debt of the Company.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on each
series of Corresponding Junior Subordinated Debt Securities, such payments will
be sufficient to cover Distributions and other payments due on the Related
Trust Preferred Securities, primarily because:
(i) the aggregate principal amount of each series of Corresponding Junior
Subordinated Debt Securities will be equal to the sum of the aggregate
stated Liquidation Amount of the Related Trust Preferred Securities and
related Trust Common Securities;
(ii) the interest rate and interest and other payment dates on each
series of Corresponding Junior Subordinated Debt Securities will match the
Distribution rate and Distribution and other payment dates for the Related
Trust Preferred Securities;
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(iii) the Company shall pay, under the related Expense Agreement, for all
and any costs, expenses and liabilities of such BNY Trust except the BNY
Trust's obligations to holders of its Trust Preferred Securities under such
Trust Preferred Securities; and
(iv) each Trust Agreement provides that the BNY Trust will not engage in
any activity that is not consistent with the limited purposes of such BNY
Trust.
Notwithstanding anything to the contrary in the Junior Indenture, the
Company has the right to set-off any payment it is otherwise required to make
thereunder with and to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the related
Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF TRUST PREFERRED SECURITIES
A holder of any related Trust Preferred Security may institute a legal
proceeding directly against the Company to enforce its rights under the related
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the related BNY Trust or any other person or entity.
A default or event of default under any Senior Debt of the Company would not
constitute a default or Event of Default under the Junior Indenture. However,
in the event of payment defaults under, or acceleration of, Senior Debt of the
Company, the subordination provisions of the Junior Indenture provide that no
payments may be made in respect of the Corresponding Junior Subordinated Debt
Securities until such Senior Debt has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required payments on any
series of Corresponding Junior Subordinated Debt Securities would constitute an
Event of Default under the Junior Indenture.
LIMITED PURPOSE OF BNY TRUSTS
Each BNY Trust's Trust Preferred Securities evidence a preferred and
undivided beneficial interest in such BNY Trust, and each BNY Trust exists for
the sole purpose of issuing its Trust Preferred Securities and Trust Common
Securities and investing the proceeds thereof in Corresponding Junior
Subordinated Debt Securities and engaging in only those other activities
necessary or incidental thereto. A principal difference between the rights of a
holder of a Trust Preferred Security and a holder of a Corresponding Junior
Subordinated Debenture is that a holder of a Corresponding Junior Subordinated
Debenture is entitled to receive from the Company the principal amount of and
interest accrued on Corresponding Junior Subordinated Debt Securities held,
while a holder of Trust Preferred Securities is entitled to receive
Distributions from such BNY Trust (or from the Company under the applicable
Guarantee) if and to the extent such BNY Trust has funds available for the
payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
any BNY Trust not involving the distribution of the Corresponding Junior
Subordinated Debt Securities, the holders of the related Trust Preferred
Securities will be entitled to receive, out of the assets held by such BNY
Trust, the Liquidation Distribution in cash. See "Description of Trust
Preferred Securities--Liquidation Distribution Upon Termination." Upon any
voluntary or involuntary liquidation or bankruptcy of the Company, the Property
Trustee, as holder of the Corresponding Junior Subordinated Debt Securities,
would be a subordinated creditor of the Company, subordinated in right of
payment to all Senior Debt as set forth in the Junior Indenture, but entitled
to receive payment in full of principal and interest, before any stockholders
of the Company receive payments or distributions. Since the Company is the
guarantor under each Guarantee and has agreed, under the related Expense
Agreement, to pay for all costs, expenses and liabilities of each BNY Trust
(other than the BNY Trust's obligations to the holders of its Trust Preferred
Securities), the positions of a holder of such Trust Preferred Securities and a
holder of such Corresponding Junior Subordinated Debt Securities relative to
other
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creditors and to stockholders of the Company in the event of liquidation or
bankruptcy of the Company are expected to be substantially the same.
DESCRIPTION OF PREFERRED STOCK
SUMMARY
The following summary contains a description of certain general terms of the
Preferred Stock. The particular terms of any series of preferred stock being
offered by us under this shelf registration (the "Preferred Stock") will be
described in the prospectus supplement relating to that series of Preferred
Stock. Those terms may include:
. the specific title and stated value,
. number of shares or fractional interests therein,
. any dividend, liquidation, redemption, voting and other rights,
. the terms for conversion into Common Stock or other preferred stock or
for exchange for Common Stock or other Debt Securities,
. the securities exchanges, if any, on which such Preferred Stock is to be
listed,
. the initial public offering price, and the number of shares, if any, to
be purchased by the underwriters.
The terms of any series of Preferred Stock being offered may differ from the
terms set forth below. If the terms differ, those terms will also be disclosed
in the prospectus supplement relating to that series of Preferred Stock. The
following summary is not complete. You should refer to the Certificate of
Amendment to the Company's Certificate of Incorporation relating to the series
of the Preferred Stock for the complete terms of that Preferred Stock. That
Certificate of Amendment will be filed with the SEC promptly after the offering
of the Preferred Stock.
GENERAL
Under the Company's Certificate of Incorporation, the Board of Directors of
the Company is authorized, without further stockholder action, to provide for
the issuance of up to 5,000,000 shares of Preferred Stock, without par value,
(the "No Par Preferred Stock") and 5,000,000 shares of Class A Preferred Stock,
par value $2.00 per share (the "Class A Preferred Stock" and together with the
No Par Preferred Stock, being collectively referred to as the "Preferred
Stock"). The Preferred Stock may be issued in one or more series, with such
designations of titles; dividend rates; special or relative rights in the event
of liquidation, distribution or sale of assets or dissolution or winding up of
the Company; any sinking fund provisions; any redemption or purchase account
provisions; any conversion provisions; and any voting rights thereof, as shall
be set forth as and when established by the Board of Directors of the Company.
The shares of any series of Preferred Stock will be, when issued, fully paid
and non-assessable and holders thereof will have no preemptive rights in
connection therewith.
The liquidation preference of any series of Preferred Stock is not
necessarily indicative of the price at which shares of such series of Preferred
Stock will actually trade at or after the time of their issuance. The market
price of any series of Preferred Stock can be expected to fluctuate with
changes in market and economic conditions, the financial condition and
prospects of the Company and other factors that generally influence the market
prices of securities.
RANK
Any series of the No Par Preferred Stock or Class A Preferred Stock will,
with respect to dividend rights and rights on liquidation, winding up and
dissolution rank (i) senior to all classes of common stock of the
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Company and with all equity securities issued by the Company, the terms of
which specifically provide that such equity securities will rank junior to the
No Par Preferred Stock or Class A Preferred Stock, as the case may be
(collectively referred to as the "Junior Securities"); (ii) on a parity with
all equity securities issued by the Company, the terms of which specifically
provide that such equity securities will rank on a parity with the No Par
Preferred Stock or Class A Preferred Stock, as the case may be, including the
Company's 7.75% Cumulative Convertible Preferred Stock (collectively referred
to as the "Parity Securities"); and (iii) junior to all equity securities
issued by the Company, the terms of which specifically provide that such equity
securities will rank senior to the No Par Preferred Stock or Class A Preferred
Stock, as the case may be (collectively referred to as the "Senior
Securities"). All shares of No Par Preferred Stock and Class A Preferred Stock
will, regardless of series, be of equal rank. As used in any Certificate of
Amendment for these purposes, the term "equity securities" will not include
debt securities convertible into or exchangeable for equity securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive, when,
as and if declared by the Board of Directors of the Company out of funds
legally available therefor, cash dividends at such rates and on such dates as
are set forth in the prospectus supplement relating to such series of Preferred
Stock. Dividends will be payable to holders of record of Preferred Stock as
they appear on the books of the Company (or, if applicable, the records of the
Depositary referred to below under "Description of Depositary Shares") on such
record dates as shall be fixed by the Board of Directors. Dividends on any
series of Preferred Stock may be cumulative or non-cumulative.
The Company's ability to pay dividends on its Preferred Stock and Common
Stock is subject to policies established by the Federal Reserve. See "Certain
Regulatory Considerations--Dividends."
No full dividends may be declared or paid or funds set apart for the payment
of dividends on any Parity Securities unless dividends shall have been paid or
set apart for such payment on the No Par Preferred Stock and Class A Preferred
Stock. If full dividends are not so paid, the No Par Preferred Stock and Class
A Preferred Stock shall share dividends pro rata with the Parity Securities.
CONVERSION
The prospectus supplement for any series of Preferred Stock will state the
terms, if any, on which shares of that series are convertible into shares of
another series of Preferred Stock or Common Stock.
For any series of Preferred Stock which is convertible, the Company shall at
all times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued No Par Preferred Stock or Class A
Preferred Stock, as the case may be, or Common Stock or shares held in its
treasury or both, for the purpose of effecting the conversion of the shares of
such series of Preferred Stock, the full number of shares of No Par Preferred
Stock, Class A Preferred Stock or Common Stock, as the case may be, then
deliverable upon the conversion of all outstanding shares of such series.
No fractional shares or scrip representing fractional shares of Preferred
Stock or Common Stock will be issued upon the conversion of shares of any
series of convertible Preferred Stock. Each holder to whom fractional shares
would otherwise be issued will instead be entitled to receive, at the Company's
election, either (a) a cash payment equal to the current market price of such
holder's fractional interest or (b) a cash payment equal to such holder's
proportionate interest in the net proceeds (following the deduction of
applicable transaction costs) from the sale promptly by an agent, on behalf of
such holders, of shares of Preferred Stock or Common Stock representing the
aggregate of such fractional shares.
The holders of any series of shares of Preferred Stock at the close of
business on a dividend payment record date will be entitled to receive the
dividend payable on such shares (except that holders of shares called for
redemption on a redemption date occurring between such record date and the
dividend payment date shall
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not be entitled to receive such dividend on such dividend payment date but
instead will receive accrued and unpaid dividends to such redemption date) on
the corresponding dividend payment date notwithstanding the conversion thereof
or the Company's default in payment of the dividend due. Except as provided
above, the Company will make no payment or allowance for unpaid dividends,
whether or not in arrears, on converted shares or for dividends on the shares
of No Par Preferred Stock, Class A Preferred Stock or Common Stock issued upon
conversion.
EXCHANGEABILITY
The holders of shares of Preferred Stock of any series may be obligated at
any time or at maturity to exchange such shares for Common Stock or debt
securities of the Company. The terms of any such exchange and any such debt
securities will be described in the prospectus supplement relating to such
series of Preferred Stock.
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Company or the holder thereof upon terms and at the
redemption prices set forth in the prospectus supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by mandatory
or optional redemption, the shares to be redeemed will be determined by lot or
pro rata, as may be determined by the Board of Directors of the Company or by
any other method determined to be equitable by the Board of Directors.
On and after a redemption date, unless the Company defaults in the payment
of the redemption price, dividends will cease to accrue on shares of Preferred
Stock called for redemption and all rights of holders of such shares will
terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies, except in certain
narrowly defined circumstances, may not exercise any option to redeem shares of
preferred stock included as Tier 1 Capital without the prior approval of the
Federal Reserve. Ordinarily, the Federal Reserve Board would not permit such a
redemption unless (1) the shares are redeemed with the proceeds of a sale by
the bank holding company of common stock or perpetual preferred stock or (2)
the Federal Reserve determines that the bank holding company's condition and
circumstances warrant the reduction of a source of permanent capital.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, holders of each series of Preferred Stock that ranks senior to the
Junior Securities will be entitled to receive out of assets of the Company
available for distribution to shareholders, before any distribution is made on
any Junior Securities, including Common Stock, distributions upon liquidation
in the amount set forth in the prospectus supplement relating to such series of
Preferred Stock, plus an amount equal to any accrued and unpaid dividends. If
upon any voluntary or involuntary liquidation, dissolution or winding up of the
Company, the amounts payable with respect to the Preferred Stock of any series
and any other Parity Securities are not paid in full, the holders of the
Preferred Stock of such series and the Parity Securities will share ratably in
any such distribution of assets of the Company in proportion to the full
liquidation preferences to which each is entitled. After payment of the full
amount of the liquidation preference to which they are entitled, the holders of
such series of Preferred Stock will not be entitled to any further
participation in any distribution of assets of the Company.
VOTING RIGHTS
Except as indicated below or in the prospectus supplement relating to a
particular series of Preferred Stock or except as expressly required by
applicable law, the holders of shares of Preferred Stock will have no voting
rights.
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Under regulations adopted by the Federal Reserve, if the holders of shares
of any series of Preferred Stock of the Company become entitled to vote for the
election of directors, such series may then be deemed a "class of voting
securities" and a holder of 25% or more of such series (or a holder of 5% if it
otherwise exercises a "controlling influence" over the Company) may then be
subject to regulation as a bank holding company in accordance with the BHC Act.
In addition, at such time as such series is deemed a class of voting
securities, (i) any other bank holding company may be required to obtain the
approval of the Federal Reserve Board to acquire or retain 5% or more of such
series, and (ii) any person other than a bank holding company may be required
to file with the Federal Reserve Board under the Change in Bank Control Act, a
federal law, to acquire or retain 10% or more of such series.
PREFERRED STOCK OUTSTANDING
As of the date hereof, the Company has issued and outstanding no shares of
No Par Preferred Stock and 22,820 shares of Class A Preferred Stock with an
aggregate liquidation preference of $.6 million. The 7.75% Cumulative
Convertible Preferred Stock (22,820 shares) is the only series of Class A
Preferred Stock outstanding. The shares of outstanding Class A Preferred Stock
are fully paid and non-assessable. The Company has also authorized a series of
No Par Preferred Stock in connection with its preferred stock purchase rights
plan. See "Description of Preferred Stock Purchase Rights."
Holders of shares of 7.75% Cumulative Convertible Preferred Stock are
entitled to cumulative dividends, when declared by the Company's Board of
Directors.
In the event of any voluntary or involuntary liquidation, distribution or
sale of assets, dissolution, or winding up of the Company, the holder of a
share of outstanding Preferred Stock will be entitled to receive prior to any
payment upon the Company's Common Stock, cash in the amount of $25 in the case
of the 7.75% Cumulative Convertible Preferred Stock.
Holders of 7.75% Cumulative Convertible Preferred Stock have no general
voting rights but have the right to vote in certain events. When an amount
equal to at least six quarterly dividends payable on the 7.75% Cumulative
Convertible Preferred Stock is in arrears, the number of directors of the
Company will be increased by two and the holders of 7.75% Cumulative
Convertible Preferred Stock, voting separately as a class with the holders of
any one or more other series of Preferred Stock of the Company ranking on a
parity with the 7.75% Cumulative Convertible Preferred Stock either as to
payment of dividends or upon liquidation, dissolution or winding up and upon
which like voting rights have been conferred and are exercisable, will be
entitled at the next annual meeting of shareholders of the Company and each
subsequent annual meeting of shareholders to elect two directors to fill such
vacancies. In each case, such right shall continue until there are no dividends
in arrears upon the Company's No Par Preferred Stock or Class A Preferred
Stock.
The 7.75% Cumulative Convertible Preferred Stock is redeemable at any time
at the option of the Company and is convertible at any time into Common Stock
at the option of the holders. The conversion rights of the 7.75% Cumulative
Convertible Preferred Stock will terminate at the close of business on the
tenth day preceding the date fixed for redemption of shares of such series.
The Bank of New York is the Transfer Agent, Registrar and Dividend
Disbursement Agent for the Company's No Par Preferred Stock and Class A
Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
The following summary is not complete. You should refer to the applicable
provisions of the forms of the Company's Deposit Agreement (as defined below)
and Depositary Receipt (as defined below) relating to the Preferred Stock for a
complete statement of the terms and rights of the Depositary Shares. These
documents are incorporated by reference and have been filed with the SEC in
Amendment No. 1 to the Company's Registration Statement on Form S-3 (No. 33-
51984).
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GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event such
option is exercised, the Company will issue Depositary Receipts, each of which
will represent a fraction (to be set forth in the prospectus supplement
relating to a particular series of Preferred Stock) of a share of a particular
series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary Shares
will be deposited under a Deposit Agreement (the "Deposit Agreement") between
the Company and a bank or trust company selected by the Company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000 (the "Depositary"). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fraction of a share of Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting, redemption, conversion and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional shares
of Preferred Stock in accordance with the terms of the offering.
Pending the preparation of definitive Depositary Receipts, the Depositary
may, upon the written order of the Company or any holder of deposited Preferred
Stock, execute and deliver temporary Depositary Receipts which are
substantially identical to, and entitle the holders thereof to all the rights
pertaining to, the definitive Depositary Receipts. Definitive Depositary
Receipts will be prepared thereafter without unreasonable delay, and temporary
Depositary Receipts will be exchangeable for definitive Depositary Receipts at
the Company's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the deposited Preferred Stock to the
record holders of Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto. If the Depositary determines that it is not feasible to make
such distribution, it may, with the approval of the Company, sell such property
and distribute the net proceeds from such sale to such holders.
REDEMPTION OR EXCHANGE OF STOCK
If a series of Preferred Stock represented by Depositary Shares is to be
redeemed or exchanged, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of Preferred Stock held by the Depositary, or exchanged for the
Common Stock or debt securities to be issued in exchange for the Preferred
Stock (as the case may be, in accordance with the terms of such series of
Preferred Stock). The Depositary Shares will be redeemed or exchanged by the
Depositary at a price per Depositary Share equal to the applicable fraction of
the redemption price per share or market value of Common Stock or debt
securities per Depositary Share paid in respect of the shares of Preferred
Stock so redeemed or exchanged. Whenever the Company redeems or exchanges
shares of Preferred Stock held by the Depositary, the Depositary will redeem or
exchange as of the same date the number of Depositary Shares representing
shares of Preferred Stock so redeemed or exchanged. If fewer than all the
Depositary Shares are to be redeemed or exchanged, the Depositary Shares to be
redeemed or exchanged will be selected by the Depositary by lot or pro rata or
by any other equitable method as may be determined by the Company.
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WITHDRAWAL OF STOCK
Any holder of Depositary Shares may, upon surrender of the Depositary
Receipts at the corporate trust office of the Depositary (unless the related
Depositary Shares have previously been called for redemption), receive the
number of whole shares of the related series of Preferred Stock and any money
or other property represented by such Depositary Receipts. Holders of
Depositary Shares making such withdrawals will be entitled to receive whole
shares of Preferred Stock on the basis set forth in the related prospectus
supplement for such series of Preferred Stock, but holders of such whole shares
of Preferred Stock will not thereafter be entitled to deposit such Preferred
Stock under the Deposit Agreement or to receive Depositary Receipts therefor.
If the Depositary Shares surrendered by the holder in connection with such
withdrawal exceed the number of Depositary Shares that represent the number of
whole shares of Preferred Stock to be withdrawn, the Depositary will deliver to
such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares.
VOTING DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any series of
deposited Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such series of Preferred Stock. Each record
holder of such Depositary Shares on the record date (which will be the same
date as the record date for the relevant series of Preferred Stock) will be
entitled to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of the Preferred Stock represented by such holder's
Depositary Shares. The Depositary will endeavor, insofar as practicable, to
vote the amount of such series of Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all reasonable actions which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holder of Depositary Shares representing
such Preferred Stock.
CONVERSION RIGHTS
Any holder of Depositary Shares, upon surrender of the Depositary Receipts
therefor and delivery of instructions to the Depositary, may cause the Company
to convert any specified number of whole or fractional shares of Preferred
Stock represented by the Depositary Shares into the number of whole shares of
Common Stock or Preferred Stock (as the case may be, in accordance with the
terms of such series of the Preferred Stock) of the Company obtained by
dividing the aggregate liquidation preference of such Depositary Shares by the
Conversion Price (as such term is defined in the Certificate of Amendment) then
in effect, as such Conversion Price may be adjusted by the Company from time to
time as provided in the Certificate of Amendment. In the event that a holder
delivers Depositary Receipts to the Depositary for conversion which in the
aggregate are convertible either into less than one whole share of such Common
Stock or Preferred Stock or into any number of whole shares of such Common
Stock or Preferred Stock plus an excess constituting less than one whole share
of such Common Stock or Preferred Stock, the holder shall receive payment in
lieu of such fractional share.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the holders of Depositary Shares
representing Preferred Stock of any series will not be effective unless such
amendment has been approved by the holders of at least 66 2/3% of the
Depositary Shares then outstanding representing Preferred Stock of such series.
Every holder of an outstanding Depositary Receipt at the time any such
amendment becomes effective, or any transferee of such holder, shall be deemed,
by continuing to hold such Depositary Receipt, or by reason of the acquisition
thereof, to consent and agree to such amendment and to be bound by the Deposit
Agreement
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as amended thereby. The Deposit Agreement automatically terminates if (i) all
outstanding Depositary Shares have been redeemed; or (ii) each share of
Preferred Stock has been converted into Common Stock or Preferred Stock or has
been exchanged for Common Stock or debt securities; or (iii) there has been a
final distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution has
been distributed to the holders of Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay all charges of the Depositary in connection with the initial deposit
of the relevant series of Preferred Stock and any redemption or exchange of
such Preferred Stock. Holders of Depositary Receipts will pay other transfer
and other taxes and governmental charges and such other charges or expenses as
are expressly provided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
MISCELLANEOUS
The Depositary will forward all reports and communications from the Company
which are delivered to the Depositary and which the Company is required to
furnish to the holders of the deposited Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares, Depositary
Receipts or shares of Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or upon
information provided by holders of Depositary Receipts or other persons
believed to be competent and on documents believed to be genuine.
DESCRIPTION OF COMMON STOCK
The following summary is not complete. You should refer to the applicable
provisions of the Company's Certificate of Incorporation, including the
Certificates of Amendment pursuant to which the outstanding series of preferred
stock were issued, and to the New York Business Corporation Law for a complete
statement of the terms and rights of the Common Stock.
The Company is authorized to issue 1,600,000,000 shares of Common Stock, par
value $7.50 per share. As of October 30, 1998, 760,662,982 shares of Common
Stock were outstanding. The Common Stock is listed on the New York Stock
Exchange. Its symbol is BK.
Dividends--The holders of the Common Stock of the Company are entitled to
receive dividends, when, as and if declared by the Board of Directors out of
any funds legally available therefor.
Voting--Holders of Common Stock are entitled to one vote for each share held
on all matters as to which shareholders are entitled to vote. The holders of
the Common Stock do not have cumulative voting rights.
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Liquidation Rights--Upon liquidation of the Company, holders of Common Stock
are entitled to receive pro rata the net assets of the Company after
satisfaction in full of the prior rights of creditors (including holders of the
Company's Debt Securities) of the Company and holders of any preferred stock.
The principal source of funds for payment of dividends by the Company is
dividends paid by its subsidiary banks. See "Certain Regulatory
Considerations--Dividends."
Miscellaneous--Holders of Common Stock do not have any preferential or
preemptive right with respect to any securities of the Company or any
conversion rights. The Common Stock is not subject to redemption. The
outstanding shares of Common Stock are fully paid and non-assessable.
The Bank of New York is the Transfer Agent, Registrar and Dividend
Disbursement Agent for the Common Stock of the Company.
The New York Business Corporation Law restricts certain business
combinations. The statute prohibits certain New York corporations from engaging
in a merger or other business combination with a holder of 20% or more of the
corporation's outstanding voting stock ("acquiring person") for a period of
five years following acquisition of the stock unless the merger or other
business combination, or the acquisition of the stock, is approved by the
corporation's board of directors prior to the date of the stock acquisition.
The statute also prohibits consummation of such a merger or other business
combination at any time unless the transaction has been approved by the
corporation's board of directors or by a majority of the outstanding voting
stock not beneficially owned by the acquiring person or certain "fair price"
conditions have been met. Under the provisions of the statute, the Company may
amend its by-laws by a vote of the shareholders to elect not to be governed by
this statute. As of the date of this prospectus, the by-laws of the Company
have not been so amended.
DESCRIPTION OF PREFERRED STOCK PURCHASE RIGHTS
The following summary is not complete. You should refer to Rights Agreement,
dated as of December 10, 1985, and amended as of June 13, 1989, April 30, 1993,
and March 8, 1994 (as amended, the "Rights Agreement"), between the Company and
The Bank of New York, as Rights Agent for a complete statement of the terms and
rights of the Preferred Stock Purchase Rights.
The Rights Agreement is incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part. A copy of the Rights
Agreement can be obtained as described under "Available Information" or by
writing to the Rights Agent: The Bank of New York, 101 Barclay Street, New
York, New York 10007, Attention: Shareholder Relations Department-11th Floor.
On December 10, 1985, the Company adopted a preferred stock purchase rights
plan. This plan was amended as of June 13, 1989, April 30, 1993 and March 8,
1994. The entire plan, as amended is also referred to as the "Plan". Under the
Plan the Company declared a dividend of one right (a "Right" and, collectively,
the "Rights") for each outstanding share of Common Stock.
As of the date of this prospectus. the Rights are not represented by
separate certificates. Instead, each share of Common Stock also represents a
Right.
When the dividend of one Right per share was declared it was declared on
shares of Common Stock that were then outstanding as well as shares of Common
Stock that would be issued by the Company thereafter, but before the Separation
Date (as defined below). Anyone who acquires shares of Common Stock, before the
Separation Date, issued upon conversion of or exchange for any shares of
Preferred Stock will receive one Right for each share of Common Stock.
Subject to adjustment upon the occurrence of certain events described below,
each Right may be exercised by the holder thereof to purchase one/one-
thousandth of a share of a new series of the Company's No Par Preferred Stock
(the "Purchase Rights Preferred Stock") for $200 (the "Exercise Price"), 10
days after the earliest of:
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(i) the date of public announcement that a person or group (an "Acquiring
Person") has acquired 20% or more of the Company's Common Stock,
(ii) the date of approval under the BHC Act or the date of notice of
nondisapproval under the Change in Bank Control Act for any person to
acquire 25% or more of the outstanding shares of the Company's Common Stock
and
(iii) the date of commencement of or first public announcement of the
intent of any person to commence a tender or exchange offer to acquire 25%
or more of the outstanding shares of the Company's Common Stock. The first
date on which the right to purchase the Purchase Rights Preferred Stock
could be exercised is referred to herein as the Separation Date.
The Exercise Price, the number of Rights outstanding and the Redemption
Price (as defined below) will be adjusted in the event
(i) of a stock dividend on, or subdivision or combination of, the Common
Stock or
(ii) that the Company issues in a reclassification, merger or
consolidation any shares of capital stock in respect of or in lieu of
existing Common Stock.
If there is a merger or other business combination between the Company and
an Acquiring Person, or if certain other events occur involving an Acquiring
Person, each Right (if not previously exercised) would entitle the holder to
purchase $200 in market value of the Acquiring Person's stock (or, in certain
events, the stock of another company) for $100.
In addition, if a Separation Date occurs other than as a result of a merger,
business combination or other event referred to above and a person or group
acquires 20% or more of the outstanding shares of the Common Stock, each Right
(if not previously exercised and other than Rights beneficially owned by an
Acquiring Person) would entitle the holder to purchase $200 in market value of
the Company's Common Stock for $100.
Prior to the Separation Date, the Rights cannot be transferred apart from
the Common Stock and are represented solely by the Common Stock certificates.
If the Separation Date occurs, separate certificates representing the Rights
will be mailed to holders of the Common Stock as of such date, and the Rights
could then begin to trade separately from the Common Stock.
The Rights are redeemable by the Company at $.05 per Right (the "Redemption
Price"), subject to adjustment upon the occurrence of certain events, at any
time prior to the occurrence of the Separation Date. The Rights will expire on
the earliest of (i) the time at which the Rights are exchanged for Common Stock
or Purchase Rights Preferred Stock as described herein, (ii) the time at which
the Rights are redeemed as described herein, and (iii) the close of business on
March 7, 2004.
The Rights do not have any voting rights and are not entitled to dividends.
The terms of the Rights may be amended without the consent of the holders,
provided the amendment does not adversely affect the interests of the holders.
Each share of Purchase Rights Preferred Stock will have a liquidation
preference of $200,000 ($200 for every one/one-thousandth of a share of
Purchase Rights Preferred Stock) and have a dividend rate equal to the
dividends on 1,000 shares of Common Stock. The Purchase Rights Preferred Stock
will have no sinking fund, but is redeemable at the option of the Company two
years after the Separation Date at the liquidation preference per share. The
Purchase Rights Preferred Stock will have certain limited voting rights.
The Rights may have certain anti-takeover effects. The Rights may cause
substantial dilution to an Acquiring Person if it attempts to merge with, or
engage in certain other transactions with, the Company. The Rights should not,
however, interfere with any merger or other business combination approved by
the Company's Board of Directors prior to the occurrence of a Separation Date
because the Rights may be redeemed prior to such time.
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BOOK-ENTRY ISSUANCE
If any Debt Securities or Trust Preferred Securities (collectively, "Book
Entry Securities") are to be represented by global certificates, The Depository
Trust Company ("DTC") will act as securities depositary for all of the Book
Entry Securities, unless otherwise referred to in the prospectus supplement
relating to an offering of the particular series of Book Entry Securities.
The following is a summary of the depository arrangements applicable to such
securities issued in global form and for which DTC acts as depositary. If there
are any changes from this summary they will appear in a prospectus supplement.
If any securities are to be issued in global form, you will not receive a
paper certificate representing the Debt Securities you have purchased. Instead
the Company will deposit with DTC or its custodian one or more fully-registered
global certificates ("Global Certificates") registered in the name of Cede &
Co. (DTC's nominee) for the Book Entry Securities, representing in the
aggregate the total number of a BNY Trust's Trust Preferred Securities,
aggregate principal balance of Junior Subordinated Debt Securities or aggregate
principal amount of Debt Securities, respectively.
Since the Global Certificate is registered in the name of DTC or its
nominee, DTC or its nominee is said to have legal or record ownership of the
Global Certificate. Persons who buy interests in the Global Security by
purchasing securities are said to own a beneficial interest in the Global
Security.
Only institutions (sometimes referred to as "participants") that have
accounts with DTC or its nominee or persons that may hold interests through
participants, such as individual members of the public, may own beneficial
interests in a Global Certificate.
Ownership of beneficial interests in a Global Certificate by participants
will be evidenced only by, and the transfer of that ownership interest will be
effected only through, records maintained by DTC or its nominee.
Ownership of beneficial interests in a Global Certificate by persons that
hold through participants will be evidenced only by, and the transfer of that
ownership interest within that participant will be effected only through,
records maintained by that participant.
DTC has no knowledge of the actual beneficial owners of the Book-Entry
Securities. Beneficial owners will not receive written confirmation from DTC of
their purchase, but beneficial owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the participants through which the
beneficial owners purchased the securities.
DTC alone is responsible for any aspect of its records, any nominee or any
participant relating to, or payments made on account of, beneficial interests
in a Global Certificate or for maintaining, supervising or reviewing any of the
records of DTC, any nominee or any participant relating to such beneficial
interests.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in a Global Certificate.
We have been advised by DTC that upon the issuance of a Global Certificate
and the deposit of that Global Certificate with DTC, DTC will immediately
credit, on its book-entry registration and transfer system, the respective
principal amounts represented by that Global Certificate to the accounts of its
participants.
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The Company will pay principal of, and interest or premium on, securities
represented by a Global Certificate registered in the name of or held by DTC or
its nominee to the relevant Trustee who in turn will make payments to DTC or
its nominee, as the case may be, as the registered owner and holder of the
Global Certificate representing those securities in immediately available
funds. We have been advised by DTC that upon receipt of any payment of
principal of, or interest or premium on, a Global Certificate, DTC will
immediately credit, on its book-entry registration and transfer system,
accounts of participants with payments in amounts proportionate to their
respective beneficial interests in the principal amount of that Global
Certificate as shown in the records of DTC. Payments by participants to owners
of beneficial interests in a Global Certificate held through those participants
will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name", and will be the sole responsibility of those
participants, subject to any statutory or regulatory requirements as may be in
effect from time to time.
A Global Certificate is exchangeable for definitive securities (paper
certificates) registered in the name of, and a transfer of a Global Certificate
may be registered to, any person other than DTC or its nominee, only if:
(a) DTC notifies us that it is unwilling or unable to continue as
depositary for that Global Certificate or if at any time DTC ceases to be
registered under the Exchange Act;
(b) we determine in our discretion that the Global Certificate shall be
exchangeable for definitive securities in registered form; or
(c) in the case of Debt Securities, there shall have occurred and be
continuing an Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default with respect to the
Debt Securities.
Any Global Certificate representing a Debt Security that is exchangeable
pursuant to the preceding paragraph will be exchangeable in whole for
definitive Debt Securities in registered form, of like tenor and of an equal
aggregate principal amount as the Global Certificate, in denominations
specified in the applicable prospectus supplement (if other than $1,000 and
integral multiples of $1,000). The definitive Debt Securities will be
registered by the registrar in the name or names instructed by DTC. We expect
that such instructions may be based upon directions received by DTC from its
participants with respect to ownership of beneficial interests in the Global
Certificate. Unless otherwise indicated in a prospectus supplement any
principal, premium and interest will be payable, the transfer of the definitive
Debt Securities will be registerable and the definitive Debt Securities will be
exchangeable at the corporate trust office of The Bank of New York in the
Borough of Manhattan, The City of New York, provided that payment of interest
may be made at the option of the Company by check mailed to the address of the
person entitled to that interest payment as of the record date and as shown on
the register for the Debt Securities.
Any Global Certificate representing a Trust Preferred Security that is
exchangeable pursuant to (a) or (b) above will be exchangeable in whole for
definitive Trust Preferred Securities in registered form, of like tenor and of
an equal aggregate principal amount as the Global Certificate, in denominations
specified in the applicable prospectus supplement (if other than $25.00 and
integral multiples of $25.00). The definitive Trust Preferred Securities will
be registered by the registrar in the name or names instructed by DTC. We
expect that such instructions may be based upon directions received by DTC from
its participants with respect to ownership of beneficial interests in the
Global Certificate. Any Distributions and other payments will be payable, the
transfer of the definitive Trust Preferred Securities will be registerable and
the definitive Trust Preferred Securities will be exchangeable at the corporate
trust office of The Bank of New York in the Borough of Manhattan, The City of
New York, provided that such payment may be made at the option of the Company
by check mailed to the address of the person entitled to that payment as of the
record date and as shown on the register for the Trust Preferred Securities.
DTC may discontinue providing its services as securities depositary with
respect to any of the Book Entry Securities at any time by giving reasonable
notice to the relevant Trustee and the Company. In the event that a successor
securities depositary is not obtained, definitive Debt Security or Trust
Preferred Security or
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certificates representing such Debt Security or Trust Preferred Security are
required to be printed and delivered. The Company, at its option, may decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor depositary). After an Event of Default under the applicable
Indenture, the holders of a majority in liquidation amount of Trust Preferred
Securities or aggregate principal amount of Debt Securities may determine to
discontinue the system of book-entry transfers through DTC. In any such event,
definitive certificates for such Trust Preferred Securities or Debt Securities
will be printed and delivered.
Except as provided above, owners of the beneficial interests in a Global
Security will not be entitled to receive physical delivery of Debt Securities
in definitive form and will not be considered the holders of securities for any
purpose under the Indentures, and no Global Security shall be exchangeable
except for another Global Security of like denomination and tenor to be
registered in the name of DTC or its nominee. Accordingly, each person owning a
beneficial interest in a Global Security must rely on the procedures of DTC
and, if that person is not a participant, on the procedures of the participant
through which that person owns its interest, to exercise any rights of a holder
under the Global Security or the Indentures.
Redemption notices will be sent to Cede & Co. as the registered holder of
the Book Entry Securities. If less than all of a series of the Debt Securities
or a BNY Trust's Trust Securities are being redeemed, DTC will determine the
amount of the interest of each direct participant to be redeemed in accordance
with its then current procedures.
Although voting with respect to the Book Entry Securities is limited to the
holders of record of the Book Entry Securities, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to Book Entry Securities. Under its usual procedures, DTC would mail an
omnibus proxy (the "Omnibus Proxy") to the relevant Trustee as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those direct participants to whose accounts such Book Entry
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
DTC has advised us that DTC is a limited purpose trust company organized
under the laws of the State of New York, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered under the Exchange Act. DTC was created
to hold securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants in such securities
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. DTC is owned by a number
of its participants and by the New York Stock Exchange, Inc., the American
Stock Exchange, Inc. and the National Association of Securities Dealers, Inc.
Access to DTC's book-entry system is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. The rules
applicable to DTC and its participants are on file with the SEC.
DTC management is aware that some computer applications, systems and the
like for processing data that are dependent upon calendar dates, including
dates before, on and after January 1, 2000, may encounter "Year 2000 problems."
DTC has informed its participants and other members of the financial community
that it has developed and is implementing a program so that its data processing
computer applications and systems relating to the timely payment of
distributions (including principal and income payments) to securityholders,
book-entry deliveries, and settlement of trades within DTC, continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. In addition, DTC's plan includes a
testing phase, which is expected to be completed within appropriate time
frames.
However, DTC's ability to perform its services properly is also dependent
upon other parties, including issuers and their agents, as well as third-party
vendors from whom DTC licenses software and hardware, and third-party vendors
on whom DTC relies for information or the provision of services, including
telecommunication and electrical utility service providers, among others. DTC
has informed the financial
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community that it is contacting (and will continue to contact) third-party
vendors from whom DTC acquires services to: (i) impress upon them the
importance of those services being Year 2000 compliant; and (ii) determine the
extent of their efforts for Year 2000 remediation (and, as appropriate,
testing) of their services. In addition, DTC is in the process of developing
contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to Year 2000 has
been provided to the financial community for informational purposes only and is
not intended to serve as a representation, warranty or contract modification of
any kind.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the BNY Trusts and the Company believe to
be accurate, but the BNY Trusts and the Company assume no responsibility for
the accuracy thereof. Neither the BNY Trusts nor the Company has any
responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
VALIDITY OF SECURITIES
Unless otherwise indicated below or in the applicable prospectus supplement,
the validity of the securities will be passed upon for the Company by Paul A.
Immerman, Senior Counsel of The Bank of New York and for the underwriters by
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New York
10004.
Unless otherwise indicated in the applicable prospectus supplement, certain
matters of Delaware law relating to the validity of the Trust Preferred
Securities, the enforceability of the Trust Agreements and the formation of the
BNY Trusts will be passed upon by Pepper Hamilton LLP, 1201 Market Street,
Wilmington, Delaware 19899, special Delaware counsel to the Company and the BNY
Trusts.
Unless otherwise indicated in the applicable prospectus supplement, the
validity of the Guarantees and the Junior Subordinated Securities will be
passed upon for the Company by Sullivan & Cromwell, 125 Broad Street, New York,
New York 10004.
Certain matters relating to United States Federal income tax considerations
will be passed upon for the Company by Sullivan & Cromwell, as special tax
counsel for the Company. Winthrop, Stimson, Putnam & Roberts from time to time
performs legal services for the Company and its affiliates.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our 1996 and 1997
consolidated financial statements included in our Annual Report on Form 10-K
for the year ended December 31, 1997, as set forth in their report, which is
incorporated in this prospectus by reference. Such consolidated financial
statements are incorporated by reference in reliance on their report given on
their authority as experts in accounting and auditing.
Our consolidated financial statements for the year ended December 31, 1995,
incorporated in this prospectus by reference from the Company's Annual Report
on Form 10-K for the year ended December 31, 1997 have been audited by Deloitte
& Touche LLP independent auditors, as stated in their report, which is
incorporated herein by reference, and have been incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
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PLAN OF DISTRIBUTION
The securities may be sold in a public offering to or through agents,
underwriters or dealers designated from time to time or directly to purchasers.
The Company and each BNY Trust may sell its securities as soon as practicable
after effectiveness of the registration statement of which this prospectus
forms a part. The names of any underwriters or dealers involved in the sale of
the securities in respect of which this prospectus is delivered, the amount or
number of Securities to be purchased by any such underwriters and any
applicable commissions or discounts will be set forth in the applicable
prospectus supplement.
Underwriters may offer and sell securities at a fixed price or prices, which
may be changed, or from time to time at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. In connection with the sale of Debt Securities and Trust Preferred
Securities, underwriters may be deemed to have received compensation from the
Company and/or the applicable BNY Trust in the form of underwriting discounts
or commissions and may also receive commissions. Underwriters may sell
securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters.
Any underwriters utilized may engage in stabilizing transactions and
syndicate covering transactions in accordance with Rule 104 under the Exchange
Act. Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum. Syndicate
covering transactions involve purchases of the securities in the open market
after the distribution has been completed in order to cover syndicate short
positions. Such stabilizing transactions and syndicate covering transactions
may cause the price of the securities to be higher than it would otherwise be
in the absence of such transactions.
Any underwriting compensation paid by the Company and/or the applicable BNY
Trust to underwriters in connection with the offering of securities, and any
discounts, concessions or commissions allowed by such underwriters to
participating dealers, will be described in an accompanying prospectus
supplement. Underwriters and dealers participating in the distribution of
securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of such securities
may be deemed to be underwriting discounts and commissions, under the
Securities Act. Underwriters and dealers may be entitled under agreements with
the Company and a BNY Trust, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act, and
to reimbursement by the Company for certain expenses.
In connection with the offering of the securities of the Company or any BNY
Trust, the Company or such BNY Trust may grant to the underwriters an option to
purchase additional securities to cover over-allotments, if any, at the initial
public offering price (with an additional underwriting commission), as may be
set forth in the accompanying prospectus supplement. If the Company or such BNY
Trust grants any over-allotment option, the terms of such over-allotment option
will be set forth in the prospectus supplement for such securities.
Underwriters and dealers may engage in transactions with, or perform
services for, the Company and/or the applicable BNY Trust and/or any of their
affiliates in the ordinary course of business. Certain of the underwriters and
their associates may be customers of, including borrowers from, engage in
transactions with, and perform services for, the Company, the Bank and other
subsidiaries of the Company in the ordinary course of business.
Securities other than the Common Stock will be new issues of securities and
will have no established trading market. Any underwriters to whom such
securities are sold for public offering and sale may make a market in such
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. Such securities may
or may not be listed on a national securities exchange or the NASDAQ National
Market. No assurance can be given as to the liquidity of or the existence of
trading markets for any securities other than the Common Stock.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933, as amended..... $120,930
Blue Sky fees and expenses (including counsel fees)............... 4,000
Fees of rating agencies........................................... 100,000
Printing and engraving............................................ 20,000
Accounting services............................................... 31,000
Miscellaneous..................................................... 24,070
--------
Total........................................................... $300,000
========
</TABLE>
- --------
* All expenses except the SEC Registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-laws of the Corporation (Section 7.1) provide the following:
Except to the extent expressly prohibited by the New York Business
Corporation Law, the Company shall indemnify any person made or threatened to
be made a party to any action or proceeding, whether civil or criminal, by
reason of the fact that such person or such person's testator or intestate is
or was a director or officer of the Company or serves or served at the request
of the Company, any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, penalties, amounts paid in settlement and reasonable expenses, including
attorneys' fees, incurred in connection with such action or proceeding, or any
appeal therein; provided that no such indemnification shall be made if a
judgment or other final adjudication adverse to such person established that
his or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled; and provided further
that no such indemnification shall be required with respect to any settlement
or other nonadjudicated disposition of any threatened or pending action or
proceeding unless the Company has given its prior consent to such settlement or
other disposition.
The Company may advance or promptly reimburse upon request any person
entitled to indemnification hereunder for all expenses, including attorney's
fees, reasonably incurred in defending any action or proceeding in advance of
the final disposition thereof upon receipt of an undertaking by or on behalf of
such person to repay such amount if such person is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to the extent
the expenses so advanced or reimbursed exceed the amount to which such person
is entitled; provided, however, that such person shall cooperate in good faith
with any request by the Company that common counsel be utilized by the parties
to an action or proceeding who are similarly situated unless to do so would be
inappropriate due to actual or potential differing interests between or among
such parties.
Nothing herein shall limit or affect any right of any person otherwise than
hereunder to indemnification or expenses, including attorney's fees, under any
statute, rule, regulation, certificate of incorporation, by-law, insurance
policy, contract or otherwise.
Anything in these By-laws to the contrary notwithstanding, no elimination of
this By-law, and no amendment to this By-law adversely affecting the right of
any person to indemnification or advancement of expenses hereunder, shall be
effective until the 60th day following notice to such person of such action,
and no elimination of or amendment to this By-law shall deprive any person of
his or her rights hereunder arising out of alleged or actual occurrences, acts
or failures to act prior to such 60th day.
II-1
<PAGE>
The Company shall not, except by elimination of or amendment to this By-law
in a manner consistent with the preceding paragraph, take any corporate action
or enter into any agreement which prohibits, or otherwise limits the rights of
any person to, indemnification in accordance with the provisions of this By-
law. The indemnification of any person provided by this By-law shall continue
after such person has ceased to be a director or officer of the Company and
shall inure to the benefit of such person's heirs, executors, administrators
and legal representatives.
The Company is authorized to enter into agreements with any of its directors
or officers extending rights to indemnification and advancement of expenses to
such person to the fullest extent permitted by applicable law, but the failure
to enter into any such agreement shall not affect or limit the rights of such
person pursuant to this By-law, it being expressly recognized hereby that all
directors or officers of the Company by serving as such after the adoption
hereof, are acting in reliance hereon and that the Company is estopped to
contend otherwise.
In case any provision in this By-law shall be determined at any time to be
unenforceable in any respect, the other provisions shall not in any way be
affected or impaired thereby, and the affected provision shall be given the
fullest possible enforcement in the circumstances, it being the intention of
the Company to afford indemnification and advancement of expenses to its
directors and officers, acting in such capacities or in the other capacities
mentioned herein, to the fullest extent permitted by law.
For purposes of this By-law, the Company shall be deemed to have requested a
person to serve an employee benefit plan where the performance by such person
of his or her duties to the Company also imposes duties on, or otherwise
involves services by, such person to the plan or participants or beneficiaries
of the plan, and excise taxes assessed on a person with respect to any employee
benefit plan pursuant to applicable law shall be considered indemnifiable
expenses. For purposes of this By-law, the term "Company" shall include any
legal successor to the Company, including any corporation which acquires all or
substantially all of the assets of the Company in one or more transactions.
A person who has been successful, on the merits or otherwise, in the defense
of a civil or criminal action or proceeding of the character described in the
first paragraph of this By-law shall be indemnified as authorized in such
paragraph. Except as provided in the preceding sentence and unless ordered by a
court, indemnification under this By-law shall be made by the Company if, and
only if, authorized in the specific case:
(1) By the Board of Directors acting by a quorum consisting of directors
who are not parties to such action or proceeding upon a finding that the
director or officer has met the standard of conduct set forth in the first
paragraph of this By-law, or,
(2) If such a quorum is not obtainable or, even if obtainable, a quorum
of disinterested directors so directs:
(a) by the Board of Directors upon the opinion in writing of
independent legal counsel that indemnification is proper in the
circumstances because the standard of conduct set forth in the first
paragraph of this By-law has been met by such director or officer; or
(b) by the shareholders upon a finding that the director or officer
has met the applicable standard of conduct set forth in such paragraph.
If any action with respect to indemnification of directors and officers is
taken by way of amendment of these By-laws, resolution of directors, or by
agreement, the Company shall, not later than the next annual meeting of
shareholders, unless such meeting is held within three months from the date of
such action and, in any event, within fifteen months from the date of such
action, mail to its shareholders of record at the time entitled to vote for the
election of directors a statement specifying the action taken.
With certain limitations, Sections 721 through 726 of the New York Business
Corporation Law permit a corporation to indemnify a director or officer made a
party to an action (i) by a corporation or in its right in
II-2
<PAGE>
order to procure a judgment in its favor unless he shall have breached his
duties, or (ii) other than an action by or in the right of the corporation in
order to procure a judgment in its favor if such director or officer acted in
good faith and in a manner he reasonably believed to be in or, in certain
cases, not opposed to such corporation's best interests, and additionally, in
criminal actions, has no reasonable cause to believe his conduct was unlawful.
In addition, the Corporation maintains a directors' and officers' liability
insurance policy.
Reference is made to the indemnity provisions in the Underwriting Agreement
which is filed as Exhibit 1 to this Registration Statement.
Under each Trust Agreement, the Corporation will agree to indemnify each of
the Trustees of the Issuer with respect thereto or any predecessor Trustee for
the Issuer, and to hold such Trustees harmless against any loss, damage,
claims, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the Trust Agreements, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties under the Trust Agreements.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
1.1 Form of Underwriting Agreement for Debt Securities, incorporated by
reference to Exhibit 1.1 to the registrant's Registration Statement on
Form S-3 (No. 33-51984)
1.2 Form of Underwriting Agreement for Preferred Stock, Class A Preferred
Stock and Depositary Shares incorporated by reference to Exhibit 1.2
to the registrant's Registration Statement on Form S-3 (No. 33-51984)
1.3 Form of Underwriting Agreement for Trust Preferred Securities,
incorporated by reference to Exhibit 1 to the registrant's
Registration Statement on Form S-3 (No. 33-61957)
4.1 Restated Certificate of Incorporation of the registrant incorporated
by reference to Exhibit 4 to the registrant's Quarterly Report on Form
10-Q filed November 10, 1994 (File No. 1-652)
4.2 Amendment to Certificate of Incorporation of the registrant
incorporated by reference to Exhibit 4 to the registrant's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996.
4.3 Amendment to Certificate of Incorporation of the registrant
4.4 By-Laws of the registrant, incorporated by reference to Exhibit 3(a)
to the registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1987 (File No. 1-6152)
4.5 Rights Agreement, including form of Preferred Stock Purchase Right,
dated as of December 10, 1985, between The Bank of New York Company,
Inc. and The Bank of New York, as Rights Agent, incorporated by
reference to the registrant's Registration Statement on Form 8-A,
dated December 18, 1985. (File No. 1-6152)
4.6 First Amendment dated as of June 13, 1989, to the Rights Agreement,
including form of Preferred Stock Purchase Right, dated as of December
10, 1985, between The Bank of New York Company, Inc. and The Bank of
New York, as Rights Agent, incorporated by reference to the amendment
on Form 8, dated June 14, 1989, to the registrant's Registration
Statement on Form 8-A, dated December 18, 1985. (File No. 1-6152)
4.7 Second Amendment, dated as of April 30, 1993, to the Rights Agreement,
including form of Preferred Stock Purchase Right dated as of December
10, 1985, between The Bank of New York Company, Inc. and The Bank of
New York, as Rights Agent, incorporated by reference to the amendment
on Form 8-A/A, filed May 3, 1993, to the registrant's Registration
Statement on Form 8-A, dated December 18, 1985. (File No. 1-6152)
4.8 Third Amendment, dated as of March 8, 1994, to the Rights Agreement,
including form of Preferred Stock Purchase Right dated as of December
10, 1985, between The Bank of New York Company, Inc. and The Bank of
New York, as Rights Agent, incorporated by reference to the amendment
on Form 8-A/A, filed March 23, 1994, to the registrant's Registration
Statement on Form 8-A, dated December 18, 1985. (File No. 1-6152)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
4.9 Specimen of Certificate for the registrant's Common Stock incorporated
by reference to Exhibit 4.4 to the registrant's Registration Statement
on Form S-8 (No. 33-57670)
4.10 Senior Indenture, dated as of July 18, 1991 between The Bank of New
York Company, Inc. and Bankers Trust Company, as Trustee, incorporated
herein by reference to Exhibit 4.4 to the registrant's Registration
Statement on Form S-3 (No. 33-51984)
4.11 Form of Subordinated Indenture, dated as of October 1, 1993, between
The Bank of New York Company, Inc. and Chase Manhattan Trust Company,
as successor trustee, incorporated herein by reference to Exhibit 4.11
to the registrant's Registration Statement on Form S-3 (No. 33-50333)
4.12 Form of Deposit Agreement (including form of Depositary Receipt)
incorporated herein by reference to Exhibit 4.4 to the registrant's
Registration Statement on Form S-3 (No. 33-51984)
4.13 Junior Subordinated Indenture, dated as of December 25, 1996, between
the registrant and The First National Bank of Chicago, as Trustee,
incorporated by reference to Exhibit 4.1 to the registrant's current
report on Form 8-K filed June 16, 1997.
4.14 Certificate of Trust of BNY Capital IV incorporated by reference to
Exhibit 4(h) to the registrant's Registration Statement on Form S-3
(Nos. 333-15951 and 333-15951-0 through 05)
4.15 Trust Agreement of BNY Capital IV incorporated by reference to Exhibit
4(i) to the registrant's Registration Statement on Form S-3 (Nos. 333-
15951 and 333-15951-0 through 05)
4.16 Certificate of Trust of BNY Capital V incorporated by reference to
Exhibit 4(j) to the registrant's Registration Statement on Form S-3
(Nos. 333-15951 and 333-15951-0 through 05)
4.17 Trust Agreement of BNY Capital V incorporated by reference to Exhibit
4(k) to the registrant's Registration Statement on Form S-3 (Nos. 333-
15951 and 333-15951-0 through 05)
4.18 Certificate of Trust of BNY Capital VI
4.19 Form of Trust Agreement of BNY Capital VI
4.20 Certificate of Trust of BNY Capital VII
4.21 Form of Trust Agreement of BNY Capital VII
4.22 Certificate of Trust of BNY Capital VIII
4.23 Form of Trust Agreement of BNY Capital VIII
4.24 Form of Amended and Restated Trust Agreement of BNY Capital IV and V
incorporated by reference to Exhibit 4(l) to the registrant's
Registration Statement on Form S-3 (Nos. 333-15951 and 333-15951-0
through 05)
4.25 Form of Amended and Restated Trust Agreement of BNY Capital VI, VII
and VIII*
4.26 Form of Preferred Security Certificate for BNY Capital IV and V
incorporated by reference to Exhibit 4(m) to the registrant's
Registration Statement on Form S-3 (Nos. 333-15951 and 333-15951-01
through 05)
4.27 Form of Preferred Security Certificate for BNY Capital VI, VII and
VIII*
4.28 Form of Guarantee Agreement for BNY Capital IV and V incorporated by
reference to Exhibit 4(n) to the registrant's Registration Statement
on Form S-3 (Nos. 333-15951 and 333-15951-01 through 05)
4.29 Form of Guarantee Agreement for BNY Capital VI, VII and VIII*
5.1 Opinion of Paul A. Immerman as to Debt Securities, Preferred Stock,
Depositary Shares and Common Stock
5.2 Opinion of Sullivan & Cromwell as to legality of the Junior
Subordinated Debt Securities and the Guarantees to be issued by the
Company*
5.3 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital IV*
5.4 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital V*
5.5 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital VI*
5.6 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital VII*
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
5.7 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital VIII*
12.1 Computation of ratio of earnings to fixed charges, incorporated by
reference to the registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1998 (File No. 1-6152) and the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997
(File No. 1-6152)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Paul A. Immerman (included in 5.1)
23.4 Consent of Sullivan & Cromwell (included in 5.2)*
23.5 Consent of Pepper & Hamilton LLP*
24.1 Powers of Attorney
25.1 Form T-1 Statement of Eligibility of Bankers Trust Company
25.2 Form T-1 Statement of Eligibility of Chase Manhattan Trust Company,
National Association
25.3 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Junior Subordinated Indenture*
25.4 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Amended and Restated Trust
Agreement of BNY Capital IV*
25.5 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Amended and Restated Trust
Agreement of BNY Capital V*
25.6 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Amended and Restated Trust
Agreement of BNY Capital VI*
25.7 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Amended and Restated Trust
Agreement of BNY Capital VII*
25.8 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Amended and Restated Trust
Agreement of BNY Capital VIII*
25.9 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Guarantee for the benefit of the
holders of Preferred Securities of BNY Capital IV*
25.10 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Guarantee for the benefit of the
holders of Preferred Securities of BNY Capital V*
25.11 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Guarantee for the benefit of the
holders of Preferred Securities of BNY Capital VI*
25.12 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Guarantee for the benefit of the
holders of Preferred Securities of BNY Capital VII*
25.13 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Guarantee for the benefit of the
holders of Preferred Securities of BNY Capital VIII*
</TABLE>
* To be filed by amendment
II-5
<PAGE>
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants, hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, each Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by each Registrant of expenses incurred or paid by a director, officer
or controlling person of each Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, each
Registrant will, unless in the opinion of its counsel the matter has been
settled by the controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
Each of the undersigned Registrants hereby also undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in post-effective amendment by those
paragraphs is contained in periodic reports filed by a Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
II-6
<PAGE>
(4) to provide to the underwriter at the closing specified in the
underwriting agreement certificates in such denominations and registered in
such names as required by the underwriter to permit prompt delivery to each
purchaser.
(5) That, for the purposes of determining any liability under the Securities
Act of 1933:
(i) The information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Registration pursuant to Rule 424(b)(1) or
(4) or 487(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(ii) Each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-7
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
BANK OF NEW YORK COMPANY, INC. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS
DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW
YORK, ON THE 5TH DAY OF JANUARY, 1999.
The Bank of New York Company, Inc.
(Registrant)
/s/ [Thomas A. Renyi]
By: _________________________________
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE 5TH DAY OF JANUARY, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ [Thomas A. Renyi] Chairman of the Board and Chief Executive
___________________________________________ Officer (Principal Executive Officer) and
(THOMAS A. RENYI) Director
/s/ [Bruce Van Saun] Senior Executive Vice President (Principal
___________________________________________ Financial Officer)
(BRUCE VAN SAUN)
/s/ [Robert E. Keilman] Comptroller (Principal Accounting Officer)
___________________________________________
(ROBERT E. KEILMAN)
* Director
___________________________________________
(J. CARTER BACOT)
* Director
___________________________________________
(RICHARD BARTH)
* Director
___________________________________________
(FRANK J. BIONDI)
* Director
___________________________________________
(WILLIAM R. CHANEY)
* Director
___________________________________________
(RALPH E. GOMORY)
* Vice Chairman and Director
___________________________________________
(ALAN R. GRIFFITH)
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Director
___________________________________________
(RICHARD J. KOGAN)
* Director
___________________________________________
(JOHN A. LUKE, JR.)
* Director
___________________________________________
(EDWARD L. HENNESSY, JR.)
* Director
___________________________________________
(JOHN C. MALONE)
* Director
___________________________________________
(DONALD L. MILLER)
* Director
___________________________________________
(H. BARCLAY MORLEY)
* Director
___________________________________________
(DENO D. PAPAGEORGE)
* Director
___________________________________________
(CATHERINE A. REIN)
* Director
___________________________________________
(HAROLD E. SELLS)
</TABLE>
- --------
* Jacqueline R. McSwiggan, hereby signs this Registration Statement on Form S-3
on the 5th day of January, 1999 on behalf of each of the indicated persons
for whom he is attorney-in-fact pursuant to a power of attorney filed herein.
/s/ [Jacqueline R. McSwiggan]
- -------------------------------------
JACQUELINE R. MCSWIGGAN, ATTORNEY-
IN-FACT
II-9
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, BNY
CAPITAL VI CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON THE 5TH DAY OF
JANUARY, 1999.
BNY Capital VI
By: The Bank of New York Company,
Inc., as Depositor
/s/ [Bruce Van Saun]
By: _________________________________
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, BNY
CAPITAL VII CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON THE 5TH DAY OF
JANUARY, 1999.
BNY Capital VII
By: The Bank of New York Company,
Inc., as Depositor
/s/ [Bruce Van Saun]
By: _________________________________
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, BNY
CAPITAL VIII CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON THE 5TH DAY OF
JANUARY, 1999.
BNY Capital VIII
By: The Bank of New York Company,
Inc., as Depositor
/s/ [Bruce Van Saun]
By: _________________________________
II-10
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION
OF THE BANK OF NEW YORK COMPANY, INC.
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
1. The name of the corporation is The Bank of New York Company, Inc. The
corporation was originally formed under the name The B.N.Y. Company, Inc.
2. The Certificate of Incorporation of the corporation was filed by the
Department of State on July 9, 1968. A Restated Certificate of Incorporation
was filed by the Department of State on August 16, 1994. A Certificate of
Amendment was filed on July 11, 1996.
3. To increase the authorized Common Stock (par value $7.50 per share) from
800,000,000 to 1,600,000,000 shares the first paragraph of Article FOURTH of the
Certificate of Incorporation is hereby amended to read, in its entirety:
FOURTH: The aggregate number of shares which the Corporation shall have
the authority to issue is one billion six hundred and ten million
(1,610,000,000) of which one billion six hundred million (1,600,000,000)
shares (par value $7.50 per share) shall be designated as Common Stock;
five million (5,000,000) shares, without par value, shall be designated as
Preferred Stock; and five million (5,000,000) shares (par value $2.00 per
share) shall be designated as Class A Preferred Stock.
4. The amendment of the Certificate of Incorporation was authorized pursuant to
Section 803(a) of the Business Corporation Law, by a vote of the Board of
Directors at a meeting duly convened and held on March 10, 1998 and by a vote of
the holders of a majority of all outstanding shares entitled to vote thereon at
a meeting of shareholders duly convened and held on May 12, 1998.
IN WITNESS WHEREOF, the undersigned have signed this Certificate of
Amendment on July 16, 1998 and affirm the statements contained herein as true
under the penalties of perjury.
/s/ [Thomas A. Renyi]
__________________________________
Name: Thomas A. Renyi
Title: Chairman of the Board &
Chief Executive Officer
/s/ [Jacqueline R. McSwiggan]
__________________________________
Name: Jacqueline R. McSwiggan
Title: Assistant Secretary
<PAGE>
EXHIBIT 4.18
CERTIFICATE OF TRUST
OF
BNY CAPITAL VI
This Certificate of Trust of BNY Capital VI (the "Trust"), dated
December 18, 1998, is being duly executed and filed by the undersigned, as
trustees to form a business trust under the Delaware Business Trust Act (12 Del.
C. (S) 3810 et seq.)
1. Name. The name of the business trust formed hereby is BNY
----
Capital VI.
2. Delaware Trustee. The name and the business address of the
----------------
trustee of the Trust with a principal place of business in the State of Delaware
is First Chicago Delaware Inc., 300 King Street, Wilmington, DE 19801
IN WITNESS WHEREOF, the undersigned being the trustees of the Trust,
have executed this Certificate of Trust as of the date first-above written.
First Chicago Delaware Inc.
as Trustee
By: /s/ Steven M. Wagner
----------------------------------
Steven M. Wagner, Vice President
/s/ Robert Keilman
----------------------------------
Robert Keilman as Regular Trustee
/s/ John Park
----------------------------------
John Park as Regular Trustee
<PAGE>
EXHIBIT 4.19
TRUST AGREEMENT
OF
BNY CAPITAL VI
This TRUST AGREEMENT, dated as of December 21, 1998 between The Bank of New
York Company, Inc., a New York corporation, as "Depositor", and John A. Park,
III and Robert E. Keilman as "Regular Trustees" and First Chicago Delaware Inc.
as "Delaware Trustee" (the Delaware Trustee and the Regular Trustees together,
the "Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BNY Capital VI, in which
name the Trustees, or the Depositor to the extent provided herein, may conduct
the business of the Trust, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount
from the Depositor, which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate for the Depositor.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and that this document
------- -- ---
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
to be included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Regular Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and certain other
securities and any other necessary documents relating thereto and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the
<PAGE>
Preferred Securities of the Trust under Section 12 of the Securities Exchange
Act of 1934, as amended; (ii) to file with one or more national securities
exchange (each, an "Exchange") or the National Association of Securities Dealers
("NASD") and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on any such Exchange or the NASD's Nasdaq National
Market ("NASDAQ"); (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as the Depositor,
on behalf of the Trust, may deem necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws; (iv) to execute on
behalf of the Trust such Underwriting Agreements with one or more underwriters
relating to the offering of the Preferred Securities as the Depositor, on behalf
of the Trust, may deem necessary or desirable. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, any Exchange, the NASD or state securities or
Blue Sky laws, to be executed on behalf of the Trust by one of the Trustees, the
Depositor and any of the Trustees appointed pursuant to Section 6 hereof are
hereby authorized to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing. It being understood that First Chicago
Delaware Inc., in its capacity as Trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the NASD or any
other national stock exchange or state securities or blue sky laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor provided, however, such notice shall not be required if it is waived
-------- -------
by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not have
any of the powers or duties of the trustees set forth herein and shall be a
Trustee of the Trust for the sole purpose of satisfying the requirements of
Section 3807(a) of the Business Trust Act.
2
<PAGE>
8. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE BANK OF NEW YORK COMPANY, INC.,
as Depositor
By:__________________________
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
as Trustee
By:__________________________
Name:
Title:
_____________________________
John A. Park, III
as Regular Trustee
_____________________________
Robert E. Keilman
as Regular Trustee
4
<PAGE>
EXHIBIT 4.20
CERTIFICATE OF TRUST
OF
BNY CAPITAL VII
This Certificate of Trust of BNY Capital VII (the "Trust"), dated
December 18, 1998, is being duly executed and filed by the undersigned, as
trustees to form a business trust under the Delaware Business Trust Act (12 Del.
C. (S) 3810 et seq.)
1. Name. The name of the business trust formed hereby is BNY Capital
----
VII.
2. Delaware Trustee. The name and the business address of the trustee
----------------
of the Trust with a principal place of business in the State of Delaware is
First Chicago Delaware Inc., 300 King Street, Wilmington, DE 19801.
IN WITNESS WHEREOF, the undersigned being the trustees of the Trust,
have executed this Certificate of Trust as of the date first-above written.
First Chicago Delaware Inc.
as Trustee
By /s/ Steven M. Wagner
--------------------------------
Steven M. Wagner, Vice President
/s/ Robert Keilman
-----------------------------------
Robert Keilman as Regular Trustee
/s/ John Park
-----------------------------------
John Park as Regular Trustee
<PAGE>
EXHIBIT 4.21
TRUST AGREEMENT
OF
BNY CAPITAL VII
This TRUST AGREEMENT, dated as of December 21, 1998 between The Bank of New
York Company, Inc., a New York corporation, as "Depositor", and John A. Park,
III and Robert E. Keilman as "Regular Trustees" and First Chicago Delaware Inc.
as "Delaware Trustee" (the Delaware Trustee and the Regular Trustees together,
the "Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BNY Capital VII, in which
name the Trustees, or the Depositor to the extent provided herein, may conduct
the business of the Trust, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount
from the Depositor, which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate for the Depositor.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and that this document
------- -- ---
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
to be included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Regular Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and certain other
securities and any other necessary documents relating thereto and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the
<PAGE>
Preferred Securities of the Trust under Section 12 of the Securities Exchange
Act of 1934, as amended; (ii) to file with one or more national securities
exchange (each, an "Exchange") or the National Association of Securities Dealers
("NASD") and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on any such Exchange or the NASD's Nasdaq National
Market ("NASDAQ"); (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as the Depositor,
on behalf of the Trust, may deem necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws; (iv) to execute on
behalf of the Trust such Underwriting Agreements with one or more underwriters
relating to the offering of the Preferred Securities as the Depositor, on behalf
of the Trust, may deem necessary or desirable. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, any Exchange, the NASD or state securities or
Blue Sky laws, to be executed on behalf of the Trust by one of the Trustees, the
Depositor and any of the Trustees appointed pursuant to Section 6 hereof are
hereby authorized to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing. It being understood that First Chicago
Delaware Inc., in its capacity as Trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the NASD or any
other national stock exchange or state securities or blue sky laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor provided, however, such notice shall not be required if it is waived
-------- -------
by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not have
any of the powers or duties of the trustees set forth herein and shall be a
Trustee of the Trust for the sole purpose of satisfying the requirements of
Section 3807(a) of the Business Trust Act.
2
<PAGE>
8. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE BANK OF NEW YORK COMPANY, INC.,
as Depositor
By:__________________________
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
as Trustee
By:__________________________
Name:
Title:
_____________________________
John A. Park, III
as Regular Trustee
_____________________________
Robert E. Keilman
as Regular Trustee
4
<PAGE>
EXHIBIT 4.22
CERTIFICATE OF TRUST
OF
BNY CAPITAL VIII
This Certificate of Trust of BNY Capital VIII (the "Trust"), dated December
18, 1998, is being duly executed and filed by the undersigned, as trustees to
form a business trust under the Delaware Business Trust Act (12 Del. C. (S) 3810
et seq.)
1. Name. The name of the business trust formed hereby is BNY Capital VIII.
----
2. Delaware Trustee. The name and the business address of the trustee of
----------------
the Trust with a principal place of business in the State of Delaware is First
Chicago Delaware Inc., 300 King Street, Wilmington, DE 19801
IN WITNESS WHEREOF, the undersigned being the trustees of the Trust, have
executed this Certificate of Trust as of the date first-above written.
First Chicago Delaware Inc.
as Trustee
By: /s/ Steven M. Wagner
--------------------------------
Steven M. Wagner, Vice President
/s/ Robert Keilman
--------------------------------
Robert Keilman as Regular Trustee
/s/ John Park
--------------------------------
John Park as Regular Trustee
<PAGE>
EXHIBIT 4.23
TRUST AGREEMENT
OF
BNY CAPITAL VIII
This TRUST AGREEMENT, dated as of December 21, 1998 between The Bank of New
York Company, Inc., a New York corporation, as "Depositor", and John A. Park,
III and Robert E. Keilman as "Regular Trustees" and First Chicago Delaware Inc.
as "Delaware Trustee" (the Delaware Trustee and the Regular Trustees together,
the "Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BNY Capital VIII, in which
name the Trustees, or the Depositor to the extent provided herein, may conduct
the business of the Trust, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount
from the Depositor, which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate for the Depositor.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and that this document
------- -- ---
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
to be included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Regular Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and certain other
securities and any other necessary documents relating thereto and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the
<PAGE>
Preferred Securities of the Trust under Section 12 of the Securities Exchange
Act of 1934, as amended; (ii) to file with one or more national securities
exchange (each, an "Exchange") or the National Association of Securities Dealers
("NASD") and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on any such Exchange or the NASD's Nasdaq National
Market ("NASDAQ"); (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as the Depositor,
on behalf of the Trust, may deem necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws; (iv) to execute on
behalf of the Trust such Underwriting Agreements with one or more underwriters
relating to the offering of the Preferred Securities as the Depositor, on behalf
of the Trust, may deem necessary or desirable. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, any Exchange, the NASD or state securities or
Blue Sky laws, to be executed on behalf of the Trust by one of the Trustees, the
Depositor and any of the Trustees appointed pursuant to Section 6 hereof are
hereby authorized to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing. It being understood that First Chicago
Delaware Inc., in its capacity as Trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the NASD or any
other national stock exchange or state securities or blue sky laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor provided, however, such notice shall not be required if it is waived
-------- -------
by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not have
any of the powers or duties of the trustees set forth herein and shall be a
Trustee of the Trust for the sole purpose of satisfying the requirements of
Section 3807(a) of the Business Trust Act.
2
<PAGE>
8. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE BANK OF NEW YORK COMPANY, INC.,
as Depositor
By:__________________________
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
as Trustee
By:__________________________
Name:
Title:
_____________________________
John A. Park, III
as Regular Trustee
_____________________________
Robert E. Keilman
as Regular Trustee
4
<PAGE>
EXHIBIT 5.1
THE BANK OF NEW YORK
ONE WALL STREET
NEW YORK, NEW YORK 10286
January 5, 1999
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933, as
amended (the "Act") of (i) $1,500,000,000 aggregate amount of debt securities
(the "Debt Securities") of The Bank of New York Company, Inc., a New York
corporation (the "Company"), shares of the Company's Preferred Stock, without
par value (the "Preferred Stock"), and shares of the Company's Class A Preferred
Stock, par value $2.00 per share (the "Class A Preferred Stock"), which may be
issued in the form of depositary shares (the "Depositary Shares") evidenced by
depositary receipts (the "Depositary Receipts") issued against deposit of
Preferred Stock or Class A Preferred Stock pursuant to a Deposit Agreement to be
entered into between the Company and a bank or trust company selected by the
Company, (ii) such indeterminate number of shares of Common Stock (the "Common
Stock"), par value $7.50 per share, of the Company as may be issuable separately
or in exchange for or upon conversion of the Preferred Stock or Class A
Preferred Stock, as the case may be, and the Preferred Stock Purchase Rights
related to the Common Stock (the "Rights") to be issued pursuant to the Rights
Agreement, dated as of December 10, 1985, and amended as of June 13, 1989, April
30, 1993 and March 8, 1994, between the Company and The Bank of New York, as
Rights Agent, (iii) such indeterminate number of shares of perpetual preferred
stock or other equity securities of the Company and such indeterminate principal
amount of debt securities of the Company as may, in each case, be acceptable to
the Company's primary federal regulator and may be issuable in exchange for or
upon conversion of the Preferred Stock or Class A Preferred Stock (collectively,
"Other Capital Securities"), (iv) such indeterminate number of shares of
preferred stock of the Company not included in Other Capital Securities (the
"Additional Preferred Shares") as may be issuable upon conversion of the
Preferred Stock or Class A Preferred Stock and (v) such indeterminate principal
amount of debt securities of the Company (the "Additional Debt Securities") as
may be issuable in exchange for the Preferred Stock or Class A Preferred Stock
(the Debt
<PAGE>
Securities, Preferred Stock, Class A Preferred Stock, Common Stock, Rights,
Other Capital Securities, Additional Preferred Shares and Additional Debt
Securities being herein collectively referred to as the "Securities"), I, as
your counsel, have examined such corporate records, certificates and other
documents, and such questions of law, as I have considered necessary or
appropriate for the purposes of this opinion.
Upon the basis of such examination, I advise you that, in my opinion:
(1) When the Registration Statement relating to the Securities (the
"Registration Statement") has become effective under the Act, the terms of the
Debt Securities and of their issuance and sale have been duly established in
conformity with the applicable Indenture so as not to violate any applicable law
or result in a default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Company, and the
Debt Securities have been duly executed and authenticated in accordance with the
applicable Indenture and issued and sold as contemplated in the Registration
Statement, the Debt Securities will constitute valid and legally binding
obligations of the Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(2) When the Registration Statement has become effective under the Act, a
certificate of amendment to the Company's certificate of incorporation with
respect to the Preferred Stock or Class A Preferred Stock of a particular series
has been duly filed with the Secretary of State of the State of New York, the
terms of the Preferred Stock or Class A Preferred Stock of such series and of
its issuance and sale have been duly established in conformity with the
Company's certificate of incorporation so as not to violate any applicable law
or result in a default or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company, and the
Preferred Stock or Class A Preferred Stock of such series has been duly issued
and sold as contemplated by the Registration Statement, the Preferred Stock or
Class A Preferred Stock of such series will be validly issued, fully paid and
nonassessable, and the Common Stock, when duly issued in exchange for or upon
conversion of the Preferred Stock or Class A Preferred Stock of such series will
be validly issued, fully paid and nonassessable.
<PAGE>
(3) Assuming the Rights Agreement has been duly authorized, executed and
delivered by the Rights Agent, then when the Registration Statement has become
effective under the Act and the Common Stock has been validly issued either
separately or in exchange for or upon conversion of shares of any series of
Preferred Stock or Class A Preferred Stock, the Rights attributable to the
Common Stock will be validly issued.
(4) The shares of Common Stock have been duly authorized and (i) when the
Registration Statement has become effective under the Act and (ii) when the
shares of Common Stock in the form filed as an exhibit to the Registration
Statement have been duly executed, countersigned and delivered by the
Corporation upon purchase therefor and payment in full therefor as contemplated
by the Registration Statement such shares of Common Stock will be validly
issued, fully paid and nonassessable.
(5) When the Registration Statement has become effective under the Act, a
certificate of amendment to the Company's certificate of incorporation with
respect to the Preferred Stock or Class A Preferred Stock of a particular series
and such Other Capital Securities as constitute perpetual preferred stock or
other equity securities of the Company or Additional Preferred Shares, as the
case may be, has been duly filed with the Secretary of State of the State of New
York, the terms of the Preferred Stock or Class A Preferred Stock of such series
and of its issuance and sale and the terms of such Other Capital Securities or
Additional Preferred Shares, as the case may be, have been duly established in
conformity with the Company's certificate of incorporation so as not to violate
any applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, the Preferred Stock or Class A Preferred Stock of such series has
been duly issued and sold as contemplated by the Registration Statement, and
such Other Capital Securities or Additional Preferred Shares, as the case may
be, have been duly issued in exchange for or upon conversion of shares of such
series of Preferred Stock or Class A Preferred Stock, then such Other Capital
Securities or Additional Preferred Shares, as the case may be, will be validly
issued, fully paid and nonassessable.
(6) When the Registration Statement has become effective under the Act, a
certificate of amendment to the Company's certificate of incorporation with
respect to the Preferred Stock or Class A Preferred Stock of a particular series
has been duly filed with the Secretary of State of the State of New York, the
Indenture relating to such Other Capital Securities as constitute debt
securities of the
<PAGE>
Company or Additional Debt Securities, as the case may be, have been duly
executed and delivered, the terms of the Preferred Stock or Class A Preferred
Stock of such series and of its issuance and sale and the terms of such other
Capital Securities or Additional Debt Securities, as the case may be, have been
duly established in conformity with the Company's certificate of incorporation
and the applicable Indenture, respectively, so as not to violate any applicable
law or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company,
the Preferred Stock or Class A Preferred Stock of such series has been duly
issued and sold as contemplated by the Registration Statement, and such Other
Capital Securities or Additional Debt Securities, as the case may be, have been
duly executed and authenticated in accordance with the applicable Indenture and
duly issued in exchange for or upon conversion of shares of such series of
Preferred Stock or Class A Preferred Stock, such Other Capital Securities or
Additional Debt Securities, as the case may be, will constitute valid and
legally binding obligations of the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(7) When the Registration Statement has become effective under the Act, the
Deposit Agreement has been duly authorized, executed and delivered, the terms of
the Depositary Shares and of their issue and sale have been duly established in
conformity with the Deposit Agreement so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, and the
Depositary Shares have been duly executed and issued in accordance with the
Deposit Agreement and issued and sold as contemplated in the Registration
Statement, the Depositary Shares will be duly and validly issued and persons in
whose names the Depositary Receipts evidencing such Depositary Shares are
registered will be entitled to the rights specified therein and in the Deposit
Agreement.
In connection with my opinion set forth in paragraph (3) above, I note that
the question whether the Board of Directors of the Company might be required to
redeem the Rights at some future time will depend upon the facts and
circumstances existing at the time and, accordingly, is beyond the scope of such
opinion.
I further note that, as of the date of this opinion, a judgment for money
in any action based on a debt security
<PAGE>
denominated in a foreign currency or currency unit in a Federal or state court
in the United States ordinarily would be enforced in the United States only in
United States dollars. The date used to determine the rate of conversion of the
foreign currency or currency unit in which a particular debt security is
denominated into United States dollars will depend upon various factors,
including which court renders the judgment. In the case of a debt security
denominated in a foreign currency, a state court in the State of New York
rendering a judgment on such debt security would be required under Section 27 of
the New York Judiciary Law to render such judgment in the foreign currency in
which the debt security is denominated, and such judgment would be converted
into United States dollars at the exchange rate prevailing on the date of entry
of the judgment.
I further note that, as of the date of this opinion, Section 519 of the New
York Business Corporation Law only permits a New York corporation such as the
Company to issue convertible or exchangeable shares that are convertible or
exchangeable at the option of the holder, which shares may be convertible into
or exchangeable for shares of any class or shares of any series of any class,
except a class of shares having rights or preferences as to dividends or
distribution of assets upon liquidation which are prior to or superior in rank
to those of the shares being converted or exchanged.
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.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the heading "Validity of
Securities" in the Prospectus. 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
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the incorporation by reference of our report dated January 30, 1998, with
respect to the consolidated financial statements of The Bank of New York
Company, Inc. included in its Annual Report to Shareholders incorporated by
reference in the Annual Report (Form 10-K) for the year ended December 31, 1997
which is incorporated by reference in the Registration Statement on Form S-3
and Prospectus related to the registration of $1,500,000,000 of Senior Debt
Securities, Senior Subordinated Debt Securities, Junior Subordinated Debt
Securities, Preferred Stock, no par value, Class A, $2 Par Value Preferred
Stock, $7.50 Par Value Common Stock and Trust Preferred Securities and the
related guarantees.
/s/ Ernst & Young LLP
New York, New York
December 30, 1998
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Bank of New York Company, Inc. on Form S-3 of our report dated February 26,
1996, appearing in the Annual Report on Form 10-K of The Bank of New York
Company, Inc. for the year ended December 31, 1997 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
New York, New York
December 30, 1998
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ J. Carter Bacot
-------------------------------------
J. Carter Bacot, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Richard Barth]
-------------------------------------
Richard Barth, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Frank J. Biondi]
-------------------------------------
Frank J. Biondi, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [William R. Chaney]
-------------------------------------
William R. Chaney, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Ralph E. Gomory]
-------------------------------------
Ralph E. Gomory, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Alan R. Griffith]
-------------------------------------
Alan R. Griffith, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Richard J. Kogan]
-------------------------------------
Richard J. Kogan, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [John A. Luke, Jr.]
-------------------------------------
John A. Luke, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Edward L. Hennessy, Jr.]
-------------------------------------
Edward L. Hennessy, Jr., Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [John C. Malone]
-------------------------------------
John C. Malone, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Donald L. Miller]
-------------------------------------
Donald L. Miller, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [H. Barclay Morley]
-------------------------------------
H. Barclay Morley, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Deno D. Papageorge]
-------------------------------------
Deno D. Papageorge, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Catherine A. Rein]
-------------------------------------
Catherine A. Rein, Director
<PAGE>
POWER OF ATTORNEY
THE BANK OF NEW YORK COMPANY, INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of The Bank
of New York Company, Inc., a New York corporation, (the "Company"), does hereby
make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R.
Griffith, Bruce Van Saun, Phebe C. Miller and Jacqueline R. McSwiggan and each
of them individually as the true and lawful attorney of the undersigned with
power to act with or without the other and with power of substitution, and in
the undersigned's name, place and stead and the undersigned's capacity as an
officer or director or both to execute, deliver and file a registration
statement on Form S-3 or such other appropriate form on the undersigned's
behalf, in any and all capacities stated therein, and to file such Registration
Statement or Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and to sign and file with the Securities
and Exchange Commission any and all amendments to such registration statement
including post effective amendments and any other documents in support thereof
or supplemental thereto with respect to the registration of up to
$1,500,000,000 of debt securities, preferred stock, Class A preferred stock,
depositary shares for such preferred stock or Class A preferred stock and an
indeterminate number of shares of common stock, par value $7.50 per share
(including preferred stock purchase rights, the "Common Stock"), other capital
securities of the Company as may be issued in exchange for, or upon conversion
of, such preferred stock or Class A preferred stock, Common Stock or one or
more series of unsecured, subordinated debt securities and related guarantees
and expense agreements to be sold to one or more trusts established by the
Company, hereby granting to said attorneys and each of them full power and
authority to do and perform, in the name and on behalf of the undersigned,
every act whatsoever as any of said attorneys individually may deem necessary
or advisable to fully carry out the intent of the foregoing as the undersigned
might or could do in person. The undersigned hereby ratifies, confirms and
approves the actions of said attorneys and each of them which they may do or
cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
10th day of November, 1998.
/s/ [Harold E. Sells]
-------------------------------------
Harold E. Sells, Director
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
______________________________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
_________________________________
The Bank of New York Company, Inc.
(Exact name of Registrant as specified in its charter)
NEW YORK 13-2614959
(State or other jurisdiction of (I.R.S. employer identification no.)
Incorporation or organization)
ONE WALL STREET
New York, New York 10286
(212) 495-1784
(Address, including zip code, and
telephone number of principal
executive offices)
Debt Securities of The Bank of New York Company, Inc.
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
NAME ADDRESS
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
ITEM 16. LIST OF EXHIBITS.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of
the Organization Certificate of Bankers Trust Company dated
June 21, 1995 - Incorporated herein by reference to Exhibit
1 filed with Form T-1 Statement, Registration No. 33-65171,
Certificate of Amendment of the Organization Certificate of
Bankers Trust Company dated March 20, 1996, incorporate by
referenced to Exhibit 1 filed with Form T-1 Statement,
Registration No. 333-25843 and Certificate of Amendment of
the Organization Certificate of Bankers Trust Company dated
June 19, 1997, copy attached.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with
Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
-2-
<PAGE>
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to
Exhibit 4 filed with Form T-1 Statement, Registration No.
22-18864.
EXHIBIT 7 - The latest report of condition of Bankers Trust Company
dated as of
March 31, 1998. Copy attached.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 5th day
of January, 1999
BANKERS TRUST COMPANY
/s/ Marc J. Parilla
By: _______________________________
Marc J. Parilla
Assistant Treasurer
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 5th day
of January, 1999.
BANKERS TRUST COMPANY
/s/ Marc J. Parilla
-----------------------
By: Marc J. Parilla
Assistant Treasurer
-5-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION 8005 OF THE
BANKING LAW," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of New
York,
this __27TH day of __ June____ in the Year of our Lord
------- -----
one thousand nine hundred and NINETY-SEVEN.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667)
shares with a par value of $10 each designated as Common Stock and 1000
shares with a par value of One Million Dollars ($1,000,000) each designated
as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
-------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
--------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
BANKERS TRUST COMPANY
NEW YORK
<PAGE>
BY-LAWS
of
BANKERS TRUST COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or re-
elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
<PAGE>
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these By-
Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit
<PAGE>
program and the adequacy of the system of internal controls of the Company which
he deems advisable or which the Audit Committee may request. Additionally, the
General Auditor shall have the duty of reporting independently of all officers
of the Company to the Audit Committee at least quarterly on any matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company that should be brought to the attention of the directors
except those matters responsibility for which has been vested in the General
Credit Auditor. Should the General Auditor deem any matter to be of special
immediate importance, he shall report thereon forthwith to the Audit Committee.
The General Auditor shall report to the Chief Financial Officer only for
administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or
<PAGE>
the President, and (ii) only if and to the extent that, after making such
efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc J. Parilla, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
/s/ Marc J. Parilla
-----------------------
Marc J. Parilla
Assistant Treasurer
DATED: January 5, 1999
<PAGE>
<TABLE>
<S> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: |0|0|6|2|3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS FOR MARCH 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
-------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS / / / / / / / / / / / / / / / / / /
1. Cash and balances due from depository institutions (from Schedule RC-A): / / / / / / / / / / / / / / / / / /
a. Noninterest-bearing balances and currency and coin (1) 0081 2,291,000 1.a.
b. Interest-bearing balances (2) 0071 2,636,000 1.b.
2. Securities: / / / / / / / / / / / / / / / / / /
a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 6,617,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell 1350 32,734,000 3.
4. Loans and lease financing receivables: / / / / / / / / / / / / / / / / / /
a. Loans and leases, net of unearned income
(from Schedule RC-C) RCFD 2122 20,227,000 / / / / / / / / / / / / / / / / / / 4.a.
b. LESS: Allowance for loan and lease
losses RCFD 3123 619,000 / / / / / / / / / / / / / / / / / / 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 / / / / / / / / / / / / / / / / / / 4.c.
d. Loans and leases, net of unearned income, / / / / / / / / / / / / / / / / / /
allowance, and reserve (item 4.a minus 4.b
and 4.c) 2125 19,608,000 4.d.
5. Trading Assets (from schedule RC-D) 3545 49,545,000 5.
6. Premises and fixed assets (including capitalized leases) 2145 885,000 6.
7. Other real estate owned (from Schedule RC-M) 2150 115,000 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 2130 391,000 8.
9. Customers' liability to this bank on acceptances outstanding.. 2155 392,000 9.
10. Intangible assets (from Schedule RC-M) 2143 266,000 10.
11. Other assets (from Schedule RC-F) 2160 5,884,000 11.
12. Total assets (sum of items 1 through 11) 2170 121,364,000 12.
</TABLE>
__________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: |0|0|6|2|3
SCHEDULE RC--CONTINUED ________________________
Dollar Amounts in Thousands / / / / / / / / Bil Mil Thou __ __
- -------------------------------------------------------------------------------------------------------------------------------
LIABILITIES / / / / / / / / / / / / / / / / / / / / / / /
13. Deposits: / / / / / / / / / / / / / / / / / / / / / / /
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E, part I) RCON 2200 22,231,000
(1) Noninterest-bearing(1) RCON 6631 3,040,000 / / / / / / / / / / / / / / / / / / / / / / /
(2) Interest-bearing RCON 6636 19,191,000 / / / / / / / / / / / / / / / / / / / / / / /
b. In foreign offices, Edge and Agreement / / / / / / / / / / / / / / / / / / / / / / /
subsidiaries, and IBFs (from Schedule
RC-E part II) RCFN 2200 21,932,000
(1) Noninterest-bearing RCFN 6631 2,423,000 / / / / / / / / / / / / / / / / / / / / / / /
(2) Interest-bearing RCFN 6636 19,509,000 / / / / / / / / / / / / / / / / / / / / / / /
14. Federal funds purchased and securities sold under agreements to
repurchase RCFD 2800 14,360,000
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0
b. Trading liabilities (from Schedule RC-D) RCFD 3548 32,890,000
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases): / / / / / / / / / / / / / / / / / / / / / / /
a. With a remaining maturity of one year or less RCFD 2332 7,653,000
b. With a remaining maturity of more than one year
through three years A547 3,707,000
c. With a remaining maturity of more than three years A548 3,034,000
17. Not Applicable. / / / / / / / / / / / / / / / / / / / / / / /
18. Bank's liability on acceptances executed and outstanding RCFD 2920 392,000
19. Subordinated notes and debentures (2) RCFD 3200 1,533,000
20. Other liabilities (from Schedule RC-G) RCFD 2930 6,595,000
21. Total liabilities (sum of items 13 through 20) RCFD 2948 114,327,000
22. Not Applicable / / / / / / / / / / / / / / / / / / / / / / /
/ / / / / / / / / / / / / / / / / / / / / / /
EQUITY CAPITAL / / / / / / / / / / / / / / / / / / / / / / /
23. Perpetual preferred stock and related surplus RCFD 3838 1,500,000
24. Common stock RCFD 3230 2,002,000
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 540,000
26. a. Undivided profits and capital reserves RCFD 3632 3,421,000
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 (46,000)
27. Cumulative foreign currency translation adjustments RCFD 3284 (380,000)
28. Total equity capital (sum of items 23 through 27) RCFD 3210 7,037,000
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 121,364,000
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during
1997.... Number
-------------------------
RCFD 6724 1 M.1
--------------------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be _ required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
_____________________
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
EXHIBIT 25.2
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
29-2933369
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
ONE OXFORD CENTRE, SUITE 1100
301 GRANT STREET, PITTSBURGH, PA 15219
(Address of principal executive offices) (Zip Code)
WILLIAM H. MCDAVID
THE CHASE MANHATTAN BANK
GENERAL COUNSEL
270 PARK AVENUE
NEW YORK, NEW YORK 10017
TEL: (212) 270-2611
(Name, address and telephone number of agent for service)
______________________________________________________
THE BANK OF NEW YORK COMPANY, INC.
(Exact name of obligor as specified in its charter)
NEW YORK 13-2614959
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE WALL STREET
NEW YORK, NEW YORK 10286
(Address of principal executive offices) (Zip Code)
______________________________________________
DEBT SECURITIES
(Title of the indenture securities)
______________________________________________________
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
NO RESPONSES ARE INCLUDED FOR ITEMS 3-15 OF THIS FORM T-1 BECAUSE THE OBLIGOR IS
NOT IN DEFAULT AS PROVIDED UNDER ITEM 13.
ITEM 16. LIST OF EXHIBITS
----------------
List below all exhibits filed as a part of this Statement of Eligibility.
1. EXHIBIT T1A(a) A copy of the Articles of Association of the Trustee as now
in effect.
2. EXHIBIT T1A(b) A copy of the Certificate of Authority of the Trustee
(previously known as New Trust Company, National Association,) to commence
business. Also included in Exhibit TIA (b) are letters dated November 24,
1997 from the Comptroller of the Currency authorizing the exercise of
fiduciary powers by the Trustee and acknowledging the name change of the
Trustee.
3. EXHIBIT T1A(c) The Authorization of the Trustee to exercise corporate trust
powers is contained in Exhibit T1A(b).
4. EXHIBIT T1B A copy of the By-Laws of the Trustee as now in effect.
5. EXHIBIT T1C Not applicable
6. EXHIBIT T1D The Trustee's consent required by Section 321(b) of the Act.
7. EXHIBIT T1E A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. EXHIBIT T1F Not applicable
9. EXHIBIT T1G Not applicable
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chase Manhattan Trust Company, National Association, a national banking
association organized and existing under the laws of the United States of
America , has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Pittsburgh, Pennsylvania, on the 30th day of December , 1998.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By /s/ Elaine D. Renn
-------------------
Elaine D. Renn
Vice President
3
<PAGE>
EXHIBIT T1A(a)
[LOGO] CHASE
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
CHARTER NO. 23548
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to perform any lawful activities of
a national bank, the undersigned do enter into the following Articles of
Association:
FIRST. The title of this Association shall be Chase Manhattan Trust Company,
National Association (the "Association").
SECOND. The main office of the Association shall be in the City of Pittsburgh,
County of Allegheny, Commonwealth of Pennsylvania. The business of the
Association shall be limited to the fiduciary powers and the support of
activities incidental to the exercise of those powers. The Association will
obtain the prior written approval of the Office of the Comptroller of the
Currency before amending these Articles of Association to expand the scope of
its activities and services.
THIRD. The board of directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full board of
directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director, during the full term of his
directorship, shall own common or preferred stock of the Association or of a
holding company owning the Association, with an aggregate par, fair market or
equity value of not less than $1,000. Any vacancy in the board of directors may
be filled by action of the shareholders or a majority of the remaining
directors.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the board of
directors may designate, on the day of each year specified therefore in the by-
laws, or if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in event of a legal holiday, on the following banking
day, an election may be held on any subsequent day within 60 days of the day
fixed, to be designated by the board of directors, or, if the directors fail to
fix the day, by shareholders representing two-thirds of the shares issued and
outstanding. Advance notice of the meeting may be duly waived by the sole
shareholder in accordance with 12 C.F.R. 7.2001.
A director may resign at any time by delivering written notice to the board of
directors, its Chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause.
4
<PAGE>
FIFTH. The authorized amount of capital stock of this Association shall be five
million dollars ($5,000,000), divided into fifty thousand (50,000) shares of
common stock of the par value of one hundred dollars ($ 100) each; but said
capital stock may be increased or decreased from time to time, according to the
provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued, or sold, nor
any right to subscription to any thereof other than such, if any, as the board
of directors, in its discretion may from time to time determine and at such
price as the board of directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH. The board of directors may appoint one of its members President of this
Association, and one of its members Chairperson of the board or two of its
members as Co-Chairpersons of the board, and shall have the power to appoint one
or more Vice Presidents, a Secretary who shall keep minutes of the directors'
and shareholders' meetings and be responsible for authenticating the records of
the Association, and such other officers and employees as may be required to
transact the business of this Association. A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the board of
directors in accordance with the by-laws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with applicable
law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the power
of shareholders to increase or decrease the capital of the Association in
accordance with law.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial by-laws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal by-laws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a board of directors to
perform.
SEVENTH. The board of directors shall have the power to change the location of
the main office to any other location permitted under applicable law, without
the approval of the shareholders, and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location permitted under applicable law, without the approval of the
shareholders subject to approval by the Office of the Comptroller of the
Currency.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's board of directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
5
<PAGE>
EXHIBIT T1A(b)
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT [PHOTO] OF THE UNITED STATES
WASHINGTON, D.C.
WHEREAS, SATISFACTORY EVIDENCE HAS BEEN PRESENTED TO THE COMPTROLLER OF THE
CURRENCY THAT NEW TRUST COMPANY NATIONAL ASSOCIATION LOCATED IN PITTSBURGH STATE
OF PENNSYLVANIA HAS COMPLIED WITH ALL PROVISIONS OF THE STATUES OF THE UNITED
STATES REQUIRED TO BE COMPLIED WITH BEFORE BEING AUTHORIZED TO COMMENCE THE
BUSINESS OF BANKING AS A NATIONAL BANKING ASSOCIATION;
Now, therefore, I HEREBY CERTIFY THAT THE ABOVE NAMED ASSOCIATION IS
AUTHORIZED TO COMMENCE THE BUSINESS OF BANKING AS A NATIONAL BANKING
ASSOCIATION.
In Testimony whereof, WITNESS MY
SIGNATURE AND SEAL OF OFFICE
[SEAL] Charter No. THIS 24th DAYS OF
23548 NOVEMBER 1997
/s/
________________________________
6
<PAGE>
- -----------------------------------------------------------------------------
Comptroller of the Currency EXHIBIT T1A(b)
Administrator of National Banks
- -----------------------------------------------------------------------------
November District
11 14 Avenue of the America's Suite 3900
New York, New York 10036
November 24, 1997
Joseph R. Bielawa
Vice President and Assistant General Counsel
The Chase Manhattan Bank
270 Park Avenue, 39th Floor
New York, New York 10017
Re: Change in Corporate Title
New Trust Company, National Association (Bank)
Pittsburgh, Pennsylvania
Dear Mr. Bielawa:
The Office of the Comptroller of the Currency (OCC) has received your
submission, concerning the change and amendment to Article First of the above-
referenced Bank's Articles of Association. The OCC has amended its records to
reflect that effective November 24, 1997, the corporate title of New Trust
Company, National Association, Charter Number 23548, was changed to "Chase
Manhattan Trust Company, National Association."
You are reminded that the OCC does not approve national bank name changes nor
dies it maintain official titles or the retention of alternate titles. The use
of other titles or the retention of the rights o any previously title is the
responsibility of the Bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal state law.
A copy of the amended Article as accepted for filing is enclosed for the Bank's
records.
Very truly yours
/s/ Linda Leickel
Linda Leickel
Senior Licensing Analyst
Charter No.:23548
Control No.: 97 NE 04 010 w/97 NE 01 022
<PAGE>
- -----------------------------------------------------------------------------
Comptroller of the Currency EXHIBIT T1A(b)
Administrator of National Banks
- -----------------------------------------------------------------------------
November District Licensing
1114 Avenue of the America's Suite 3900 Telephone (212) 790-4055
New York, New York 10036 Fax: (212) 790-4098
November 24, 1997
Mr. Daryl J. Zupan
President and CEO
New Trust Company, National Association
c/o Mellon Bank, N.A., Corporate Trust
Two Mellon Bank Center, Suite 325
Pittsburgh, Pennsylvania 15259
Re: Charter for a National Trust Bank, New Trust Company, National Association.
Pittsburgh, Pennsylvania
ACN 97 NE 01 0022
Dear Mr. Zupan:
The Comptroller of the Currency (OCC) has found that you have met all conditions
imposed by the OCC and completed all steps necessary to commence the business of
banking. Your charter certificate is enclosed. You are authorized to commence
business on November 24, 1997.
This letter also constitutes OCC authorization to exercise fiduciary powers.
You are reminded that several of the standard conditions contained in the
preliminary approval letter dated October 23, 1997 will continue to apply once
the bank opens and by opening, you agree to subject your association to these
conditions of operations. Some of the conditions bear reiteration here:
1. Regardless of the association's FDIC insurance status, the association is
subject to the Change in Bank Control act (12 U.S.C. 1817(j)) by virtue of
its national bank charter. Please refer to item 4 in the list of standard
conditions sent with the preliminary approval letter.
2. The board of directors is responsible for regular review and update of
policies and procedures and for assuring ongoing compliance with them. This
includes maintaining an internal control system that ensures compliance with
the currency reporting and record keeping requirements of the Bank Secrecy
Act (BSA). The board is expected to train its personnel in BSA procedures
and designate one person or a group to monitor day-to-day compliance.
8
<PAGE>
Mr. Daryl J. Zupan
Page two
3. The bank will not engage in full commercial powers authorized to national
banks without the OCC's prior approval
Following the commencement of operations, bank management is urged to become
familiar with the requirements of the Securities Exchange Act of 1934 and Part
11 of the Comptroller's regulations relative to the registration of the bank's
equity securities and related periodic reports. These requirements will be
applicable to your bank when the number of shareholders of record is maintained
at 500 or more. Such registration may be subsequently terminated pursuant to
the Act, only when the number of shareholders of record is reduced to fewer than
300.
Should you have any questions regarding the supervision of your bank, please
contact the portfolio manager who will be responsible for OCC's ongoing
supervisory effort at your institution. You will be notified of the name and
number of the appropriate individual in the near future.
Sincerely,
/s/ Micheal G. Tiscia
Micheal G. Tiscia
Licensing Manager
Enclosure
cc: Official File
Field File
9
<PAGE>
Exhibit T1B
[LOGO] CHASE
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1.1. ANNUAL MEETING. The regular annual meeting of the shareholders to
elect directors and transact whatever other business may properly come before
the meeting, shall be held at the main office of the Association, or such other
place as the board may designate, and at such time in each year as may be
designated by the board of directors. Unless otherwise provided by law, notice
of the meeting may be waived by the Association's sole shareholder in accordance
with 12 C.F.R. (S) 7.2001. If, for any cause, an election of directors is not
made on that date, or in the event of a legal holiday, on the next following
banking day, an election may be held on any subsequent day within 60 days of the
date fixed, to be designated by the board, or, if the directors fail to fix the
date, by shareholders representing two thirds of the shares issued and
outstanding.
SECTION 1.2. SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by a majority of the board of directors or by any one or more
shareholders owning, in the aggregate, not less than twenty-five percent of the
stock of the Association or by the Chairperson of the board of directors or the
President. Unless otherwise provided by law, advance notice of a special
meeting may be waived by the Association's Sole Shareholder in accordance with
12 C.F.R. (S) 7.2001.
SECTION 1.3. NOMINATIONS OF DIRECTORS. Nominations for election to the board
of directors may be made by the board of directors or by any stockholder of any
outstanding class of capital stock of the Association entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of
the existing management of the Association, shall be made in writing and shall
be delivered or mailed to the President of the Association and to the
Comptroller of the Currency, Washington, D.C., not less than 14 days nor more
than 50 days prior to any meeting of shareholders called for the election of
directors, provided, however, that if less than 21 days' notice of the meeting
is given to shareholders, such nomination shall be mailed or delivered to the
President of the Association and to the Comptroller of the Currency not later
than the close of business on the seventh (7th) day following the day on which
the notice of meeting was mailed. Such notification shall contain the following
information to the extent known to the notifying shareholder.
(1) The name and address of each proposed nominee.
(2) The principal occupation of each proposed nominee.
(3) The total number of shares of capital stock of the Association that
will be voted for each proposed nominee.
(4) The name and residence address of the notifying shareholder.
(5) The number of shares of capital stock of the Association owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his/her discretion, be disregarded by the Chairperson of the meeting, and upon
his/her instructions, the vote tellers may disregard all votes cast for each
such nominee.
SECTION 1.4. PROXIES. Shareholders may vote at any meeting of the shareholders
by proxies duly authorized in writing, but no officer or employee of this
Association shall act as proxy. Proxies shall be valid only for one meeting to
be specified therein, and any adjournments of such meeting. Proxies shall be
dated and filed with the records of the meeting. Proxies with rubber stamped
facsimile signatures may be used and unexecuted proxies may be counted upon
receipt of a confirming telegram from the shareholder. Proxies meeting above
requirements submitted at any time during a meeting shall be accepted.
SECTION 1.5 QUORUM. A majority of the outstanding capital stock, represented
in person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant
to Section 10.2, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held, as adjourned, without further notice. A
majority of the votes cast shall decide every question or matter submitted to
the shareholders at any meeting, unless otherwise provided by law or by the
Articles of Association, or by the shareholders or directors pursuant to Section
10.2. Any action required or permitted to be taken by the shareholders may be
taken without a meeting by unanimous written consent of the shareholders to a
resolution authorizing the action. The resolution and the written consent shall
be filed with the minutes of the proceedings of the shareholders.
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ARTICLE II. DIRECTORS
SECTION 2.1. BOARD OF DIRECTORS. The board of directors ("board") shall have
the power to manage and administer the business and affairs of the Association.
Except as expressly limited by law, all corporate powers of the Association
shall be vested in and may be exercised by the board.
SECTION 2.2. NUMBER. The board shall consist of not less than five nor more
than twenty-five persons, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a majority
of the full board or by resolution of a majority of the shareholders at any
meeting thereof; provided, however, that a majority of the full board may not
--------- --------
increase the number of directors to a number which: (1) exceeds by more than
two the number of directors last elected by shareholders where such number was
15 or less; and (2) exceeds by more than four the number of directors last
elected by shareholders where such number was 16 or more, but in no event shall
the number of directors exceed 25.
SECTION 2.3. ORGANIZATION MEETING. The Secretary shall notify the directors-
elect of their election and of the time at which they are required to meet at
the main office of the Association to organize the new board and elect and
appoint officers of the Association for the succeeding year. Such meeting shall
be held on the day of the election or as soon thereafter as practicable, and, in
any event, within 30 days thereof. If, at the time fixed for such meeting,
there shall not be a quorum, the directors present may adjourn the meeting, from
time to time, until a quorum is obtained.
SECTION 2.4. REGULAR MEETINGS. The time and location of regular meetings of
the board shall be set by the board. Such meetings may be held without notice.
Any business may be transacted at any regular meeting. The board may adopt any
procedures for the notice and conduct of any meetings as are not prohibited by
law.
SECTION 2.5. SPECIAL MEETINGS. Special meetings of the board may be called at
the request of the Chairperson or Co-Chairperson of the board, the President, or
three or more directors. Each member of the board shall be given notice stating
the time and place, by telegram, telephone, letter or in person, of each such
special meeting at least one day prior to such meeting. Any business may be
transacted at any special meeting.
SECTION 2.6. ACTION BY THE BOARD. Except as otherwise provided by law,
corporate action to be taken by the board shall mean such action at a meeting of
the board. Any action required or permitted to be taken by the board or any
committee of the board may be taken without a meeting if all members of the
board or the committee consent in writing to a resolution authorizing the
action. The resolution and the written consents thereto shall be filed with the
minutes of the proceedings of the board or committee. Any one or more members
of the board or any committee may participate in a meeting of the board or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at such
meeting.
SECTION 2.7. WAIVER OF NOTICE. Notice of a special meeting need not be given
to any director who submits a signed waiver of notice, whether before or after
the meeting, or who attends the meeting without protesting, prior thereto or at
its commencement, the lack of notice to him or her.
SECTION 2.8. QUORUM AND MANNER OF ACTING. Except as otherwise required by law,
the Articles of Association or these by-laws, a majority of the directors shall
constitute a quorum for the transaction of any business at any meeting of the
board and the act of a majority of the directors present and voting at a meeting
at which a quorum is present shall be the act of the board. In the absence of a
quorum, a majority of the directors present may adjourn any meeting, from time
to time, until a quorum is present and no notice of any adjourned meeting need
be given. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called.
SECTION 2.9. VACANCIES. In the event a majority of the full board increases
the number of directors to a number which exceeds the number of directors last
elected by shareholders, as permitted by Section 2.2, directors may be appointed
to fill the resulting vacancies by vote of such majority of the full board. In
the event of a vacancy in the board for any other cause, a director may be
appointed to fill such vacancy by vote of a majority of the remaining directors
then in office.
SECTION 2.10. REMOVAL OF DIRECTORS. The vacancy created by the removal of a
director pursuant to this Section may be filled by the board in accordance with
Section 2.9 of these by-laws or by the shareholders.
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ARTICLE III. COMMITTEES
SECTION 3.1. EXECUTIVE COMMITTEE. There may be an executive committee
consisting of the Chairperson or Co-Chairperson of the board and not less than
two other directors appointed by the board annually or more often. Subject to
the limitations in Section 3.4(g) of these by-laws, the executive committee
shall have the maximum authority permitted by law.
SECTION 3.2. AUDIT COMMITTEE. There may be an audit committee composed of not
less than two directors, exclusive of any active officers, appointed by the
board annually or more often, whose duty it shall be to make an examination at
least once during each calendar year and within fifteen months of the last
examination into the affairs of the Association, or cause continuous suitable
examinations to be made, by auditors responsible only to the board, and to
report the results of any such examinations in writing to the board from time to
time. Such examinations shall include audits of the fiduciary business of the
Association as may be required by law or regulation.
SECTION 3.3. OTHER COMMITTEES. The board may appoint, from time to time, other
committees of one or more persons, for such purposes and with such powers as the
board may determine.
SECTION 3.4. GENERAL. (a) Each committee shall elect a Chairperson from among
the members thereof and shall also designate a Secretary of the committee, who
shall keep a record of its proceedings.
(b) Vacancies occurring from time to time in the membership of any
committee shall be filled by the board for the unexpired term of the member
whose departure causes such vacancy. The board may designate one or more
alternate members of any committee, who may replace any absent member or members
at any meeting of such committee.
(c) Each committee shall adopt its own rules of procedure and shall
meet at such stated times as it may, by resolution, appoint. It shall also meet
whenever called together by its Chairperson or the Chairperson of the board.
(d) No notice of regular meetings of any committee need be given.
Notice of every special meeting shall be given either by mailing such notice to
each member of such committee at his or her address, as the same appears in the
records of the Association, at least two days before the day of such meeting, or
by notifying each member on or before the day of such meeting by telephone or by
personal notice, or by leaving a written notice at his or her residence or place
of business on or before the day of such meeting. Waiver of notice in writing
of any meeting, whether prior or subsequent to such meeting, or attendance at
such meeting, shall be equivalent to notice of such meeting. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at any
special meeting.
(e) All committees shall, with respect to all matters, be subject to
the authority and direction of the board and shall report to it when required.
(f) Unless otherwise required by law, the Articles of Association or
these by-laws, a quorum at any meeting of any committee shall be one-third of
the full membership and present shall be the act of the committee.
(g) No committee shall have authority to take any action which is
expressly required by law or regulation to be taken at a meeting of the board or
by a specified proportion of directors.
ARTICLE IV. OFFICERS AND EMPLOYEES
SECTION 4.1. CHAIRPERSON OF THE BOARD. The board shall appoint one of its
members to be the Chairperson of the board, or two persons to serve as Co-
Chairperson of the board to serve at its pleasure. Such person shall preside at
all meetings of the board. The Chairperson or Co-Chairpersons of the board
shall supervise the carrying out of the policies adopted or approved by the
board; shall have general executive powers, as well as the specific powers
conferred by these by-laws; and shall also have and may exercise such further
powers and duties as from time to time may be conferred upon, or assigned by the
board.
SECTION 4.2. PRESIDENT. The board may appoint one of its members to be the
President of the Association. In the absence of the Chairperson or Co-
Chairpersons, the President shall preside at any meeting of the board. The
President shall have general executive powers, and shall have and may exercise
any and all other powers and duties pertaining by law, regulation, or practice
to the office of President, or imposed by these by-laws. The President shall
also have and may exercise such further powers and duties as from time to time
may be conferred, or assigned by the board.
SECTION 4.3. VICE PRESIDENT. The board may appoint one or more Vice
Presidents. Each Vice President shall have such powers and duties as may be
assigned by the board.
SECTION 4.4. SECRETARY. The board shall appoint a Secretary, Cashier, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these by-laws; shall be custodian of the
corporate seal, records, documents and papers of the Association; shall provide
for the keeping of proper records of all transactions of the Association; shall
have and may exercise any and all other powers and duties pertaining by law,
regulation
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or practice, to the office of Cashier, or imposed by these by-laws; and shall
also perform such other duties as may be assigned from time to time, by the
board.
SECTION 4.5. OTHER OFFICERS. The board may appoint one or more Assistant Vice
Presidents, one or more Trust Officers, one or more Assistant Secretaries, one
or more Assistant Cashiers, one or more Managers and Assistant Managers of
branches and such other officers and attorneys in fact as from time to time may
appear to the board to be required or desirable to transact the business of the
Association. Such officers shall respectively exercise such powers and perform
such duties as pertain to their several offices, or as may be conferred upon, or
assigned to, them by the board, the Chairperson or Co-Chairpersons of the board,
or the President. The board may authorize an officer to appoint one or more
officers or assistant officers.
SECTION 4.6. RESIGNATION. An officer may resign at any time by delivering
notice to the Association. A resignation is effective when the notice is given
unless the notice specifies a later effective date.
ARTICLE V. FIDUCIARY ACTIVITIES
SECTION 5.1. TRUST COMMITTEE. There shall be a Trust Committee of this
Association composed of four or more members, who shall be capable and
experienced officers or directors of the Association. The Committee is charged
with the responsibility for the investment, retention, or disposition of assets
held in accounts with respect to which the Association has investment authority;
for the review of the assets of accounts for which the Association has
investment authority promptly after the acceptance of such an account and at
least once during every calendar year thereafter to determine the advisability
of retaining or disposing of such assets; for the determination of the manner in
which proxies received for accounts for which the Association has responsibility
for the voting of proxies shall be voted; for the determination of all
substantial questions involving discretionary authority of the Association of a
non-investment nature, including, but not limited to, distribution of principal
and/or income in respect of any account; for providing advice as to the
investment, retention, or disposition of assets in investment advisory accounts
maintained by the Association; for the making of such reports as this board
shall require; and for such other responsibilities as may be assigned by this
board. The Trust Committee, in discharging its aforementioned responsibilities,
may authorize officers of the Association to exercise such powers and under such
conditions as the Committee may from time to time prescribe.
SECTION 5.2. TRUST INVESTMENTS. Funds held in a fiduciary capacity shall be
invested according to the instrument establishing the fiduciary relationship and
local law. Where such instrument does not specify the character and class of
investments to be made and does not vest in the Association a discretion in the
matter, funds held pursuant to such instrument shall be invested in investments
in which corporate fiduciaries may invest under applicable law.
SECTION 5.3. TRUST AUDIT COMMITTEE. The board shall appoint a committee of at
least two directors, exclusive of any active officer of the association, which
shall, at least once during each calendar year make suitable audits of the
association's fiduciary activities or cause suitable audits to be made by
auditors responsible only to the board, and at such time shall ascertain whether
fiduciary powers have been administered according to law, Part 9 of the
Regulations of the Comptroller of the Currency, and sound fiduciary principles.
SECTION 5.4. FIDUCIARY FILES. There shall be maintained by the association all
fiduciary records necessary to assure that its fiduciary responsibilities have
been properly undertaken and discharged.
ARTICLE VI. STOCK AND STOCK CERTIFICATES
SECTION 6.1. TRANSFERS. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his or her shares, succeed to all rights of the prior
holder of such shares.The board may impose conditions upon the transfer of the
stock reasonably calculated to simplify the work of the Association with respect
to stock transfers, voting at shareholder meetings, and related matters and to
protect it against fraudulent transfers.
SECTION 6.2. STOCK CERTIFICATES. Certificates of stock shall bear the
signature of the Chairperson or Co-Chairpersons of the board or President (which
may be engraved, printed or impressed), and shall be signed manually or by
facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant
Cashier, or any other officer appointed by the board for that purpose, to be
known as an authorized officer, and the seal of the Association shall be
engraved thereon. Each certificate shall recite on its face that the stock
represented thereby is transferable only upon the books of the Association
properly endorsed. In case any such officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
before such certificate is issued, it may be issued by the Association with the
same effect as if such officer had not ceased to be such at the time of its
issue. The corporate seal may be a facsimile, engraved or printed.
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ARTICLE VII. CORPORATE SEAL
SECTION 7.1. CORPORATE SEAL. The Chairperson, the President, the Cashier, the
Secretary or any Assistant Cashier or Assistant Secretary, or other officer
thereunto designated by the board, shall have authority to affix the corporate
seal to any document requiring such seal, and to attest the same. Such seal
shall be substantially in the following form: A circle, with the words "Chase
Manhattan Trust Company, National Association" within such circle.
Article VIII. MISCELLANEOUS PROVISIONS
SECTION 8.1. FISCAL YEAR. The fiscal year of the Association shall be the
calendar year.
SECTION 8.2. EXECUTION OF INSTRUMENTS. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Association by the Chairperson or Co-Chairpersons of the board, or the
President, or any Vice Chairperson, or any Managing Director, or any Vice
President, or any Assistant Vice President, or the Chief Financial Officer, or
the Controller, or the Secretary, or the Cashier, or, if in connection with
exercise of fiduciary powers of the Association, by any of those officers or by
any Trust Officer. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the Association in such other
manner and by such other officers as the board may from time to time direct.
The provisions of this Section 8.2 are supplementary to any other provision of
these by-laws.
SECTION 8.3. RECORDS. The Articles of Association, the by-laws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for that purpose. The minutes of each meeting shall be signed by the Secretary,
Cashier or other officer appointed to act as Secretary of the meeting.
SECTION 8.4. CORPORATE GOVERNANCE PROCEDURES. To the extent not inconsistent
with applicable Federal banking law, bank safety and soundness or these by-laws,
the corporate governance procedures found in the Delaware General Corporation
Law shall be followed by the Association.
ARTICLE IX. INDEMNIFICATION
SECTION 9.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or an officer of the Association or is or was serving at the request of
the Association as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Association to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Association to provide broader indemnification rights than such law permitted
the Association to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that,
except as provided in Section 9.3 of these by-laws with respect to proceedings
to enforce rights to indemnification, the Association shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the
board.
SECTION 9.2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to indemnification
conferred in Section 9.1 of these by-laws shall include the right to be paid by
the Association the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Association of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 9.2 or otherwise. The rights to
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indemnification and to the advancement of expenses conferred in Sections 9.1 and
9.2 of these by-laws shall be contract rights and such rights shall continue as
to an indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators.
SECTION 9.3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 9.1
or 9.2 of these by-laws is not paid in full by the Association within sixty (60)
days after a written claim has been received by the Association except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Association to recover the unpaid amount of the claim.
If successful in whole or in part in any such suit, or in a suit brought by the
Association to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (1) any suit brought by the indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by
the indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (2) any suit brought by the Association to recover an
advancement of expenses pursuant to the terms of an undertaking, the Association
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Association
(including the board, the Association's independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Association (including the board, the Association's independent legal counsel,
or its shareholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Association to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article IX or otherwise shall be on the Association.
SECTION 9.4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to
the advancement of expenses conferred in this Article IX shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, the Association's Articles of Association, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
SECTION 9.5. INSURANCE. The Association may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Association or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Association would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 9.6. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE ASSOCIATION. The
Association may, to the extent authorized from time to time by the board, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Association to the fullest extent of the provisions of this Article
IX with respect to the indemnification and advancement of expenses of directors
and officers of the Association.
ARTICLE X. BY-LAWS
SECTION 10.1. INSPECTION. A copy of the by-laws, with all amendments, shall at
all times be kept in a convenient place at the main office of the Association,
and shall be open for inspection to all shareholders during banking hours.
SECTION 10.2. AMENDMENTS. The by-laws may be amended, altered or repealed, at
any regular meeting of the board by a vote of a majority of the total number of
the directors except as provided below. The Association's shareholders may
amend or repeal the by-laws even though the by-laws may be amended or repealed
by its board.
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EXHIBIT T1D
Consent for Records of Governmental Agencies
to be Made Available to the Commission
--------------------------------------
The undersigned, Chase Manhattan Trust Company, National Association,
Pittsburgh, Pennsylvania pursuant to Section 321(b) of The Trust Indenture Act
of 1939, hereby authorizes the Board of Governors of the Federal Reserve System,
the Federal Reserve Banks, the Treasury Department, the Comptroller of the
Currency and the Federal Deposit Insurance Corporation, under such conditions as
they may prescribe, to make available to the Commission such reports, records or
other information as they may have available with respect to the undersigned as
a prospective trustee under an indenture to be qualified under the aforesaid
Trustee Indenture Act of 1939 and to make through their examiners or other
employees for the use of the Commission, examinations of the undersigned
prospective Trustee.
The undersigned also, pursuant to Section 321(b) of said Trust
Indenture Act of 1939, consents that reports of examination by the Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Commission upon request therefor.
Dated this 11th day of December , 1998.
Chase Manhattan Trust Company,
National Association
By: /s/ Timothy J. Vara
----------------------------
Timothy J. Vara
Vice President
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EXHIBIT T1E
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
STATEMENT OF CONDITION
SEPTEMBER 30, 1998
($000)
------
ASSETS
Cash and Due From Banks $ 15,946
Securities Available for Sale 3,072
Premises and Fixed Assets 586
Intangible Assets 88,275
--------
Total Assets $107,879
========
LIABILITIES
Sundry Liabilities and Accrued Expenses $ 3,917
--------
STOCKHOLDER'S EQUITY
Common Stock $ 5,000
Surplus 95,000
Retained Earnings 3,962
--------
Total Stockholder's Equity $103,962
--------
Total Liabilities and Stockholder's Equity $107,879
========
17
