<PAGE>
As filed with the Securities and Exchange Commission on February 2, 1999
Reg. Nos. 333-70187
333-70187-01
333-70187-02
333-70187-03
333-70187-04
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
BNY Capital V
BNY Capital VI
BNY Capital VII
The Bank of New York Company, Inc. BNY Capital VIII
(Exact name of registrant as (Exact name of each registrant as
specified in its charter) specified in its certificate of
trust)
New York Delaware
(State or other jurisdiction (State or other jurisdiction of
of incorporation or organization) incorporation or organization of
13-2614959 each registrant)
(I.R.S. Employer Identification 13-7103738
No.) 13-7177235
13-7177236
13-7177237
(I.R.S. Employer Identification
No.)
c/o The Bank of New York Company, Inc.
One Wall Street One Wall Street
New York, New York 10286 New York, New York 10286
(212) 495-1784 (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)
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<PAGE>
(continued from previous page)
CALCULATION OF REGISTRATION FEE
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<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
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Preferred Stock, no par
value, of The Bank of
New York Company, Inc.
(6)(9)................ (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 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.................. $1,300,000,000 N/A $1,300,000,000 $120,930(3)
- ----------------------------------------------------------------------------------------------
</TABLE>
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(1) Such indeterminate number or principal amount of Debt Securities (including
Senior Debt Securities, Senior 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 V, BNY Capital VI, BNY Capital VII and BNY Capital VIII
(collectively, the "BNY Trusts") not to exceed $1,300,000,000 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 $1,300,000,000.
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 $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 FEBRUARY 2, 1999
PROSPECTUS
$1,300,000,000
The Bank of New York Company, Inc.
Senior Debt Securities
Senior Subordinated Debt Securities
Junior Subordinated Debt Securities
Preferred Stock
Common Stock
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. 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
BANK OF NEW YORK COMPANY, INC. 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 , 1999.
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Item Page Number
- ---- -----------
<S> <C>
Summary............................................................ 1
Consolidated Ratios of Earnings to Fixed Charges and Combined Fixed
Charges and Preferred Stock Dividend Requirements................. 2
Where You Can Find More Information about the Company and the BNY
Trusts............................................................ 2
The Company........................................................ 4
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................. 10
Description of Senior Debt Securities and Senior Subordinated Debt
Securities........................................................ 11
Description of Junior Subordinated Debt Securities................. 24
Description of Trust Preferred Securities.......................... 37
Description of Guarantees.......................................... 47
Relationship Among the Trust Preferred Securities, the
Corresponding Junior Subordinated Debt Securities, the Expense
Agreement and the Guarantees...................................... 50
Description of Preferred Stock..................................... 52
Description of Depositary Shares................................... 55
Description of Common Stock........................................ 59
Description of Preferred Stock Purchase Rights..................... 60
Book-Entry Issuance................................................ 61
Validity of Securities............................................. 65
Experts............................................................ 65
Plan of Distribution............................................... 65
</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 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 $1,300,000,000
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, described 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 may also contain information 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 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 contain, 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").
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDEND REQUIREMENTS
For the five years ended December 31, 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>
Year ended December 31
----------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits................ 4.83x 5.12x 4.30x 3.61x 3.75x
Including Interest on Deposits................ 2.05 2.06 2.00 1.81 1.94
Earnings to Combined Fixed Charges and Preferred
Stock Dividend Requirements:
Excluding Interest on Deposits................ 4.08x 4.35x 4.15x 3.51x 3.58x
Including Interest on Deposits................ 1.95 1.97 1.98 1.79 1.91
</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.
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
2
<PAGE>
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, October 19, 1998, January 19,
1999 and January 29, 1999;
. 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.
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 SEC.
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.
3
<PAGE>
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, 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.
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.
4
<PAGE>
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.
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".
5
<PAGE>
Unless otherwise specified in the applicable prospectus supplement:
. Each BNY Trust will have a term of approximately 55 years from the date
it issues its Trust Securities, but may terminate earlier as provided in
the applicable Trust Agreement.
. Each BNY Trust's business and affairs will be conducted by its trustees.
. The trustees will be 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.
. 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.
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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, 1998, the Company's net
income available to common stockholders was $1,192 million and it paid common
stock dividends totaling $403 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.
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 December 31, 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 at the end of the subsection headed "FDICIA."
Certain consolidated ratios of the Company are included in the Company's
Current Report on Form 8-K dated January 19, 1999.
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
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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) significantly undercapitalized 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 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 December 31, 1998, the Bank was well capitalized. At December 31, 1998,
the Bank had a Leverage Ratio of 6.95%, a risk-based Total Capital Ratio of
10.69% and a risk-based Tier 1 Capital Ratio of 7.37%.
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
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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.
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.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDEND REQUIREMENTS
For the five years ended December 31, 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>
Year ended December 31
----------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits................ 4.83x 5.12x 4.30x 3.61x 3.75x
Including Interest on Deposits................ 2.05 2.06 2.00 1.81 1.94
Earnings to Combined Fixed Charges and Preferred
Stock Dividend Requirements:
Excluding Interest on Deposits................ 4.08x 4.35x 4.15x 3.51x 3.58x
Including Interest on Deposits................ 1.95 1.97 1.98 1.79 1.91
</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.
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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
. 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
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(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 Indentures are qualified under the Trust Indenture Act.
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 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;
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(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;
(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
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<PAGE>
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.
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 December 31, 1998, totaled approximately $2,215,060,870. 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
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<PAGE>
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).
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
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. $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
. $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% Zero Coupon Subordinated Retail Medium-Term Notes due
2028.
. $10,000,000 6.20% Subordinated Retail Medium Term Notes due 2018
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 December 31, 1998, totaled approximately $2,215,060,870.
Indebtedness of the Company which ranks equally with the Senior Subordinated
Debt Securities, at December 31, 1998, totaled approximately $2,010,004,939.
The Company's obligations under the Senior Subordinated Debt Securities
shall rank equally in right of payment with each other and with the Existing
Subordinated Indebtedness, subject to the obligations of the
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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.
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
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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 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
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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:
(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;
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. 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);
. (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
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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 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;
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(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).
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).
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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 under the Senior Subordinated Indenture 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
. 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% Zero Coupon Subordinated Retail Medium-Term Notes due 2028
. 6.20% Subordinated Retail Medium-Term Notes due 2018
. 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.
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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)
. dates 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 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). 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.
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 December 31, 1998, totaled approximately $4,225,065,809. This
amount does not include indebtedness of subsidiaries of the Company. See also
"The Company" and "Certain Regulatory Considerations" for a more detailed
discussion.
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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.
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
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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;
(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.
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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 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
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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."
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
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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 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
Federal Reserve Board 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 Board 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
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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.
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
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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:
(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.
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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 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
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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:
(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
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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 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 December 31, 1998, totaled approximately $4,225,065,809.
Indebtedness existing under the Junior Indenture, at December 31, 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,
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(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.
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.
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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 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 Board 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
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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.
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
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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.
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
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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.
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,
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(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.
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
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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 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
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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;
(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
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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.
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
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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:
(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
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(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.
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
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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.
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.
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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 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.
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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:
(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
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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 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.
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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.
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
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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;
(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
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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 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.
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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 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.
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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 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
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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.
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%
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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).
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.
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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.
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
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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 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.
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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 December 31, 1998, 771,318,305 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.
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.
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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:
(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.
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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.
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.
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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.
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.
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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 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
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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 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.
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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.
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.
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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.
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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
1.4 Form of Underwriting Agreement for Common Stock, to be filed by
Current Report on Form 8-K.
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 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)
4.15 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)
4.16 Certificate of Trust of BNY Capital VI**
4.17 Form of Trust Agreement of BNY Capital VI**
4.18 Certificate of Trust of BNY Capital VII**
4.19 Form of Trust Agreement of BNY Capital VII**
4.20 Certificate of Trust of BNY Capital VIII**
4.21 Form of Trust Agreement of BNY Capital VIII**
4.22 Form of Amended and Restated Trust Agreement of BNY Capital 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)
4.23 Form of Amended and Restated Trust Agreement of BNY Capital VI, VII
and VIII
4.24 Form of Preferred Security Certificate for BNY Capital 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)
4.25 Form of Preferred Security Certificate for BNY Capital VI, VII and
VIII (included as Exhibit D to 4.23)
4.26 Form of Guarantee Agreement for BNY Capital 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)
4.27 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 Richards, Layton & Finger, P.A. as to validity of the
Preferred Securities to be issued by BNY Capital V incorporated by
reference to exhibit 5(d) to the registrant's Registration Statement
on Form S-3 (Nos. 333-40837, and 333-40837-01 through 03)
5.4 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital VI
5.5 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital VII
5.6 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
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)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit
-------
<C> <S>
23.5 Consents of Pepper & Hamilton LLP (included in 5.3, 5.4 and 5.5)
23.6 Consent of Richards, Layton & Finger, P.A. (included in 5.3)
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 V
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 VI
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 VII
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 VIII
25.8 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
25.9 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 VI
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 VII
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 VIII
</TABLE>
** Previously filed
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 1st day of February, 1999.
The Bank of New York Company, Inc.
(Registrant)
/s/ [Bruce Van Suan]
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 1st day of February, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<C> <S>
* Chairman of the Board and Chief Executive
___________________________________________ Officer (Principal Executive Officer) and
(Thomas A. Renyi) Director
* Senior Executive Vice President (Principal
___________________________________________ Financial Officer)
(Bruce Van Saun)
/s/ [Thomas J. Mastro] Comptroller (Principal Accounting Officer)
___________________________________________
(Thomas J. Mastro)
* 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 1st day of February, 1999 on behalf of each of the indicated persons
for whom she 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 1st day of
February, 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 1st day of
February, 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 1st day of
February, 1999.
BNY Capital VIII
By: The Bank of New York Company,
Inc., as Depositor
/s/ [Bruce Van Saun]
By: _________________________________
II-10
<PAGE>
EXHIBIT 1.3
BNY CAPITAL V
BNY CAPITAL VI
BNY CAPITAL VII
BNY CAPITAL VIII
Preferred Securities
guaranteed to the extent set forth in Guarantees by
THE BANK OF NEW YORK COMPANY, INC.
Underwriting Agreement Standard Provisions
(December 1997)
From time to time, BNY Capital V, BNY Capital VI or BNY Capital VII or BNY
Capital VIII, each a statutory business trust formed under the laws of the State
of Delaware (each a Trust and collectively, the "Trusts"), and The Bank of New
York Company, Inc., a New York corporation (the "Company"), as depositor of each
Trust and as Guarantor, may enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, which shall provide that the Trust
identified in the applicable Pricing Agreement (such Trust being the "Designated
Trust" with respect to such Pricing Agreement) shall issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such Firms constituting
the Underwriters, with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred securities (the "Securities")
identified in Schedule I to the applicable Pricing Agreement (with respect to
such Pricing Agreement, the "Firm Designated Securities") representing undivided
beneficial interests in the assets of the Designated Trust. If specified in such
Pricing Agreement, the Designated Trust may grant to the Underwriters the right
to purchase at their election an additional number of Securities, specified in
such Pricing Agreement as provided in Section 3 hereof (the "Optional Designated
Securities"). The Firm Designated Securities and any Optional Designated
Securities, if any, are collectively called the "Designated Securities." The
proceeds of the concurrent sales of the Designated Securities to the public and
of the common securities of the Designated Trust (the "Common Securities") to
the Company are to be invested in junior subordinated deferrable interest
debentures of the Company identified in the Pricing Agreement with respect to
such Designated Securities (with respect to such Pricing Agreement, the
"Subordinated Debentures"), to be issued pursuant to a junior subordinated
indenture dated as of December 25, 1996 between the Company and The First
National Bank of Chicago, as trustee (the "Indenture"). The Designated
Securities may be exchangeable into Subordinated Debentures as specified in
Schedule II to such Pricing Agreement. The Designated Securities will be
guaranteed by the Company to the extent set forth in the Pricing Agreement with
respect to such Designated Securities (with respect to such Pricing Agreement,
the "Guarantee').
<PAGE>
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated trust agreement identified in such Pricing
Agreement (with respect to such Pricing Agreement, the "Trust Agreement").
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. These Underwriting
Agreement Standard Provisions shall not be construed as an obligation of any
Trust to sell any of its preferred securities or as an obligation of any
underwriters to purchase any of such preferred securities. The obligation of
any Trust to issue and sell any of its preferred securities and the obligation
of any underwriters to purchase any of such preferred securities shall be
evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the maximum number of
Firm Designated Securities, the maximum number of Optional Designated
Securities, if any, the initial public offering price of such Firm and Optional
Designated Securities or the manner of determining such price, the terms of the
Designated Securities, including the terms on which and terms of the securities
into which the Designated Securities will be exchangeable, the purchase price to
the Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters, the number of such Designated Securities to be purchased by each
Underwriter and the commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such Firm
and Optional Designated Securities, if any, and payment therefore The Pricing
Agreement shall also specify (to the extent not set forth in the Trust Agreement
with respect thereto or the Registration Statement and Prospectus as amended or
supplemented) the terms of such Designated Securities. Any Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The standard provisions set forth herein will be incorporated by
reference in any Pricing Agreement. The obligations of the Underwriters under
each Pricing Agreement shall be several and not joint.
2. Each of the Designated Trust and the Company, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
a. A registration statement on Form S-3 (File No. 333-70187) (the
"Initial Registration Statement") in respect of the preferred securities of
the Trusts, including the Designated Securities, and the junior
subordinated deferrable interest debentures and guarantees of the Company,
as guarantor, including the Subordinated Debentures and the Guarantee, has
been filed with
-2-
<PAGE>
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus contained therein, to
the Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than the registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore been
filed, or transmitted for filing, with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time such
part of the Initial Registration Statement became effective, but excluding
Form T-1, or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, each as amended at the time such
part of the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus relating
to the preferred securities of the Trusts and the junior subordinated
deferrable interest debentures and the guarantees of the Company related to
such preferred securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to the
date of the relevant Pricing Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus, or Prospectus, as the
case may, be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial
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Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
b. The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Designated Trust or
the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
c. The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Designated Trust or the Company by an underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended
or supplemented relating to such Designated Securities or to that part of
the Registration Statement which shall constitute the Statement of
Eligibility under the Trust Indenture Act (Form T-1) of The First National
Bank of Chicago;
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<PAGE>
d. Since the date of the latest audited financial statements included
in or incorporated by reference in the Registration Statement and the
Prospectus, there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
creditworthiness of the Company and its subsidiaries on a consolidated
basis otherwise than as set forth or contemplated in the Prospectus;
e. Each of the Company and The Bank of New York (the "Bank") has been
duly organized and is validly existing as a corporation or banking
corporation, as the case may be, and is an existing corporation or banking
corporation, as the case may be, in good standing under the laws of the
State of New York;
f. All of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and non-
assessable; and all of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued, are fully paid and non-
assessable (except as provided in Article III of the Banking Law of the
State of New York) and are owned by the Company, free and clear of all
liens, encumbrances, equities or claims;
g. The Designated Trust has been duly organized and is validly
existing as a business trust in good standing under the laws of the State
of Delaware, with power and authority (trust and other) to own its property
and conduct its business as described in the Prospectus, and to enter into
and perform its obligations under this Agreement and the Designated
Securities and to consummate the transactions contemplated by the Pricing
Agreement with respect to such Designated Securities (including without
limitation the provisions hereof incorporated by reference therein); the
Designated Trust has no subsidiaries and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Designated Trust; the Designated Trust has conducted and will conduct no
business other than the transactions contemplated by the Pricing Agreement
(including without limitation the provisions hereof incorporated by
reference therein) and described in the Prospectus as amended and
supplemented with respect to the Designated Securities; the Designated
Trust is not a party to or bound by any agreement or instrument other than
the Pricing Agreement with respect to such Designated Securities (including
without limitation the provisions hereof incorporated by reference
therein), the Trust Agreement of the Designated Trust and the agreements
and instruments contemplated by such Trust Agreement and described in the
Prospectus as amended and supplemented with respect to the Designated
Securities; the Designated Trust has no liabilities or obligations other
than those arising out of the transactions contemplated by the Pricing
Agreement with respect to such Designated
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<PAGE>
Securities (including without limitation the provisions hereof incorporated
by reference therein) and the Trust Agreement of the Designated Trust and
described in the Prospectus as amended and supplemented with respect to
such Designated Securities; the Designated Trust is not a party to or
subject to any action, suit or proceeding of any nature; the Designated
Trust is not, and at the Time of Delivery will not be, classified as an
association taxable as a corporation for United States federal income tax
purposes;
h. The Designated Securities have been duly authorized on behalf of
the Designated Trust by the Company, as depositor of the Designated Trust,
and, when the Firm Designated Securities are issued and delivered pursuant
to the Pricing Agreement (including without limitation the provisions
hereof incorporated by reference therein) with respect to such Designated
Securities and, in the case of any Optional Designated Securities, pursuant
to Over-allotment Options (as defined in Section 3 hereof) with respect to
such Designated Securities, such Designated Securities will have been duly
and validly issued and fully paid and non-assessable beneficial interests
in the Designated Trust entitled to the benefits provided by the Trust
Agreement, which will be substantially in the form filed as an exhibit to
the Registration Statement; and the preferred securities of the Designated
Trust conform to the description thereof contained in the Registration
Statement and the Designated Securities will conform to the description
thereof contained in the Prospectus as amended or supplemented with respect
to such Designated Securities;
i. The holders of the Designated Securities (the "Securityholders")
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware; the issuance of the Designated
Securities is not subject to preemptive or similar rights;
j. The Common Securities of the Designated Trust have been duly
authorized on behalf of the Designated Trust by the Company, as depositor
of the Designated Trust, and upon delivery by the Designated Trust to the
Company against payment therefor as set forth in the Trust Agreement, will
be duly and validly issued and nonassessable beneficial interests in the
Designated Trust and will conform to the description thereof contained in
the Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Time of Delivery (as defined
in Section 4 hereof), all of the issued and outstanding Common Securities
of the Designated Trust will be directly owned by the Company free and
clear of liens, encumbrances, equities or claims;
k. The Guarantee, the Trust Agreement, the Subordinated Debentures,
the Agreement as to Expenses and Liabilities and the Indenture (the
Guarantee, the Trust Agreement, the Subordinated Debentures, the Agreement
as to Expenses and Liabilities and the Indenture being collectively
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<PAGE>
referred to as the "Company Agreements") have each been duly authorized and
when validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee (as defined in the Guarantee), in the
case of the Trust Agreement, by the Issuer Trustees (as defined in the
Trust Agreement) and, in the case of the Indenture, by the Trustee named
therein (the "Debenture Trustee"), and, in the case of the Subordinated
Debentures, when validly issued by the Company and validly authenticated
and delivered by the Debenture Trustee, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; the Trust Agreement, the Indenture and the Guarantee
have each been duly qualified under the Trust Indenture Act; the
Subordinated Debentures are entitled to the benefits of the Indenture; and
the Company Agreements, which will be in substantially the form filed as
exhibits to the Registration Statement, will conform to the descriptions
thereof in the Prospectus as amended or supplemented with respect to the
Designated Securities to which they relate;
l. The issue and sale of the Designated Securities and the compliance
by the Designated Trust with all of the provisions of the Designated
Securities, the Trust Agreement, the Pricing Agreement (including without
limitation the provisions hereof incorporated by reference therein) with
respect to such Designated Securities and the Over-allotment Option with
respect to any Optional Designated Securities, the purchase of the
Subordinated Debentures by the Designated Trust and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Designated Trust is
a party or, by which the Designated Trust is bound or to which any of the
property or assets of the Designated Trust is subject, nor will such action
result in any violation of the provisions of the Trust Agreement or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Designated Trust or any of its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities and the Common
Securities by the Designated Trust, the purchase of the Subordinated
Debentures by the Designated Trust or the consummation by the Designated
Trust of the transactions contemplated by the Pricing Agreement (including
without limitation the provisions hereof incorporated by reference therein)
with respect to such Designated Securities or the Trust Agreement, except
such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue
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<PAGE>
Sky laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
m. The issuance by the Company of the Guarantee, the compliance by
the Company with all of the provisions of the Pricing Agreement (including
without limitation the provisions hereof incorporated by reference therein)
with respect to such Designated Securities, the execution, delivery and
performance by the Company of the Company Agreements, and the consummation
of the transactions contemplated herein and therein will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
bylaws of the Company or the charter or by-laws of any of its subsidiaries
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue of
the Guarantee or the consummation by the Company of the transactions
contemplated by the Pricing Agreement (including without limitation the
provisions hereof incorporated by reference therein) with respect to such
Designated Securities or the Company Agreements except such as have been,
or will have been obtained prior to the Time of Delivery and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
n. There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting, the Company or
any of its subsidiaries (including the Designated Trust), which might
result in any material adverse change in the financial condition,
shareholders' equity or results of operations of the Company and its
subsidiaries (including the Designated Trust) considered as one enterprise;
o. Neither the Designated Trust nor the Company is, nor after giving
effect to the offering and sale of the Designated Securities will either
be, an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended (the "Investment Company Act");
p. Deloitte & Touche LLP, who have certified the financial statements
of the Company and its subsidiaries included in or incorporated by
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<PAGE>
reference in the Prospectus, are independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder; and
q. The Pricing Agreement with respect to the Designated Securities
(incorporating the provisions hereof) has been duly authorized, executed
and delivered by the Company and the Designated Trust.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Firm Designated Securities, the several Underwriters propose to offer the
Firm Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable
to any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities specified in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may be
exercised only by written notice from the Representatives to the Designated
Trust and the Company, given within the period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Designated Securities
to be purchased and the date on which such Optional Designated Securities are to
be delivered (the Second Time of Delivery as defined in Section 4 hereof, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the Representatives, the
Company and the Designated Trust otherwise agree in writing, earlier than or
later than the respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which each
of the Company and the Designated Trust has been advised by the Representatives
have been attributed to such Underwriter, provided that, if each of the Company
and the Designated Trust has not been so advised, the number of Optional
Designated Securities to be so added shall be, in each case, their proportion of
Optional Designated Securities which the number of Firm Designated Securities to
be purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of Optional
Designated Securities which the Underwriters elect to purchase.
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<PAGE>
4. Certificates representing the Firm Designated Securities and the
Optional Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Designated Trust, shall be delivered by or on behalf of the Designated Trust
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer in immediately available funds to the account of the Designated Trust
specified in such Pricing Agreement, (i) with respect to the Firm Designated
Securities, all in the manner and at the place and time and date specified in
such Pricing Agreement or at such other place and time and date as the
Representatives and the Designated Trust may agree upon in writing, such time
and date being herein called the "First Time of Delivery" and (ii) with respect
to the Optional Designated Securities, if any, in the manner and at the time and
date specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives and
the Designated Securities may agree upon in writing, such time and date, if not
the First Time of Delivery, herein called the "Second Time of Delivery". Each
such time and date for delivery is herein called a "Time of Delivery".
5. Each of the Designated Trust and the Company, jointly and severally,
agrees with each of the Underwriters of any Designated Securities:
a. To file the Prospectus as amended or supplemented with respect to
the Designated Securities with the Commission; to make no further amendment
or any supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Designated Securities and prior to the Time of Delivery for such Designated
Securities which shall be reasonably disapproved by the Representatives for
such Designated Securities promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or supplement
after the Time of Delivery for such Designated Securities and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Designated Securities; to
advise the Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Designated
Securities, of the suspension of the qualification of such Designated
Securities or the Subordinated Debentures issuable upon termination of the
Designated Trust for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional
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<PAGE>
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Designated Securities or suspending any such qualification, promptly
to use its best efforts to obtain the withdrawal of such order;
b. Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities or the Subordinated Debentures issuable upon termination of the
Designated Trust for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Designated Securities, provided that in connection therewith
neither the Designated Trust nor the Company shall be required to qualify
as a foreign corporation or to file a general consent to service of process
in any jurisdiction;
c. To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time prior to nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Designated
Securities or the Subordinated Debentures issuable upon termination of the
Designated Trust and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a Prospectus in connection with sales of
the Designated Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
d. In the case of the Company, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company
and its
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<PAGE>
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
e. During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder, any
preferred securities in any of the Trusts, any other beneficial interests
in the assets of the Designated Trust or any other Trust, or any preferred
securities or any other securities of the Designated Trust or the Company,
as the case may be, that are substantially similar to such Designated
Securities (including any guarantee of such securities) or any securities
that are convertible into or exchangeable for, or that represent the right
to receive securities, preferred securities or any such substantially
similar securities of either the Designated Trust, any other Trust or the
Company that are subordinated to the Senior Debt (as defined in the
Indenture) of the Company in a manner substantially similar to the
subordination of the Subordinated Debentures without the prior written
consent of the Representatives;
f. In the case of the Company, to issue the Guarantee concurrently
with the issue and sale of the Designated Securities as contemplated in the
Pricing Agreement with respect to the Designated Securities and in the
Prospectus Supplement as amended and supplemented with respect to the
Designated Securities;
g. To furnish to the holders of the Designated Securities as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and cash flow
of the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail; and
h. If the Company and the Designated Trust elect to rely upon Rule
462(b), the Company and the Designated Trust shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 P.M., Washington, D.C. time, on the date of the Pricing Agreement
with respect to the Designated Securities, and the Company and the
Designated Trust shall at the time of filing either pay to the Commission
the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
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<PAGE>
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Trusts' and the Company's counsel and
accountants in connection with the registration of the preferred securities of
the Trusts and the guarantees and junior subordinated deferrable interest
debentures of the Company under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, these standard provisions, the Pricing Agreement, the Trust
Agreement, the Indenture, the Guarantee, any Blue Sky or similar investment
surveys or memoranda, closing documents (including any compilations thereof and
any other documents in connection with the offering, purchase, sale and delivery
of the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities, the Guarantee and the Subordinated
Debentures for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Designated Securities and the Subordinated
Debentures; (v) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required reviews by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Designated, Securities and the issuance of the Guarantee and the Subordinated
Debentures; (vi) the cost of preparing the Designated Securities and the
Subordinated Debentures; (vii) the fees and expenses of any Trustee, Debenture
Trustee and Guarantee Trustee, and any agent of any trustee and the fees and
disbursements of counsel for any trustee in connection with the Trust Agreement,
the Indenture, the Guarantee and the Designated Securities; (viii) the cost of
qualifying the Designated Securities with The Depository Trust Company; (ix) all
fees and expenses in connection with listing the Designated Securities (and the
Subordinated Debentures, if necessary) on the New York Stock Exchange and the
cost of registering the Designated Securities (and the Subordinated Debentures,
if necessary) under Section 12 of the Exchange Act; and (x) all other costs and
expenses incident to the performance of its obligations or the obligations of
the Designated Trust under the applicable Pricing Agreement under any Over-
allotment Options which are not otherwise specifically provided for in this
Section 6. It is understood, however, that, except as provided in this Section
6, Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Designated Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Company in or incorporated by reference in the Pricing Agreement relating to
such Designated
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<PAGE>
Securities are, at and as of each Time of Delivery for such Designated
Securities, true and correct, the condition that the Designated Trust and the
Company shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
a. No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction;
b. Milbank, Tweed, Hadley & McCloy, Counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated
each Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company and the formation of the Designated Trust, the
validity of the Designated Securities, the Subordinated Debentures, the
Guarantee, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
c. Paul lmmerman, Senior Counsel of The Bank of New York, shall have
furnished to the Representatives such written opinion or opinions, dated
each Time of Delivery for such Designated Securities, inform and substance
satisfactory to the Representatives, to the effect that:
i. Each of the Company and the Bank has been duly incorporated,
and is an existing corporation or banking corporation, respectively,
in good standing under the laws of the State of New York and the
Company has the corporate power and authority to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented relating to the Designated Securities;
ii. The Company Agreements have each been duly authorized,
executed and delivered by the Company and constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; the Company Agreements conform to the
descriptions thereof in the Prospectus as amended or supplemented; the
Subordinated Debentures are entitled to the benefits provided by the
Indenture; and the Trust Agreement, the Indenture and the Guarantee
have each been duly qualified under the Trust Indenture Act;
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iii. The Subordinated Debentures being issued at such Time of
Delivery have been duly authorized in conformity with the terms of the
Indenture, and when such Subordinated Debentures have been duly
executed, authenticated and issued in conformity with the Indenture
and delivered against payment in accordance with the Pricing Agreement
with respect to the Designated Securities will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
iv. The Designated Securities have been duly authorized by the
Company, as depositor, on behalf of the Designated Trust;
v. All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company or the
Designated Trust, as the case may be, on or prior to the date of such
opinion under the Federal laws of the United States and the laws of
the State of New York for the issuance, sale and delivery of the
Designated Securities by the Designated Trust to the Underwriters and
the issuance, sale and delivery by the Company to the Designated Trust
of the Subordinated Debentures and the execution and delivery by the
Company of the Guarantee with respect to the Designated Securities, in
accordance with the Pricing Agreement with respect to the Designated
Securities, have been obtained or made (except that such counsel need
express no opinion with respect to Federal or state securities laws,
other antifraud laws, fraudulent transfer laws, the Employee
Retirement Income Security Act of 1974 and related laws and laws that
restrict transactions between United States persons and citizens or
residents of certain foreign countries);
vi. The Pricing Agreement (including without limitation the
provisions hereof incorporated by reference therein) with respect to
the Designated Securities has been duly authorized, executed and
delivered by the Company;
vii. The execution and delivery by the Company of the Indenture,
the Guarantee and the Pricing Agreement with respect to the Designated
Securities do not, and the issuance of the Subordinated Debentures
being issued at such Time of Delivery in accordance with the
Indenture, the sale by the Company of the Subordinated Debentures as
contemplated in the Prospectus as amended and supplemented and the
performance by the Company of its obligations under the Company
Agreements, the Pricing Agreement with respect to the Designated
Securities and the Subordinated Debentures will not violate the
Company's Restated Certificate of Incorporation, as amended, or
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By-Laws, in each case as in effect at the date of such opinion, result
in a default under or breach of certain agreements specified in an
annex to such opinion, in each case as in effect at the date of such
opinion, or violate any existing Federal law of the United States or
law of the State of New York applicable to the Company (except that
such counsel need express no opinion with respect to Federal or state
securities laws, other antifraud laws, fraudulent transfer laws, the
Employee Retirement Income Security Act of 1974 and related laws and
laws that restrict transactions between United States persons and
citizens or residents of certain foreign countries, and insofar as
performance by the Company of its obligations under the Indenture, the
Pricing Agreement with respect to the Designated Securities and the
Subordinated Debentures is concerned, such counsel need express no
opinion as to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights); and
[THE FOLLOWING OPINION SHALL NOT BE REQUIRED IF IT IS PROVIDED BY
SULLIVAN & CROMWELL] vii Each part of the Registration Statement,
when such part became effective, and the Prospectus, as of its date
(other than the financial statements and other financial data therein,
as to which such counsel need express no opinion), appeared on their
face to be appropriately responsive, in all material respects relevant
to the offering of the Securities, to the requirements of the Act, the
Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder; further, nothing which came to his attention in
the course of his review (as described in such opinion) has caused him
to believe that, insofar as relevant to the offering of the Designated
Securities, any part of the Registration Statement, when such part
became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of its date (other than the financial statements and
other financial data therein, as to which such counsel need express no
opinion), contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; also, nothing that has come to such counsel's attention in
the course of certain procedures (as described in such opinion) has
caused such counsel to believe that the Prospectus, as of the date and
time of delivery of such opinion, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Such counsel may state
that he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for those made under
the captions "Description of
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Junior Subordinated Debentures", "Description of Preferred
Securities", "Description of Guarantees , "Relationship Among the
Preferred Securities, the Corresponding Junior Subordinated
Debentures, the Expense Agreement and the Guarantees" and "Plan of
Distribution" in the Prospectus and under the captions "Certain Terms
of Series B Preferred Securities", "Certain Terms of Series B
Subordinated Debentures" and "Underwriting" in the Prospectus as
amended and supplemented insofar as they relate to provisions of
documents therein described and that he does not express any opinion
or belief as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus or as to the
statements of the eligibility of the Trustee.
d. Sullivan & Cromwell, special counsel to the Company, shall have
furnished to the Representatives their opinion or opinions, dated each Time
of Delivery, in form and substance satisfactory to you, to the effect that:
i. The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
ii. The Subordinated Debentures being issued at such Time of
Delivery have been duly authorized in conformity with the terms of the
Indenture, and when such Subordinated Debentures have been duly
executed, authenticated and issued in conformity with the Indenture
and delivered against payment in accordance with this Agreement will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
iii. The Guarantee has been duly authorized executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
iv. The Pricing Agreement with respect to the Designated
Securities has been duly authorized, executed and delivered by the
Company;
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<PAGE>
v. The Trust is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended',
vi. The statements set forth in the Prospectus under the
captions "Description of Junior Subordinated Debenture", "Description
of Preferred Securities", "Description of Guarantees" and
"Relationship Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures, the Expense Agreement and the Guarantees" and
in the Prospectus as amended or supplemented under the captions
"Certain Terms of Series B Preferred Securities" and "Certain Terms of
Series B Subordinated Debentures" insofar as they purport to
constitute summaries of certain terms of the Designated Securities,
the Subordinated Debentures or the Company Agreements, in each case
constitute accurate summaries of the terms of the Company Agreements
and of such securities, as set forth in the Company Agreements, in all
material respects; and
[THE FOLLOWING OPINION SHALL NOT BE REQUIRED IF IT IS PROVIDED BY
PAUL LMMERMAN] vii Each part of the Registration Statement, when
such part became effective, and the Prospectus, as of its date (other
than the financial statements and other financial data therein, as to
which such counsel need express no opinion), appeared on their face to
be appropriately responsive, in all material respects relevant to the
offering of the Securities, to the requirements of the Act, the Trust
Indenture Act and the applicable rules and regulations of the
Commission thereunder; further, nothing which came to their attention
in the course of their review (as described in such opinion) has
caused them to believe that, insofar as relevant to the offering of
the Designated Securities, any part of the Registration Statement,
when such part became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its date (other than the
financial statements and other financial data therein, as to which
such counsel need express no opinion), contained any untrue statement
of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading; also, nothing that has
come to such counsel's attention in the course of certain procedures
(as described in such opinion) has caused such counsel to believe that
the Prospectus, as of the date and time of delivery of such opinion,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such counsel may state that they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
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<PAGE>
Prospectus except for those made under the captions "Description of
Junior Subordinated Debentures", "Description of Preferred
Securities", "Description of Guarantees", "Relationship Among the
Preferred Securities, the Corresponding Junior Subordinated
Debentures, the Expense Agreement and the Guarantees" and "Plan of
Distribution" in the Prospectus and under the captions "Certain Terms
of Series B Preferred Securities", "Certain Terms of Series B
Subordinated Debentures" and "Underwriting" in the Prospectus as
amended and supplemented insofar as they relate to provisions of
documents therein described and that they do not express any opinion
or belief as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus or as to the
statements of the eligibility of the Trustee.
e. Richards, Layton & Finger, special Delaware Counsel to the
Designated Trust and the Company, shall have furnished to the
Representatives, the Company and the Designated Trust such written opinion
or opinions, dated each Time of Delivery for such Designated Securities, in
form and substance satisfactory to you, to the effect that:
i. The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of
the Designated Trust as a business trust have been made;
ii. Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to own
property and conduct its business, all as described in the Prospectus;
iii. The Trust Agreement constitutes a valid and legally binding
obligation of the Company and the Trustees, enforceable against each
of the Company and the Trustees, in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
iv. Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to (a)
execute and deliver the Pricing Agreement relating to the Designated
Securities (incorporating by reference the provisions hereof) and to
perform its obligations under such Pricing Agreement, and (b) issue
and perform its obligations under the Designated Securities and the
Common Securities;
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<PAGE>
v. Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust of the
Pricing Agreement relating to the Designated Securities (incorporating
by reference the provisions hereof) and the performance by the
Designated Trust of its obligations thereunder, have been duly
authorized by all necessary action on the part of the Designated
Trust;
vi. The Designated Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
beneficial interests in the Designated Trust and are entitled to the
benefits provided by the Trust Agreement; the Securityholders, as
beneficial owners of the Designated Trust, will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such counsel
may note that the Securityholders may be obligated, pursuant to the
Trust Agreement, to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from
transfers or exchanges of certificates representing the Designated
Securities and the issuance of replacement certificates representing
the Designated Securities and (b) provide security and indemnity in
connection with requests of or directions to the Property Trustee (as
defined in the Trust Agreement) to exercise its rights and remedies
under the Trust Agreement;
vii. The Common Securities have been duly authorized by the
Trust Agreement and are validly issued and represent beneficial
interests in the Designated Trust;
viii. Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities is not subject to preemptive rights;
ix. The issuance and sale by the Designated Trust of Designated
Securities and the Common Securities, the execution and delivery of
the Pricing Agreement (incorporating by reference the provisions
hereof) with respect to the Designated Securities and performance by
the Designated Trust of such Pricing Agreement, the consummation by
the Designated Trust of the transactions contemplated thereby and
compliance by the Designated Trust with its obligations thereunder
will not violate (a) any of the provisions of the Certificate of Trust
of the Designated Trust or the Trust Agreement, or (b) any applicable
Delaware law or administrative regulation;
x. Assuming that the Designated Trust derives no income from
or connected with services provided within the State of Delaware
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<PAGE>
and has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by the
Designated Trust solely in connection with the issuance and sale of
the Designated Securities and the Common Securities. In rendering the
opinion expressed in this paragraph (x), such counsel need express no
opinion concerning the securities laws of the State of Delaware;
xi. Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and has
no assets, activities (other than maintaining the Delaware Trustee and
the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, the Securityholders
(other than those holders of the Designated Securities who reside or
are domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result of
their participation in the Designated Trust, and the Designated Trust
will not be liable for any income tax imposed by the State of
Delaware;
f. Sullivan & Cromwell, tax counsel for the Designated Trust and the
Company, shall have furnished to you their written opinion, dated the
respective Time of Delivery, in form and substance satisfactory to you, to
the effect that such firm confirms its opinion set forth in the Prospectus
as amended or supplemented under the caption "Certain Federal Income Tax
Consequences";
g. At each Time of Delivery with respect to the Designated
Securities, Ernst & Young LLP (and/or, if specified in the Pricing
Agreement relating to such Designated Securities, one or more other
independent accountants acceptable to the Representatives) shall have
furnished to you a letter or letters, dated the date of delivery thereof,
in form and substance satisfactory to you, to the effect set forth in Annex
II hereto or as may otherwise be agreed in an additional Schedule to the
Pricing Agreement with respect to such Designated Securities;
h. Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended and supplemented
with respect to the Designated Securities there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as so amended and supplemented, the effect of which is in the
Representatives' judgment after
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<PAGE>
consultation with the Company so material and adverse as to make it
impractical or inadvisable to proceed with the public offering of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as so amended and supplemented;
i. On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any downgrading in the
rating of any debt securities or preferred stock of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities or preferred stock of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating);
j. On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Firm
Designated Securities or Optional Designated Securities or both on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented relating to the Designated Securities;
k. If required by the Pricing Agreement relating to the Designated
Securities, the Designated Securities to be sold by the Designated Trust at
the respective Time of Delivery shall have been duly listed, subject to
notice of issuance, on the New York Stock Exchange; and
l. The Designated Trust and the Company shall have furnished or
caused to be furnished to the Representatives at each Time of Delivery for
the Designated Securities certificates of officers of the Designated Trust
and the Company satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Designated Trust and the Company
herein at and as of such Time of Delivery, as to the performance by each of
the Designated Trust and the Company of all of its obligations hereunder to
be performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (h) of this Section and as to such other
matters as the Representatives may reasonably request.
8. a. The Company and the Designated Trust will, jointly and severally,
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indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company and the Designated
Trust shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities through the
Representative expressly for use therein.
b. Each Underwriter will indemnify and hold harmless the Company and the
Designated Trust against any losses, claims, damages or liabilities to which the
Company or the Designated Trust may become subject insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use therein; and will reimburse the
Company or the Designated Trust, as the case may be, for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such action or claim as such expenses are incurred.
c. Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
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<PAGE>
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
No indemnifying party shall without the prior written consent of the
indemnified party effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is a party and indemnity has been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
d. If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Designated Trust on the one hand and the Underwriters of
the Designated Securities on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Designated Trust on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Designated Trust on the one hand and the Underwriters of the Designated
Securities on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Designated Trust bear to the total compensation received by such Underwriters in
connection with the offering of Designated Securities, in each case as set forth
in the footnote to the table on the cover page of the Prospectus as amended and
supplemented with respect to the Designated Securities. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and the
Designated Trust on the one hand or the Underwriters of the Designated
Securities on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Designated
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Trust and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter of the Designated Securities shall be required to
contribute any amount in excess of the amount by which the total price at which
the Designated Securities purchased by it were resold by it as contemplated in
the Prospectus exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
e. The obligations of the Company and the Designated Trust under this
Section 8 shall be in addition to any liability which the Company or the
Designated Trust may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. a. If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or the Optional Designated Securities which it
has agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or such Optional Designated Securities, as the case may
be, then the Designated Trust and the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Designated Trust and the Company that
they have so arranged for the purchase of such Designated Securities, or the
Designated Trust and the Company notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the Representatives or
the Designated Trust and the Company shall have the right to postpone the Time
of Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Designated Trust and the Company agree
to file promptly any
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amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in these standard provisions shall include any person
substituted under this Section 9 with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
b. If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the
Representatives and the Designated Trust and the Company as provided in
subsection (a) above, the aggregate number of such Designated Securities
which remains unpurchased does not exceed one-eleventh of the aggregate
number of the Firm Designated Securities or Optional Designated Securities,
as the case may be, to be purchased at the respective Time of Delivery,
then the Designated Trust and the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Firm Designated
Securities or Optional Designated Securities, as the case may be, which
such Underwriter agreed to purchase under the Pricing Agreement relating to
such Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm
Designated Securities or Optional Designated Securities, as the case may
be, which such Underwriter agreed to purchase under such Pricing Agreement)
of the Firm Designated Securities or Optional Designated Securities, as the
case may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
c. If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the
Representatives and the Designated Trust and the Company as provided in
subsection (a) above, the aggregate number of Firm Designated Securities or
Optional Designated Securities, as the case may be, which remains
unpurchased exceeds one-eleventh of the aggregate number of the Firm
Designated Securities or Optional Designated Securities, as the case may
be, to be purchased at the respective Time of Delivery, as referred to in
subsection (b) above, or if the Designated Trust and the Company shall not
exercise the right described in subsection (b) above to require non-
defaulting Underwriters to purchase Firm Designated Securities or the Over-
allotment Option relating to such Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Designated Securities or the Over-allotment
Option relating to such Optional Designated Securities, as the case may be,
shall thereupon terminate, without liability on the part of any non-
defaulting Underwriter, the Designated Trust or the Company, except for the
expenses to be borne by the Designated Trust, the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
-26-
<PAGE>
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust, the Company and the several
Underwriters, as set forth herein or made by or on behalf of them, respectively,
pursuant hereto, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the
Designated Trust, the Company, or any officer or director or controlling person
of the Designated Trust or the Company, and shall survive delivery of and
payment for the Designated Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, neither the Designated Trust nor the Company shall
then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Optional Designated Securities covered by such Pricing
Agreement except as provided in Section 6 and Section 8 hereof; but, if for any
other reason, Designated Securities are not delivered by or on behalf of the
Designated Trust as provided herein, the Designated Trust and the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery of
such Designated Securities, but the Designated Trust and the Company shall then
be under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Company, as the case may be, set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Designated Trust and the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
-27-
<PAGE>
13. Each Pricing Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Designated Trust and the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Designated Trust or the Company and each person who controls the
Designated Trust, the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of any such Pricing Agreement. No
purchaser of any of the Designated Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Each Pricing Agreement may be executed by any one or more of the
parties thereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute
one and the same instrument.
-28-
<PAGE>
ANNEX I
Pricing Agreement
To the Underwriters named in
Schedule I hereto
c/o [Names and Addresses of Representatives]
________ ____, ____
Dear Sirs:
BNY Capital _______________, a statutory business trust formed under
the laws of the State of Delaware (the "Designated Trust") and The Bank of New
York Company, Inc., a New York corporation (the "Company"), propose, subject to
the terms and conditions stated herein and in the Underwriting Agreement
Standard Provisions (December 1997) (the "Standard Provisions"), to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
preferred securities of the Designated Trust specified in Schedule II hereto.
The Firm Designated Securities and any Optional Designated Securities the
Underwriters may elect to purchase are herein referred to as the "Designated
Securities". Each of the provisions of the Standard Provisions is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Pricing Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Standard Provisions so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Standard Provisions and the
address of the Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, (a) the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the
<PAGE>
purchase price to the Underwriters set forth in Schedule II hereto, the number
of Firm Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto, and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Designated Securities, as
provided below, the Designated Trust agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Designated Trust at the purchase price to the Underwriters set
forth in Schedule II hereto that portion of the number of Optional Designated
Securities as to which such election shall have been exercised.
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such
election to purchase Optional Designated Securities may be exercised by written
notice from the Representatives to the Designated Trust and the Company given
within a period of [30] calendar days after the date of this Pricing Agreement,
setting forth the aggregate number of Optional Designated Securities to be
purchased and the date on which such Optional Designated Securities are to be
delivered, as determined by the Representatives, but in no event earlier than
the First Time of Delivery or, unless the Representatives, the Company and the
Designated Trust otherwise agree in writing, no earlier than two or later than
ten business days after the date of such notice.
-2-
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us [ten] counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Standard Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Designated Trust and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By:____________________________________
Name:
Title:
BNY CAPITAL ________
By: The Bank of New York Company,
Inc., as Depositor
By:____________________________________
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
_______________________________________
By:____________________________________
Name:
Title:
On behalf of each of the Underwriters
named on Schedule I hereto
-3-
<PAGE>
SCHEDULE I
(TO PRICING AGREEMENT)
Underwriter Number of Maximum
- ----------- Number of Firm Optional Designated
Designated Securities Securities to be
to be Purchased Purchased
---------------------- -------------------
[Names of Representatives]...
[Name of Underwriters].......
Total ----------------------- -------------------
======================= ===================
<PAGE>
SCHEDULE II
(TO PRICING AGREEMENT)
DESIGNATED TRUST:
BNY Capital ______
TITLE OF DESIGNATED SECURITIES:
____% ___________________________ Preferred Securities, Series ____
AGGREGATE PRINCIPAL AMOUNT:
[Aggregate liquidation amount] [Number] of Firm Designated
Securities: [$]__________
Maximum [aggregate liquidation amount] [Number] of Optional
Designated Securities: [$]___________
INITIAL OFFERING PRICE TO PUBLIC
[$______ per Designated Security] [____% of the principal amount of the
Designated Securities]
PURCHASE PRICE BY UNDERWRITERS:
[$______ per Designated Security] [____% of the principal amount of the
Designated Securities]
UNDERWRITERS' COMPENSATION:
$____ per Designated Security
FORM OF DESIGNATED SHARES:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to
be made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.
ACCOUNT FOR PAYMENT OF PURCHASE PRICE:
________________________________
TRUST AGREEMENT:
Amended and Restated Trust Agreement
dated ___________________, between
the Company and the Trustees named therein
<PAGE>
GUARANTEE:
Guarantee Agreement, dated as of _________________, between Company, as
guarantor, the Guarantee Trustee
SUBORDINATED DEBENTURES:
_______% Junior Subordinated Debentures, Series ____
MATURITY:
INTEREST RATE:
_____%
INTEREST PAYMENT DATES:
EXTENSION PERIOD:
[20 quarters]
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
No sinking fund provisions.
[LISTING:
The Company and the Designated Trust shall each use its best efforts
to list, subject to notice of issuance, the Designated Securities on the
New York Stock Exchange and, if the Corporation elects to terminate the
Designated Trust and to distribute the Subordinated Debentures to the
holders of the Designated Securities in liquidation of the Designated
Trust, to use its best efforts to list the Subordinated Debentures, subject
to notice of issuance, on the New York Stock Exchange, prior to such
distribution.]
-2-
<PAGE>
[ACCOUNTANTS LETTERS:
At each Time of Delivery, [insert relevant provisions, if required]
[FIRST] TIME OF DELIVERY:
9:00 a.m., New York City time ______________ ________, _______________
[SECOND TIME OF DELIVERY:
The time and date specified in the notice [delivered/to be delivered] by
the Underwriters pursuant to Section 3 of the Standard Provisions.]
NAMES OF UNDERWRITERS AND NUMBER
OF FIRM DESIGNATED SECURITIES AND
MAXIMUM NUMBER OF OPTIONAL DESIGNATED
SECURITIES TO BE PURCHASED:
As described on Schedule I hereto.
CLOSING LOCATION:
Sullivan & Cromwell
125 Broad Street
New York, New York
NAMES AND ADDRESSES OF REPRESENTATIVES:
-3-
<PAGE>
ANNEX II
Accountants' Letter
Pursuant to Section 7(g) of the Underwriting Agreement Standard
Provisions (December 1997), the Company's independent certified public
accountants shall furnish letters to the effect that:
i. They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder, and the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them;
ii. In their opinion, the consolidated financial statements, and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder; and they have made a review of the interim
financial information of the Company and its subsidiaries for the periods
specified in such letter in accordance with standards established by the
American Institute of Certified Public Accountants;
iii On the basis of limited procedures, not constituting an audit,
consisting of a limited review of the unaudited consolidated financial
statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(1) the unaudited information with respect to the annual consolidated
results of operations and financial position for fiscal years which was included
or incorporated by reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year does not agree with the corresponding amount in the
audited consolidated financial statements for such fiscal years which was
included or incorporated by reference in the Company's Annual Reports on Form
10-K for the last three fiscal years;
(2) the unaudited information with respect to the annual consolidated
results of operations and financial position for such fiscal years which was
included or incorporated by reference in the Prospectus does not agree with the
corresponding amounts in the audited consolidated financial statements for such
fiscal years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for the last three years;
<PAGE>
(3) the unaudited consolidated financial statements included or
incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act and published rules and regulations thereunder or are not fairly presented
in conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(4) any unaudited financial data included in the Prospectus as at any
time, or for any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company do not agree with the
corresponding amounts in the unaudited consolidated financial statements from
which such data are derived;
(5) the unaudited financial data included in the Prospectus do not
agree with the corresponding amounts in the unaudited financial statements which
were not included in the Prospectus but from which were derived such financial
data;
(6) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated shareholders'
equity or allowance for loan losses, in each case as compared with amounts shown
in the latest consolidated statement of condition included or incorporated by
reference in the Prospectus except in each case for changes which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(7) for the period from the date of the latest complete consolidated
financial statements included or incorporated by reference in the Prospectus to
the specified date referred to in (F) above there were any decreases in
consolidated net interest income, net interest income after provision for loan
losses, or the total or fully diluted per share amounts of net income of the
Company, in each case as compared with the comparable period of the preceding
year, except in each case for decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
iv. In addition to the examination referred to in their reports included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraph (iii) above, they have carried out certain specified procedures,
not constituting an audit, with
-2-
<PAGE>
respect to certain amounts, percentages and financial information specified by
the Underwriters which are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), in exhibits to the Registration Statement
specified by the Underwriters or in documents incorporated by reference in the
Prospectus specified by the Underwriters, and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement Standard Provisions (December
1997) as of the date of the letter delivered on the date of the Pricing
Agreement for purposes of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) in
relation to the applicable Designated Securities for purposes of the letter
delivered at the Time of Delivery for such Designated Securities.
-3-
<PAGE>
EXHIBIT 4.23
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
among
THE BANK OF NEW YORK COMPANY, INC.,
as Depositor
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
___________________
Dated as of _______________ ___, _____
___________________
BNY CAPITAL ___
================================================================================
<PAGE>
BNY CAPITAL ___
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- ----------- ------------
<S> <C>
(S) 310 (a)(1) ................................................................... 8.7
(a)(2) ................................................................... 8.7
(a)(3) ................................................................... 8.9
(a)(4) ................................................................... 2.7(a)(ii)
(b) ...................................................................... 8.8
(S) 311 (a) ...................................................................... 8.13
(b) ...................................................................... 8.13
(S) 312 (a) ...................................................................... 5.8
(b) ...................................................................... 5.8
(c) ...................................................................... 5.8
(S) 313 (a) ...................................................................... 8.15(a)
(a)(4) ................................................................... 8.15(b)
(b) ...................................................................... 8.15(b)
(c) ...................................................................... 10.8
(d) ...................................................................... 8.15(c)
(S) 314 (a) ...................................................................... 8.16
(b) ...................................................................... Not Applicable
(c)(1) ................................................................... 8.17
(c)(2) ................................................................... 8.17
(c)(3) ................................................................... Not Applicable
(d) ...................................................................... Not Applicable
(e) ...................................................................... 1.1, 8.17
(S) 315 (a) ...................................................................... 8.1(a), 8.3(a)
(b) ...................................................................... 8.2, 10.8
(c) ...................................................................... 8.1(a)
(d) ...................................................................... 8.1, 8.3
(e) ...................................................................... Not Applicable
(S) 316 (a) ...................................................................... Not Applicable
(a)(1)(A) ................................................................ Not Applicable
(a)(1)(B) ................................................................ Not Applicable
(a)(2) ................................................................... Not Applicable
(b) ...................................................................... 5.15
(c) ...................................................................... 6.7
</TABLE>
<PAGE>
<TABLE>
<S> <C>
(S) 317 (a)(1) ................................................................... Not Applicable
(a)(2) ................................................................... Not Applicable
(b) ...................................................................... 5.10
(S) 318 (a) ...................................................................... 10.10
</TABLE>
_________
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
DEFINED TERMS
<TABLE>
<S> <C>
SECTION 1.1. Definitions............................................................. 1
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.................................................................... 11
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business................................................................ 11
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses................................................................ 12
SECTION 2.4. Issuance of the Preferred Securities.................................... 12
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.................................................. 12
SECTION 2.6. Continuation of Trust................................................... 13
SECTION 2.7. Authorization to Enter into Certain Transactions........................ 13
SECTION 2.8. Assets of Trust......................................................... 17
SECTION 2.9. Title to Trust Property................................................. 17
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account......................................................... 17
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions........................................................... 18
SECTION 4.2. Redemption.............................................................. 19
SECTION 4.3. Subordination of Common Securities...................................... 21
SECTION 4.4. Payment Procedures...................................................... 22
SECTION 4.5. Tax Returns and Reports................................................. 22
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust...................... 22
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 4.7. Payments under Indenture or Pursuant to Direct
Actions................................................................. 23
SECTION 4.8. Liability of the Holder of Common Securities............................ 23
ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership....................................................... 23
SECTION 5.2. The Securities Certificates............................................. 23
SECTION 5.3. Execution and Delivery of Securities Certificates....................... 24
SECTION 5.4. Book-Entry Preferred Securities......................................... 24
SECTION 5.5. Registration of Transfer and Exchange of Preferred
Securities Certificates................................................. 26
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities
Certificates............................................................ 28
SECTION 5.7. Persons Deemed Holders.................................................. 28
SECTION 5.8. Access to List of Holders' Names and Addresses.......................... 28
SECTION 5.9. Maintenance of Office or Agency......................................... 29
SECTION 5.10. Appointment of Paying Agents............................................ 29
SECTION 5.11. Ownership of Common Securities by Depositor............................. 29
SECTION 5.12. Notices to Clearing Agency.............................................. 30
SECTION 5.13. Rights of Holders; Waivers of Past Defaults............................. 30
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights............................................ 33
SECTION 6.2. Notice of Meetings...................................................... 34
SECTION 6.3. Meetings of Holders of the Preferred Securities......................... 34
SECTION 6.4. Voting Rights........................................................... 35
SECTION 6.5. Proxies, etc............................................................ 35
SECTION 6.6. Holder Action by Written Consent........................................ 35
SECTION 6.7. Record Date for Voting and Other Purposes............................... 35
SECTION 6.8. Acts of Holders......................................................... 35
SECTION 6.9. Inspection of Records................................................... 37
</TABLE>
<PAGE>
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
<TABLE>
<S> <C>
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee................................................ 37
SECTION 7.2. Representations and Warranties of Depositor............................. 38
ARTICLE VIII.
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities..................................... 39
SECTION 8.2. Certain Notices......................................................... 41
SECTION 8.3. Certain Rights of Property Trustee...................................... 42
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.................. 44
SECTION 8.5. May Hold Securities..................................................... 44
SECTION 8.6. Compensation; Indemnity; Fees........................................... 44
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees................................................................ 45
SECTION 8.8. Conflicting Interests................................................... 46
SECTION 8.9. Co-Trustees and Separate Trustee........................................ 46
SECTION 8.10. Resignation and Removal; Appointment of Successor....................... 48
SECTION 8.11. Acceptance of Appointment by Successor.................................. 49
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business................................................................ 50
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Issuer Trust............................................................ 50
SECTION 8.14. Property Trustee May File Proofs of Claim............................... 51
SECTION 8.15. Reports by Property Trustee............................................. 51
SECTION 8.16. Reports to the Property Trustee......................................... 52
SECTION 8.17. Evidence of Compliance with Conditions Precedent........................ 52
SECTION 8.18. Number of Issuer Trustees............................................... 53
SECTION 8.19. Delegation of Power..................................................... 53
SECTION 8.20. Appointment of Administrative Trustees.................................. 53
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date........................................ 54
SECTION 9.2. Early Termination....................................................... 54
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 9.3. Termination............................................................. 55
SECTION 9.4. Liquidation............................................................. 55
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements
of Issuer Trust......................................................... 56
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders......................................... 58
SECTION 10.2. Amendment............................................................... 58
SECTION 10.3. Separability............................................................ 59
SECTION 10.4. Governing Law........................................................... 59
SECTION 10.5. Payments Due on Non-Business Day........................................ 60
SECTION 10.6. Successors.............................................................. 60
SECTION 10.7. Headings................................................................ 60
SECTION 10.8. Reports, Notices and Demands............................................ 60
SECTION 10.9. Agreement Not to Petition............................................... 61
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.................. 61
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture................................................. 62
SECTION 10.12. Counterparts............................................................ 62
</TABLE>
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Expense Agreement
Exhibit D Form of Preferred Securities Certificate
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ________ __,____, among
(i) The Bank of New York Company, Inc., a New York corporation (including any
successors or assigns, the "Depositor"), (ii) The First National Bank of
Chicago, a national banking association, as property trustee (in such capacity,
the "Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) First Chicago Delaware Inc., a
Delaware corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee"), (iv) _______________ , an individual, and ______________, an
individual, each of whose address is c/o The Bank of New York Company, Inc., One
Wall Street, New York, New York 10286 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees being referred to collectively as the
"Issuer Trustees"), and (v) the several Holders, as hereinafter defined.
Witnesseth
Whereas, the Depositor and certain other parties have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into a Trust Agreement, dated as of ____________ ___,
_____ (the "Original Trust Agreement"), and by the filing with the Secretary of
State of the State of Delaware of the Certificate of Trust, filed on
_____________ ___, _____, attached as Exhibit A; and
Whereas, the Depositor and the Issuer Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Issuer
Trust to the Depositor, (ii) the issuance and sale of the Preferred Securities
by the Issuer Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Debentures, and (iv) the appointment of the Administrative
Trustees;
Now Therefore, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
Defined Terms
Section 1.1 Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
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(a) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(e) Unless the context otherwise requires, any reference to an "Article", a
"Section" or an "Exhibit" refers to an Article, a Section or an Exhibit, as the
case may be, of or to this Trust Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrative Trustee of the
Issuer Trust heretofore created and continued hereunder and not in such Person's
individual capacity, or any successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Book-
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Entry Preferred Security, the rules and procedures of the Clearing Agency for
such Book-Entry Preferred Security, in each case to the extent applicable to
such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or the
Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or officers of the Depositor to which authority
to act on behalf of the Board of Directors has been delegated and to be in full
force and effect on the date of such certification, and delivered to the Issuer
Trustees.
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"Book-Entry Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Book-Entry Preferred Securities issued in
global, fully registered form to the Clearing Agency or its nominee in
accordance with Section 5.4.
"Book-Entry Preferred Security" means a Preferred Security, the ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 5.4.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed, or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Issuer
Trust, the Depositor and DTC, as the same may be amended and supplemented from
time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means the Time of Delivery, which date is also the date of
execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Securities and Exchange Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit B.
"Common Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $___ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located in Chicago,
Illinois, and (ii) when used with
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respect to the Debenture Trustee, the principal office of the Debenture Trustee
located in Chicago, Illinois.
"Debenture Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of such Debentures
under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Debentures" means the Depositor's ___% Junior Subordinated Deferrable
Interest Debentures, Series E, issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means Preferred Securities
Certificates issued in certificated, fully registered form as provided in
Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code (S) 3801 et seq., or any successor statute thereto, in each
--- ----
case as amended from time to time.
"Delaware Trustee" means the Person identified as such in the preamble to
this Trust Agreement, solely in its capacity as Delaware Trustee of the trust
heretofore created and continued hereunder and not in its individual capacity,
or its successor in interest in such capacity, or any successor Delaware trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
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"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(c) default by the Issuer Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Issuer Trustees in this Trust Agreement (other
than those specified in clause (b) or (c) above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer Trustees and to the Depositor
by the Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Preferred Securities a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within 90
days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any successor
statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities,
dated as of the Closing Date, between the Depositor, in its capacity as holder
of the Common Securities, and the Issuer Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee Agreement" means the Guarantee Agreement, dated as of the date
hereof, executed and delivered by the Depositor and The First National Bank of
Chicago, as guarantee trustee, contemporaneously with the execution and delivery
of this Trust Agreement, for the benefit of the holders of the Preferred
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
are registered in the Securities Register; any such Person shall be deemed to be
a beneficial owner within the meaning of the Delaware Business Trust Act.
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<PAGE>
"Indenture" means the Junior Subordinated Indenture, dated as of December
25, 1996, between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Issuer Trust" means the Delaware business trust known as "BNY Capital ___"
which was formed on _____________ ___, _____under the Delaware Business Trust
Act pursuant to the Original Trust Agreement and the filing of the Certificate
of Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously repaid or redeemed in accordance
with the Indenture, the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, (b) with respect to a distribution of Debentures
to Holders of Trust Securities in connection with a dissolution or liquidation
of the Issuer Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Debentures
are distributed, and (c) with respect to any distribution of Additional Amounts
to Holders of Trust Securities, Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities in respect of which such
distribution is made.
"Liquidation Amount" means the stated amount of $___ per Trust Security.
"Liquidation Date" means the date of the dissolution, winding-up or
termination of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or "Majority
in Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Preferred Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Preferred Securities or Common Securities, as the case may be.
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<PAGE>
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Depositor, and delivered to the Issuer Trustees. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that such
officer has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any
Paying Agent; provided that, if such Trust Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Trust
Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction,
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notice, consent or waiver hereunder, Preferred Securities owned by the
Depositor, any Issuer Trustee or any Affiliate of the Depositor or of any Issuer
Trustee shall be disregarded and deemed not to be Outstanding, except that (a)
in determining whether any Issuer Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Issuer Trustee knows to be so owned shall be so
disregarded, and (b) the foregoing clause (a) shall not apply at any time when
all of the Outstanding Preferred Securities are owned by the Depositor, one or
more of the Issuer Trustees and/or any such Affiliate. Preferred Securities so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Preferred Securities and that the
pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Book-Entry
Preferred Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.10 and shall initially be The Bank of New York.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with The Bank of New York in its
trust department for the benefit of the Holders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through a Paying Agent, shall make payments to the Holders in accordance with
Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $___ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Trust Securities, substantially in the form attached as Exhibit D.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Property Trustee
of the trust heretofore formed
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and continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the Maturity (as defined in the
Indenture) of the Debentures shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Securities Act" means the Securities Act of 1933 and any successor statute
thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Successor Preferred Securities" of any particular Preferred Securities
Certificate means every Preferred Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer Trust
as that evidenced by, such particular Preferred Securities Certificate; and, for
the purposes of this definition, any Preferred Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Preferred Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Preferred Securities Certificate.
"Time of Delivery" has the meaning specified in the Underwriting Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits, and (ii) for all purposes of this
Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that if
the Trust Indenture Act of 1939
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is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account, and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Underwriting Agreement" means the Pricing Agreement, dated as of
__________ ___, _____, among the Issuer Trust, the Depositor and the
representatives of the several underwriters named therein, incorporating the
Underwriting Agreement Standard Provisions (December 1997) referred to therein,
as the same may be amended from time to time.
"Vice President," when used with respect to the Depositor, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
ARTICLE II.
Continuation of the Issuer Trust
Section 2.1 Name.
The trust continued hereby shall be known as "BNY Capital __", as such name
may be modified from time to time by the Administrative Trustees following
written notice to the Holders of Trust Securities and the other Issuer Trustees,
in which name the Issuer Trustees may conduct the business of the Issuer Trust,
make and execute contracts and other instruments on behalf of the Issuer Trust
and sue and be sued.
Section 2.2 Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is 300 King
Street, Wilmington, Delaware 19801, Attention: Michael J. Majchrzak, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Holders, the Depositor, the Property Trustee and the
Administrative Trustees. The principal executive office of the Issuer Trust is
One Wall Street, New York, New York 10286, Attention: Secretary.
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Section 2.3 Initial Contribution of Trust Property; Organizational
Expenses.
The Issuer Trustees acknowledge receipt from the Depositor in connection
with the Original Trust Agreement of the sum of $__, which constituted the
initial Trust Property. The Depositor shall pay organizational expenses of the
Issuer Trust as they arise or shall, upon request of any Issuer Trustee,
promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.4 Issuance of the Preferred Securities.
On ____________ ___, _____, the Depositor, both on its own behalf and on
behalf of the Issuer Trust pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the execution
and delivery of this Trust Agreement, an Administrative Trustee, on behalf of
the Issuer Trust, shall manually execute in accordance with Sections 5.2, 5.3
and 8.9(a) and the Property Trustee shall deliver to the underwriters pursuant
to the Underwriting Agreement, Book-Entry Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing Agency, evidencing
an aggregate of _________ Preferred Securities having an aggregate Liquidation
Amount of $_____________, against receipt of the aggregate purchase price of
such Preferred Securities of $_____________, by the Property Trustee.
Section 2.5 Issuance of the Common Securities; Subscription and Purchase
of Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrative Trustee, on behalf of the Issuer Trust, shall manually execute
in accordance with Sections 5.2 and 5.3 and the Property Trustee shall deliver
to the Depositor, Common Securities Certificates, registered in the name of the
Depositor, evidencing an aggregate of _______ Common Securities having an
aggregate Liquidation Amount of $_________, against receipt of the aggregate
purchase price of such Common Securities of $_________, by the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Issuer
Trust, shall subscribe for and purchase from the Depositor Debentures,
registered in the name of the Property Trustee on behalf of the Issuer Trust and
having an aggregate principal amount equal to $___________, and, in satisfaction
of the purchase price for such Debentures, the Property Trustee, on behalf of
the Issuer Trust, shall deliver to the Depositor the sum of $___________ (being
the sum of the amounts delivered to the Property Trustee pursuant to (i) the
second sentence of Section 2.4, and (ii) the first sentence of this Section
2.5).
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Section 2.6 Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in only those activities necessary or incidental
thereto. The Depositor hereby reaffirms the appointment of the Property Trustee
and the Delaware Trustee and appoints the Administrative Trustees as trustees of
the Issuer Trust, to have all the rights, powers and duties to the extent set
forth herein, and the respective Issuer Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property upon
and subject to the conditions set forth herein for the benefit of the Issuer
Trust and the Holders. The Administrative Trustees shall have all rights, powers
and duties set forth herein and in accordance with applicable law with respect
to accomplishing the purposes of the Issuer Trust. The Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any
of the duties and responsibilities, of the Issuer Trustees specified in this
Trust Agreement, except as mandated by the Delaware Business Trust Act. The
Delaware Trustee shall be one of the trustees of the Issuer Trust for the sole
and limited purpose of fulfilling the requirements of Section 3807(a) of the
Delaware Business Trust Act and for taking such actions as are required to be
taken by a Delaware trustee under the Delaware Business Trust Act.
Section 2.7 Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section 2.7, and in accordance with the
following provisions (i) and (ii), the Issuer Trustees shall have the authority
to enter into all transactions and agreements determined by the Issuer Trustees
to be appropriate in exercising the authority, express or implied, otherwise
granted to the Issuer Trustees under this Trust Agreement, and to perform all
acts in furtherance thereof, including, without limitation, the following:
(i) Each Administrative Trustee shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to execute,
deliver and perform on behalf of the Issuer Trust, the Expense
Agreement and the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in connection with the
purposes and function of the Issuer Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act, and under applicable state securities or
blue sky laws and the
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qualification of this Trust Agreement as a trust indenture under the
Trust Indenture Act;
(D) assisting in obtaining the listing of the Preferred
Securities upon such securities exchange or exchanges as shall be
determined by the Depositor, with the registration of the Preferred
Securities under the Exchange Act and with the preparation and filing
of all periodic and other reports and other documents pursuant to the
foregoing;
(E) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the
Debentures to the Holders in accordance with this Trust Agreement;
(F) the consent to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with this
Trust Agreement (which consent shall not be unreasonably withheld);
(G) execution of the Trust Securities on behalf of the Issuer
Trust in accordance with this Trust Agreement;
(H) execution and delivery of closing certificates, if any,
pursuant to the Underwriting Agreement and application for a taxpayer
identification number for the Issuer Trust;
(I) unless otherwise determined by the Property Trustee or
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities or as otherwise required by the Delaware Business Trust Act
or the Trust Indenture Act, to execute on behalf of the Issuer Trust
(either acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have the
power to execute pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the foregoing as the
Issuer Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power, duty and authority to
act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
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(C) the collection of interest, principal and any other
payments made in respect of the Debentures and the holding of such
amounts in the Payment Account;
(D) the distribution through any Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of
a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the Holders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Issuer Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee) the taking of
any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect
to the terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust
(or the Issuer Trustees acting on behalf of the Issuer Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Issuer Trustees (acting on
behalf of the Issuer Trust) shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would reasonably be expected to
cause the Issuer Trust to become taxable as a corporation or classified as other
than a grantor trust for United States Federal income tax purposes, (iv) incur
any indebtedness for borrowed money or issue any other debt, or (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property. The Administrative Trustees shall defend all claims and demands
of all Persons at any time claiming any Lien on any of the
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Trust Property adverse to the interest of the Iss uer Trust or the Holders in
their capacity as Holders.
(c) In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto and the taking of any action
necessary or desirable to sell the Preferred Securities in a transaction or
a series of transactions pursuant thereto;
(ii) the determination of the States or other jurisdictions, if any,
in which to take appropriate action to qualify or register for sale all or
part of the Preferred Securities and the determination of any and all such
acts, other than actions that must be taken by or on behalf of the Issuer
Trust, and the advice to the Issuer Trust of actions they must take on
behalf of the Issuer Trust, and the preparation for execution and filing of
any documents to be executed and filed by the Issuer Trust or on behalf of
the Issuer Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such States in connection with the
sale of the Preferred Securities;
(iii) the preparation for filing by the Issuer Trust and execution on
behalf of the Issuer Trust of an application to the New York Stock Exchange
or any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act,
including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Issuer Trustees
are authorized and directed to conduct the affairs of the Issuer Trust and to
operate the Issuer Trust so that the Issuer
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Trust will not be deemed to be an "investment company" required to be registered
under the Investment Company Act, and will not be taxable as a corporation or
classified as other than a grantor trust for United States Federal income tax
purposes and so that the Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In this connection,
each Administrative Trustee, the Property Trustee and the Holders of at least a
Majority in Liquidation Amount of the Common Securities each are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that any such Administrative Trustee, the Property
Trustee or Holders of Common Securities determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the
Outstanding Preferred Securities. In no event shall the Issuer Trustees be
liable to the Issuer Trust or the Holders for any failure to comply with this
section that results from a change in law or regulation or in the interpretation
thereof.
Section 2.8 Assets of Trust.
The assets of the Issuer Trust shall consist of the Trust Property.
Section 2.9 Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
ARTICLE III
Payment Account
Section 3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and its agents shall have exclusive
control and sole right of withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other property deposited or
held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Holders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the
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Debentures. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section 4.1 Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including any Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including any Additional Interest, as defined in the Indenture) are
made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall accumulate
from _______________, _____, and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment of interest on
the Debentures pursuant to the Indenture, shall be payable quarterly in
arrears on _______, ________, _________ and _________ of each year,
commencing on __________ ___, _____. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on the date on
which such payment was originally payable (each date on which distributions
are payable in accordance with this Section 4.1(a), a "Distribution Date").
(ii) Distributions shall accumulate in respect of the Preferred
Securities at a rate of ___% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period less
than a full Distribution period shall be computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days elapsed in a
partial month in a period. Distributions payable for each full Distribution
period will be computed by dividing the rate per annum by four. The amount
of Distributions payable for any period shall include any Additional
Amounts in respect of such period.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Issuer Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
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(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the fifteenth day
(whether or not a Business Day) immediately preceding the relevant Distribution
Date.
Section 4.2 Redemption.
(a) On each Debenture Redemption Date and on the Maturity (as defined in
the Indenture) of the Debentures, the Issuer Trust will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by first-
class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior
to the Redemption Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to (and as defined in
the Indenture) together with a statement that it is an estimate and that
the actual Redemption Price will be calculated on the third Business Day
prior to the Redemption Date (and if an estimate is provided, a further
notice shall be sent of the actual Redemption Price on the date that such
Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Preferred Securities
affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall indicate the
"CUSIP" numbers of the Trust Securities in notices of redemption and related
materials as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers
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either as printed on the Trust Securities or as contained in any notice of
redemption and related materials.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Issuer Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, with respect to
Book-Entry Preferred Securities, irrevocably deposit with the Clearing Agency
for such Book-Entry Preferred Securities, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities. With respect to Preferred
Securities that are not Book-Entry Preferred Securities, the Property Trustee,
subject to Section 4.2(c), will irrevocably deposit with the Paying Agent or
Paying Agents, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent or Paying Agents
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Securities
Register on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and such
Securities will cease to be Outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Issuer
Trust or by the Depositor pursuant to the Guarantee Agreement, Distributions on
such Trust Securities will continue to accumulate, as set forth in Section 4.1,
from the Redemption Date originally established by the Issuer Trust for such
Trust Securities to the date such Redemption Price is actually paid, in which
case the actual payment date will be the date fixed for redemption for purposes
of calculating the Redemption Price.
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(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Preferred Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed shall be selected on a pro rata basis based upon their
respective Liquidation Amounts not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption; provided that so long as the Preferred
Securities are represented by one or more Book-Entry Preferred Securities
Certificates, such selection shall be made in accordance with the customary
procedures for the Clearing Agency for the Book-Entry Preferred Securities. The
Property Trustee shall promptly notify the Securities Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities that has been or is to be redeemed.
Section 4.3 Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on, the
Redemption Price of, and the Liquidation Distribution in respect of the Trust
Securities, as applicable, shall be made, subject to Section 4.2(e), pro rata
among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of Default
resulting from a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including any Additional Amounts)
on, Redemption Price of, or Liquidation Distribution in respect of any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including any Additional
Amounts) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation Distribution on all
Outstanding Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including any Additional
Amounts) on, or the Redemption Price of, the Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holders of the Common Securities shall have
no right to act with respect to any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until
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all such Events of Default under this Trust Agreement with respect to the
Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not on behalf of the Holder of all the Common Securities, and
only the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.4 Payment Procedures.
Payments of Distributions (including any Additional Amounts) or of the
Redemption Price, Liquidation Amount or any other amounts in respect of the
Preferred Securities shall be made at the corporate trust office or at the
offices of any Paying Agent appointed by the Administrative Trustees; provided
that such payments may, at the option of the Administrative Trustees, be made by
check mailed to the address of the Person entitled thereto as such address shall
appear on the Securities Register or by wire transfer or, if the Preferred
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds pursuant to the Applicable
Procedures. Payments in respect of the Common Securities shall be made in such
manner as shall be mutually agreed between the Property Trustee and the Holder
of all the Common Securities.
Section 4.5 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Issuer Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
Section 4.6 Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Issuer Trust by the United
States or any other taxing authority.
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Section 4.7 Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities (or any
Owner with respect thereto) shall be reduced by the amount of any corresponding
payment such Holder (or Owner) has directly received pursuant to Section 5.8 of
the Indenture or Section 5.13 of this Trust Agreement.
Section 4.8 Liability of the Holder of Common Securities.
Any Holder of the Common Securities shall be liable for the debts and
obligations of the Issuer Trust in the manner and to the extent set forth with
respect to the Common Securityholder (as defined in the Expense Agreement) and
agrees that it shall be subject to all liabilities to which the Common
Securityholder may be subject, and shall make all payments that the Common
Securityholder is required to make, under the terms of the Expense Agreement.
ARTICLE V.
Securities Certificates
Section 5.1 Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the
Depositor referred to in Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are Outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
Section 5.2 The Securities Certificates.
(a) The Preferred Securities Certificates shall be issued in minimum
denominations of $___ Liquidation Amount and integral multiples of $___ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $___ Liquidation Amount and integral multiples thereof. The
Securities Certificates shall be executed on behalf of the Issuer Trust by
manual signature of at least one Administrative Trustee. Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Issuer
Trust, shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Securities Certificates
or did not hold such offices at the date of delivery of such Securities
Certificates. A transferee of a Securities Certificate shall become a Holder,
and shall be entitled to the rights and subject to the obligations of a Holder
hereunder, upon due registration of such Securities Certificate in such
transferee's name pursuant to Section 5.5.
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(b) Upon their original issuance, Preferred Securities Certificates shall
be issued in the form of one or more Book-Entry Preferred Securities
Certificates registered in the name of DTC, as Clearing Agency, or its nominee
and deposited with DTC or a custodian for DTC for credit by DTC to the
respective accounts of the Owners thereof (or such other accounts as they may
direct).
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.3 Execution and Delivery of Securities Certificates.
At the Time of Delivery, an Administrative Trustee shall cause Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Issuer Trust and delivered to or upon the
written order of the Depositor, executed by an authorized officer thereof,
without further corporate action by the Depositor, in authorized denominations
in accordance with Sections 2.4 and 2.5.
Section 5.4 Book-Entry Preferred Securities.
(a) Each Book-Entry Preferred Securities Certificate issued under this
Agreement shall be registered in the name of the Clearing Agency or a nominee
thereof and delivered to such Clearing Agency or a nominee thereof or custodian
therefor, and each such Book-Entry Preferred Securities Certificate shall
constitute a single Preferred Securities Certificate for all purposes of this
Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no Book-
Entry Preferred Securities Certificate may be exchanged in whole or in part for
Preferred Securities Certificates registered, and no transfer of a Book-Entry
Preferred Securities Certificate in whole or in part may be registered, in the
name of any Person other than the Clearing Agency for such Book-Entry Preferred
Securities Certificates or a nominee thereof unless (i) the Clearing Agency
advises the Property Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Preferred Securities Certificates, and the Property Trustee is unable
to locate a qualified successor, (ii) the Issuer Trust at its option advises the
Clearing Agency in writing that it elects to terminate the book-entry system
through the Clearing Agency, or (iii) a Debenture Event of Default has occurred
and is continuing. Upon the occurrence of any event specified in clause (i),
(ii) or (iii) above, the Administrative Trustees shall notify the Clearing
Agency and instruct the Clearing Agency to notify all Owners of Book-Entry
Preferred Securities and the Delaware Trustee of the occurrence of such event
and of the availability of the Definitive Preferred Securities Certificates to
Owners of the Preferred Securities requesting the same.
(c) If any Book-Entry Preferred Securities Certificate is to be exchanged
for other Preferred Securities Certificates or canceled in part, or if any other
Preferred Securities Certificate is to be
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exchanged in whole or in part for Book-Entry Preferred Securities represented by
a Book-Entry Preferred Securities Certificate, then either (i) such Book-Entry
Preferred Securities Certificate shall be so surrendered for exchange or
cancellation as provided in this Article Five or (ii) the aggregate Liquidation
Amount represented by such Book-Entry Preferred Securities Certificate shall be
reduced, subject to Section 5.2, or increased by an amount equal to the
Liquidation Amount represented by that portion of the Book-Entry Preferred
Securities Certificate to be so exchanged or canceled, or equal to the
Liquidation Amount represented by such other Preferred Securities Certificates
to be so exchanged for Book-Entry Preferred Securities represented thereby, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records. Upon surrender
to the Administrative Trustees or the Securities Registrar of the Book-Entry
Preferred Securities Certificate or Certificates by the Clearing Agency,
accompanied by registration instructions, the Administrative Trustees, or any
one of them, shall execute the Definitive Preferred Securities Certificates in
accordance with the instructions of the Clearing Agency. None of the Securities
Registrar, the Issuer Trustees or the Administrative Trustees shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Issuer Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Holders. The Definitive Preferred Securities Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees or any one of them.
(d) Every Preferred Securities Certificate executed and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Book-Entry
Preferred Securities Certificate or any portion thereof, whether pursuant to
this Article V or Article IV or otherwise, shall be executed and delivered in
the form of, and shall be, a Book-Entry Preferred Securities Certificate, unless
such Preferred Securities Certificate is registered in the name of a Person
other than the Clearing Agency for such Book-Entry Preferred Securities
Certificate or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a Book-
Entry Preferred Securities Certificate, shall be the Holder of such Book-Entry
Preferred Securities Certificate for all purposes under this Agreement and the
Book-Entry Preferred Securities Certificate, and Owners with respect to a Book-
Entry Preferred Securities Certificate shall hold such interests pursuant to the
Applicable Procedures. The Securities Registrar, the Administrative Trustees and
the Issuer Trustees shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Book-Entry Preferred Securities represented thereby and the
giving of instructions or directions by Owners of Book-Entry Preferred
Securities represented thereby) as the sole Holder of the Book-Entry Preferred
Securities represented thereby and shall have no obligations to the Owners
thereof. None of the Property Trustee, the
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Administrative Trustees nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Preferred Securities shall be
exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants; provided that,
solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, so long as Definitive Preferred Security Certificates have not
been issued, the Issuer Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument (including a proxy) delivered to
the Issuer Trustees by the Clearing Agency setting forth the Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part. Pursuant to the Certificate Depository Agreement, unless and until
Definitive Preferred Securities Certificates are issued pursuant to Section
5.4(b), the initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants, and none of the Depositor, the
Administrative Trustees or the Issuer Trustees shall have any responsibility or
obligation with respect thereto.
Section 5.5 Registration of Transfer and Exchange of Preferred
Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.9, a register or registers (the
"Securities Register") in which the registrar and transfer agent with respect to
the Trust Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
5.11 in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein provided.
The Property Trustee is hereby appointed Securities Registrar for the purpose of
registering Preferred Securities Certificates and (subject to Section 5.11)
Common Securities Certificates and transfers and exchanges thereof as provided
herein.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrative Trustees or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
as may be required by this Trust Agreement, dated the date of execution by such
Administrative Trustee or Trustees.
The Securities Registrar shall not be required, (i) to issue, register the
transfer of or exchange any Preferred Security during a period beginning at the
opening of business 15 days
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before the day of selection for redemption of such Preferred Securities pursuant
to Article IV and ending at the close of business on the day of mailing of the
notice of redemption, or (ii) to register the transfer of or exchange any
Preferred Security so selected for redemption in whole or in part, except, in
the case of any such Preferred Security to be redeemed in part, any portion
thereof not to be redeemed.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to an Administrative
Trustee and the Securities Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Preferred Securities
Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Property Trustee in accordance with
such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Issuer Trust may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Preferred Securities
Certificates.
(b) Notwithstanding any other provision of this Agreement, transfers and
exchanges of Preferred Securities Certificates and beneficial interests in a
Book-Entry Preferred Securities Certificate of the kinds specified in this
Section 5.5(b) shall be made only in accordance with this Section 5.5(b).
(i) Definitive Preferred Securities Certificate to Book-Entry
---------------------------------------------------------
Preferred Securities Certificate. If the Holder of a Preferred Securities
--------------------------------
Certificate wishes at any time to transfer all or any portion of such
Preferred Securities Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Book-Entry Preferred
Securities Certificate, such transfer may be effected only in accordance
with the provisions of this clause (b)(i) and subject to the Applicable
Procedures. Upon receipt by the Securities Registrar of (A) such Preferred
Securities Certificate as provided in Section 5.5(a) and instructions
satisfactory to the Securities Registrar directing that a beneficial
interest in the Book-Entry Preferred Securities Certificate of a specified
number of Preferred Securities not greater than the number of Preferred
Securities represented by such Preferred Securities Certificate be credited
to a specified Clearing Agency Participant's account, then the Securities
Registrar shall cancel such Preferred Securities Certificate (and issue a
new Definitive Preferred Securities Certificate in respect of any
untransferred portion thereof) as provided in Section 5.5(a) and increase
the aggregate Liquidation Amount of the Book-Entry Preferred Securities
Certificate by the Liquidation Amount represented by such Preferred
Securities so transferred as provided in Section 5.4(c).
(ii) Definitive Preferred Securities Certificate to Definitive
---------------------------------------------------------
Preferred Securities Certificate. A Definitive Preferred Securities
--------------------------------
Certificate may be transferred, in whole or
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in part, to a Person who takes delivery in the form of another Definitive
Preferred Securities Certificate as provided in Section 5.5(a).
(iii) Exchanges between Book-Entry Preferred Securities Certificate
-------------------------------------------------------------
and Definitive Preferred Securities Certificate. A beneficial interest in a
-----------------------------------------------
Book-Entry Preferred Securities Certificate may be exchanged for a
Definitive Preferred Securities Certificate as provided in Section 5.4.
Section 5.6 Mutilated, Destroyed, Lost or Stolen Securities Certificates.
If (a) any mutilated Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Securities
Certificate, and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that such
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Issuer Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Securities Certificate, a new Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Securities Certificate under this Section 5.6, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Securities Certificate issued pursuant to
this Section 5.6 shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Securities Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Securities Certificate shall be
found at any time.
Section 5.7 Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Securities Certificate shall be registered in the
Securities Register as the owner of such Securities Certificate for the purpose
of receiving Distributions and for all other purposes whatsoever, and none of
the Issuer Trustees and the Securities Registrar shall be bound by any notice to
the contrary.
Section 5.8 Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Delaware Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
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Section 5.9 Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or agency
or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Issuer Trustees in respect of the Securities Certificates may be served. The
Administrative Trustees initially designate The First National Bank of Chicago,
One First National Plaza, Suite 0126, Chicago, Illinois 60670, Attention:
Corporate Trust Administration, as its office and agency for such purposes. The
Property Trustee shall give prompt written notice to the Depositor, the
Administrative Trustees and to the Holders of any change in the location of the
Securities Register or any such office or agency.
Section 5.10 Appointment of Paying Agents.
The Paying Agent or Agents shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent in their sole
discretion. The Paying Agent shall initially be The Bank of New York. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Administrative Trustees and the Property Trustee.
If The Bank of New York shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the Administrative
Trustees shall appoint a successor (which shall be a bank or trust company) that
is reasonably acceptable to the Depositor to act as Paying Agent. Such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustees shall execute and deliver to the Issuer Trustees an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with the
Issuer Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the Holders
in trust for the benefit of the Holders entitled thereto until such sums shall
be paid to such Holders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The provisions
of Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as
Paying Agent, for so long as The Bank of New York shall act as Paying Agent and,
to the extent applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
Section 5.11 Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire, and thereafter shall
retain, beneficial and record ownership of the Common Securities. Neither the
Depositor nor any successor Holder of the Common Securities may transfer less
than all the Common Securities, and the Depositor or any such successor Holder
may transfer the Common Securities only (i) in connection with a
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consolidation or merger of the Depositor into another corporation, or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section 8.1 of the
Indenture, or (ii) to the Depositor or an Affiliate of the Depositor in
compliance with applicable law (including the Securities Act and applicable
state securities and blue sky laws), and in either case only upon an effective
assignment and delegation by the Holder of all the Common Securities to its
transferee of all of its rights and obligations under the Expense Agreement. To
the fullest extent permitted by law, any attempted transfer of the Common
Securities other than as set forth in the next preceding sentence shall be void.
The Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating substantially "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE
DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT
OF THE EXPENSE AGREEMENT REFERRED TO THEREIN."
Section 5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Book-Entry Preferred Securities Certificate, the Issuer
Trustees shall give all such notices and communications specified herein to be
given to the Clearing Agency, and shall have no obligations to the Owners.
Section 5.13 Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Issuer Trust except as described below. The
Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust Securities shall have
no preemptive or similar rights and when issued and delivered to Holders against
payment of the purchase price therefor will be fully paid and nonassessable by
the Issuer Trust. Subject to the provisions of Section 4.8, the Holders of the
Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities
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then Outstanding shall have the right to make such declaration by a notice in
writing to the Property Trustee, the Depositor and the Debenture Trustee.
At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, by written notice to the Property Trustee, the Depositor
and the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest on all of the
Debentures,
(B) any accrued Additional Interest on all of the Debentures,
(C) the principal of (and premium, if any, on) any Debentures
that have become due otherwise than by such declaration of
acceleration and interest and Additional Interest thereon at the rate
borne by the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation, expenses, disbursements
and advances of the Debenture Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other than
the non-payment of the principal of the Debentures that has become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive
any past default or Event of Default under the Indenture, except a default or
Event of Default in the payment of principal or interest (unless such default or
Event of Default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Debenture Trustee) or a default or Event of Default in
respect of a covenant or provision that under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Preferred Securities a record date shall be established for determining Holders
of Outstanding Preferred Securities entitled to join
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in such notice, which record date shall be at the close of business on the day
the Property Trustee receives such notice. The Holders on such record date, or
their duly designated proxies, and only such Persons, shall be entitled to join
in such notice, whether or not such Holders remain Holders after such record
date; provided that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day that is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice that has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of any
amounts payable in respect of Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Preferred Securities of such
Holder (a "Direct Action"). Except as set forth in Section 5.13(b) and this
Section 5.13(c), the Holders of Preferred Securities shall have no right to
exercise directly any right or remedy available to the holders of, or in respect
of, the Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 5.13, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
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ARTICLE VI.
Acts of Holders; Meetings; Voting
Section 6.1 Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on behalf of
the Issuer Trust, the Property Trustee shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Debenture
Trustee, or execute any trust or power conferred on the Property Trustee with
respect to the Debentures, (ii) waive any past default that may be waived under
Section 5.13 of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable,
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities; provided, however, that where a
consent under the Indenture would require the consent of each Holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Preferred
Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities,
except by a subsequent vote of the Holders of the Preferred Securities. The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Issuer Trustees shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action shall not cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Issuer Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Issuer
Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities. Notwithstanding any other
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provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States Federal income tax purposes.
Section 6.2 Notice of Meetings.
Notice of all meetings of the Holders of the Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Preferred Securities, at such
Holder's registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
Section 6.3 Meetings of Holders of the Preferred Securities.
No annual meeting of Holders is required to be held. The Administrative
Trustees, however, shall call a meeting of the Holders of the Preferred
Securities to vote on any matter upon the written request of the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred
Securities and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of the Holders of the Preferred
Securities to vote on any matters as to which such Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Preferred Securities representing at
least a majority of the aggregate Liquidation Amount of the Preferred Securities
held by the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of the Preferred Securities, unless this
Trust Agreement requires a greater number of affirmative votes.
Section 6.4 Voting Rights.
Holders shall be entitled to one vote for each $___ of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
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Section 6.5 Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Administrative Trustees, or with such other officer
or agent of the Issuer Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
of record shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
Section 6.6 Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken without a
meeting if Holders holding at least a Majority in Liquidation Amount of all
Preferred Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other provision of this Trust
Agreement) shall consent to the action in writing. Any action that may be taken
by the Holder of all the Common Securities may be taken if such Holders shall
consent to the action in writing.
Section 6.7 Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Holders or the payment of a
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
Section 6.8 Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as otherwise
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expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.1) conclusive in favor of the Issuer
Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Issuer Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Issuer Trustees,
the Depositor or the Issuer Trust in reliance thereon, whether or not notation
of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders or the Issuer Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Holder or Issuer
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
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Section 6.9 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Issuer Trust shall be open to inspection by Holders
during normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
ARTICLE VII
Representations and Warranties
Section 7.1 Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and delivered
by the Property Trustee and the Delaware Trustee and constitutes the valid and
legally binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement has
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and does not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee, (ii) violate any provision of,
or
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constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States or the
State of Delaware, as the case may be, governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing law of
the United States or the State of Delaware governing the banking, trust or
general powers of the Property Trustee or the Delaware Trustee, as the case may
be; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Issuer Trust or would question the right, power and authority of the Property
Trustee or the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Issuer Trustees under this Trust Agreement.
Section 7.2 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the Holders
that:
(a) the Securities Certificates issued at the Time of Delivery on behalf of
the Issuer Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Issuer Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Holders will be, as of each such date, entitled to the benefits of this
Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under the
laws of the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by either Issuer Trustee of this
Trust Agreement.
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ARTICLE VII
The Issuer Trustees
Section 8.1 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee,
subject to the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Trust Agreement shall require any of the Issuer Trustees to expend or
risk its or their own funds or otherwise incur any financial liability in the
performance of any of its or their duties hereunder, or in the exercise of any
of its or their rights or powers, if it or they shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it or them. Whether or not
therein expressly so provided, every provision of this Trust Agreement relating
to the conduct or affecting the liability of or affording protection to the
Issuer Trustees shall be subject to the provisions of this Section 8.1. Nothing
in this Trust Agreement shall be construed to release an Administrative Trustee
from liability for such Administrative Trustee's own negligent action, such
Administrative Trustee's gross negligent failure to act, or such Administrative
Trustee's own willful misconduct. To the extent that, at law or in equity, an
Issuer Trustee has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee shall not be liable to the Issuer Trust or to any
Holder for such Issuer Trustee's good faith reliance on the provisions of this
Trust Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Issuer Trustees otherwise existing at
law or in equity, are agreed by the Depositor and the Holders to replace such
other duties and liabilities of the Issuer Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Issuer Trustees are not
personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Issuer Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 5.13,
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the Property Trustee shall exercise such of the rights and powers vested in it
by this Trust Agreement), and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee or the Delaware Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Trust Agreement
(including pursuant to Section 10.10), and the Property Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust Agreement
(including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust Agreement;
but in the case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Trust Agreement.
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of at least a Majority in Liquidation Amount
of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Payment
Account shall be to deal with such Property in a similar manner as the
Property Trustee deals with similar property for
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its own account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the Trust
Indenture Act;
(v) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law;
(vi) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of any other Issuer Trustee
or the Depositor; and
(vii) no provision of this Trust Agreement shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Property Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Trust
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) The Administrative Trustees shall not be responsible for monitoring the
compliance by the other Issuer Trustees or the Depositor with their respective
duties under this Trust Agreement, nor shall either Administrative Trustee be
liable for the default or misconduct of any other Administrative Trustee, the
other Issuer Trustees or the Depositor.
(f) If an Event of Default has occurred and is continuing, the Property
Trustee shall enforce this Trust Agreement for the benefit of the Holders.
Section 8.2 Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Holder, the Administrative Trustees, and the Depositor unless
such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Holders and the Administrative Trustees, unless such exercise shall have been
revoked.
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The Property Trustee shall not be deemed to have knowledge of any Event of
Default unless the Property Trustee shall have received written notice or a
Responsible Officer of the Property Trustee charged with the administration of
this Trust Agreement shall have obtained actual knowledge of such Event of
Default.
Section 8.3 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action, (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein, or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Holders of the Preferred Securities are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting the Depositor's opinion as to the course of action to be taken and
the Property Trustee shall take such action, or refrain from taking such action,
as the Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that, if the Property Trustee
does not receive such instructions of the Depositor within ten Business Days
after it has delivered such notice, or such reasonably shorter period of time
set forth in such notice (which to the extent practicable shall not be less than
two Business Days), it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Holders, in which event the Property
Trustee shall have no liability except for its own bad faith, negligence or
wilful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(d) any direction or act of an Administrative Trustee contemplated by this
Trust Agreement shall be sufficiently evidenced by a certificate executed by
such Administrative Trustee and setting forth such direction or act;
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(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction; provided that, nothing
contained in this Section 8.3(g) shall be taken to relieve the Property Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys; provided that the Property Trustee shall be responsible for its own
negligence, bad faith or wilful misconduct with respect to selection of any
agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
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No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Issuer Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to any Issuer Trustee shall be construed to be a duty.
Section 8.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities Certificates shall be
taken as the statements of the Depositor, and the Issuer Trustees do not assume
any responsibility for their correctness. The Issuer Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
Section 8.5 May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the Issuer
Trust, in its individual or any other capacity, may become the owner or pledgee
of Trust Securities and, subject to Sections 8.8 and 8.13, and except as
provided in the definition of the term "Outstanding" in Article I, may otherwise
deal with the Issuer Trust with the same rights it would have if it were not an
Issuer Trustee or such other agent.
Section 8.6 Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to each Issuer Trustee and Paying Agent from time to time such
reasonable compensation for all services rendered by them hereunder as may be
agreed by the Depositor and such Issuer Trustee or Paying Agent, as the case may
be, from time to time (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse each Issuer
Trustee and Paying Agent upon request for all reasonable expenses, disbursements
and advances incurred or made by each Issuer Trustee and Paying Agent in
accordance with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of their agents and counsel),
except any such expense, disbursement or advance as may be attributable to their
negligence, bad faith or wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) each Paying Agent, (iii) any
Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any
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employee or agent of the Issuer Trust (referred to herein as an "Indemnified
Person") from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by such Indemnified Person by
reason of the creation, operation or termination of the Issuer Trust or any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Issuer Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by this Trust Agreement, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of negligence, bad faith or wilful misconduct
with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement and the removal or resignation of any Issuer Trustee.
No Issuer Trustee or Paying Agent may claim any Lien on any Trust Property
as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Issuer Trustee and any Paying Agent may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall
have no rights by virtue of this Trust Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Issuer Trust, shall not be
deemed wrongful or improper. Neither the Depositor, any Paying Agent nor any
Issuer Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a character that,
if presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor, any Issuer Trustee or any Paying Agent shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity. Any Issuer
Trustee or Paying Agent may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer
Trustees.
(a) There shall at all times be a Property Trustee hereunder. The Property
Trustee shall be a Person that is a national or state chartered bank and
eligible pursuant to the Trust Indenture Act to act as such, and that has at the
time of such appointment a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section 8.7 and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to
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the Trust Securities shall cease to be eligible in accordance with the
provisions of this Section 8.7, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article. At the time of
appointment, the Property Trustee must have securities rated in one of the three
highest rating categories by a nationally recognized statistical rating
organization.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware, or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law and that shall act through one or more
persons authorized to bind such entity.
Section 8.8 Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 8.9 Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as co-
trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 8.9. Any co-trustee or separate
trustee appointed pursuant to this Section 8.9 shall either be (i) a natural
person who is at least 21 years of age and a resident of the United States, or
(ii) a legal entity with its principal
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place of business in the United States that shall act through one or more
persons authorized to bind such entity. If an Event of Default under the
Indenture shall have occurred and be continuing, the Property Trustee alone
shall have the power to make such appointment.
Should any written instrument from the Depositor be required by any co-
trustee or separate trustee so appointed for more fully confirming to such co-
trustee or separate trustee such property, title, right, or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The Trust Securities shall be executed by one or more Administrative
Trustees, and the Trust Securities shall be delivered by the Property Trustee in
accordance with Sections 2.4 and 2.5, and all rights, powers, duties, and
obligations hereunder in respect of the custody of securities, cash and other
personal property held by, or required to be deposited or pledged with, the
Property Trustee specified hereunder shall be exercised solely by the Property
Trustee and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such co-
trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section
8.9, and, in case a Debenture Event of Default has occurred and is continuing,
the Property Trustee shall have power to accept the resignation of, or remove,
any such co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigning or
removed may be appointed in the manner provided in this Section 8.9.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
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(e) The Property Trustee shall not be liable by reason of any act of a co-
trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Issuer
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Issuer Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 60 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by Act of the Holder of all the
Common Securities. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a Majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and, in the case of the Property Trustee, on behalf of the
Issuer Trust). An Administrative Trustee may be removed by the Holders of Common
Securities at any time.
If any Issuer Trustee shall resign, be removed or become incapable of
acting as Issuer Trustee, or if a vacancy shall occur in the office of any
Issuer Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Holder of all the Common Securities, by Act
delivered to the retiring Issuer Trustee, shall promptly appoint a successor
Issuer Trustee or Issuer Trustees, and such successor Issuer Trustee shall
comply with the applicable requirements of Section 8.11. If the Property Trustee
or the Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Property Trustee or the Delaware Trustee, as the case
may be, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Holders of Preferred Securities, by Act of the Holders of a
Majority in Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees, and such successor Issuer Trustee shall comply
with the applicable requirements of Section 8.11. If an Administrative Trustee
shall resign, be removed or become incapable of acting as Administrative
Trustee, at a time when a Debenture Event of Default shall have occurred and be
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continuing, the Holder of all the Common Securities by Act delivered to the
Administrative Trustee shall promptly appoint a successor Administrative Trustee
or Administrative Trustees and such successor Administrative Trustee or Trustees
shall comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Holder of all the Common
Securities or the Holders of a Majority in Liquidation Amount of the Preferred
Securities, as the case may be, and accepted appointment in the manner required
by Section 8.11, any Holder who has been a Holder of Trust Securities for at
least six months, on behalf of such Holder and all others similarly situated, or
any other Issuer Trustee, may petition any court of competent jurisdiction for
the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each removal
of an Issuer Trustee and each appointment of a successor Issuer Trustee to all
Holders in the manner provided in Section 10.8 and shall give notice to the
Depositor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrative Trustee or a Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of the remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in either case being a Person who satisfies the eligibility
requirement for Administrative Trustees or Delaware Trustee, as the case may be,
set forth in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Issuer Trustee such
successor Issuer Trustee so appointed shall execute, acknowledge and deliver to
the Issuer Trust and to the retiring Issuer Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Issuer
Trustee shall become effective and such successor Issuer Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Issuer Trustee; but, on the request of
the Depositor or the successor Issuer Trustee, such retiring Issuer Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Issuer Trustee all the rights, powers and trusts
of the retiring Issuer Trustee and if the Property Trustee is the resigning
Issuer Trustee shall duly assign, transfer and deliver to the successor Issuer
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee with respect to
the Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to
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transfer and confirm to, and to vest in, each successor Relevant Trustee all the
rights, powers, trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Issuer Trust, and (b) shall add to or change any
of the provisions of this Trust Agreement as shall be necessary to provide for
or facilitate the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Issuer Trust.
Upon request of any Issuer Trustee or any such successor Relevant Trustee,
the retiring Relevant Trustee or the Issuer Trust, as the case may be, shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person, succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder; provided that such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against Depositor or Issuer
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Preferred
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
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Section 8.14. Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 8.15. Reports by Property Trustee.
(a) Not later than 60 days after May 15 of each year commencing with May
15, _____, the Property Trustee shall transmit to all Holders in accordance with
Section 10.8, and to the Depositor, a brief report, dated as of May 15 of such
year, with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect;
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(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Closing Date)
ending with such December 31 or, if the Property Trustee has not complied
in any material respect with such obligations, a description of such
noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects the
Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders such reports
concerning the Property Trustee and its actions under this Trust Agreement as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each national stock exchange, the
Nasdaq National Market or such other interdealer quotation system or self-
regulatory organization upon which the Trust Securities are listed or traded,
with the Commission and with the Depositor.
Section 8.16. Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees on behalf of the
Issuer Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act. The Depositor and the Administrative Trustees on behalf of the
Issuer Trust shall annually file with the Property Trustee a certificate
specifying whether such Person is in compliance with all of the terms and
covenants applicable to such Person hereunder.
Section 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Issuer Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
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Section 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be four, provided that the Property
Trustee and the Delaware Trustee may be the same Person if the Property Trustee
meets the applicable requirements.
(b) If an Issuer Trustee ceases to hold office for any reason, a vacancy
shall occur. The vacancy shall be filled with an Issuer Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of an Issuer Trustee shall not operate to
annul, dissolve or terminate the Issuer Trust.
Section 8.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 such
Administrative Trustee's power for the purpose of executing any documents
contemplated in Section 2.7(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Issuer Trust or the
names of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement.
Section 8.20. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be _________________, an
individual, and ________________, an individual, and their successors shall be
appointed by the Holder of a Majority in Liquidation Amount of the Common
Securities, and may resign or be removed by the Holders of a Majority in
Liquidation Amount of the Common Securities at any time. Upon any resignation or
removal, the Depositor shall appoint a successor Administrative Trustee. If at
any time there is no Administrative Trustee, the Property Trustee or any Holder
who has been a Holder of Trust Securities for at least six months may petition
any court of competent jurisdiction for the appointment of one or more
Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with this Section 8.20, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Agreement), shall have all the powers granted to the
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Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrative Trustee who is a natural person dies or
becomes, in the opinion of the Holder of a Majority in Liquidation Amount the
Common Securities, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the unanimous act of the
remaining Administrative Trustees, if there were at least two of them prior to
such vacancy, and by the Depositor, if there were not two such Administrative
Trustees immediately prior to such vacancy (with the successor being a Person
who satisfies the eligibility requirement for Administrative Trustees set forth
in Section 8.7).
ARTICLE IX.
Termination, Liquidation and Merger
Section 9.1. Termination Upon Expiration Date.
Unless earlier terminated pursuant to Section 9.2, the Issuer Trust shall
automatically dissolve, and its affairs be wound up, on ___________ ___, _____
(the "Expiration Date"), following the distribution of the Trust Property in
accordance with Section 9.4.
Section 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Holder of all
the Common Securities at any time to terminate the Issuer Trust and to
distribute the Debentures to Holders in exchange for the Preferred Securities
(which direction is optional and wholly within the discretion of the Holder of
all the Common Securities);
(c) the redemption of all of the Preferred Securities in connection with
the payment at Maturity (as defined in the Indenture) or the redemption of all
the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a court of
competent jurisdiction.
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Section 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees and
the Issuer Trust created and continued hereby shall terminate upon the latest to
occur of the following: (a) the distribution by the Property Trustee to Holders
of all amounts required to be distributed hereunder upon the liquidation of the
Issuer Trust pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2; (b) the payment of any expenses owed by the
Issuer Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Issuer Trust or the Holders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Issuer Trustees as expeditiously as the Issuer Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder a
Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage prepaid
mailed not less than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All such notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Securities
Certificates not surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Securities Certificates for Debentures, or if Section
9.4(d) applies receive a Liquidation Distribution, as the Property Trustee
or Administrative Trustees shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Issuer Trust and distribution of the Debentures to Holders,
the Property Trustee, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Securities Certificates, upon surrender of such
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Securities Certificates to the exchange agent for exchange, (iii) the Depositor
shall use its best efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange, interdealer quotation system or self-
regulatory organization on which the Preferred Securities are then listed, (iv)
any Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such Securities
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will be
made to Holders of Securities Certificates with respect to such Debentures) and
(v) all rights of Holders holding Trust Securities will cease, except the right
of such Holders to receive Debentures upon surrender of Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, or if an Early
Termination Event specified in clause (c) of Section 9.2 occurs, the Trust
Property shall be liquidated, and the Issuer Trust shall be dissolved, wound-up
or terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or other
termination of the Issuer Trust, Holders will be entitled to receive out of the
assets of the Issuer Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Issuer Trust as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such dissolution,
winding up or termination, the Liquidation Distribution can be paid only in part
because the Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust Securities shall
be paid on a pro rata basis (based upon Liquidation Amounts). The Holder of all
the Common Securities will be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a Debenture
Event of Default specified in Section 5.1(1) or 5.1(2) of the Indenture has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities as provided in Section 4.3.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Article IX. At the request of the Holders of the Common Securities, with
the consent of the Administrative Trustees, but without the consent of the
Holders of the Outstanding Preferred Securities, the Property Trustee or the
Delaware Trustee, the Issuer Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the
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laws of any State; provided that (i) such successor entity either (A) expressly
assumes all of the obligations of the Issuer Trust with respect to the Preferred
Securities or (B) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities have the same priority as the
Preferred Securities with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) a trustee of such successor entity
possessing the same powers and duties as the Property Trustee is appointed to
hold the Debentures, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization that then assigns a rating
to the Preferred Securities, (iv) the Successor Securities are listed, or any
Successor Securities will be listed upon notice of issuance, on any national
securities exchange or interdealer quotation system on which the Preferred
Securities are then listed, if any, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel to the effect that (A) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, and (B)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Issuer Trust nor such successor entity will be
required to register as an "investment company" under the Investment Company
Act, and (viii) the Depositor or its permitted transferee owns all of the Common
Securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee Agreement. Notwithstanding the foregoing, the Issuer Trust
shall not, except with the consent of holders of all of the Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Issuer Trust or the
successor entity to be taxable as a corporation or classified as other than a
grantor trust for United States Federal income tax purposes.
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ARTICLE X.
Miscellaneous Provisions
Section 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of any person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor entitle the legal representatives
or heirs of such person or any Holder for such person, to claim an accounting,
take any action or bring any proceeding in any court for a partition or winding
up of the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Issuer
Trustees and the Holder of all the Common Securities, without the consent of any
Holder of the Preferred Securities, (i) to cure any ambiguity, correct or
supplement any provision herein that may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Issuer Trust will not be taxable as a corporation
or will be classified as a grantor trust for United States Federal income tax
purposes at all times that any Trust Securities are Outstanding or to ensure
that the Issuer Trust will not be required to register as an "investment
company" under the Investment Company Act; provided, however, that in the case
of either clauses (i) or (ii) such action shall not adversely affect in any
material respect the interests of any Holder.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Issuer Trustees and the Holder of all the
Common Securities and with (i) the consent of Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, and (ii) receipt by the Issuer
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Issuer Trustees in accordance with such
amendment will not cause the Issuer Trust to be taxable as a corporation or
classified as other than a grantor trust for United States Federal income tax
purposes or affect the Issuer Trust's exemption from status as an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change 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
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(ii) restrict the right of a Holder to institute suit for the enforcement of
any such payment on or after such date; and notwithstanding any other provision
herein, without the unanimous consent of the Holders (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of
this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no Issuer
Trustee shall enter into or consent to any amendment to this Trust Agreement
that would cause the Issuer Trust to fail or cease to qualify for the exemption
from status as an "investment company" under the Investment Company Act or to be
taxable as a corporation or to be classified as other than a grantor trust for
United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the relevant Issuer Trustee(s), this
Trust Agreement may not be amended in a manner that imposes any additional
obligation on the Depositor or the relevant Issuer Trustee(s).
(f) If any amendment to this Trust Agreement is made, the Administrative
Trustees or the Property Trustee shall promptly provide to the Depositor a copy
of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement that affects its own rights,
duties or immunities under this Trust Agreement. The Property Trustee shall be
entitled to receive an Opinion of Counsel and an Officers' Certificate stating
that any amendment to this Trust Agreement is in compliance with this Trust
Agreement.
Section 10.3. Separability.
If any provision in this Trust Agreement or in the Securities Certificates
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS,
THE ISSUER TRUST, THE DEPOSITOR AND THE ISSUER TRUSTEES WITH RESPECT TO THIS
TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS
CONFLICTS OF LAWS PROVISIONS. THE PROVISIONS OF SECTION 3540 OF TITLE 12 OF THE
DELAWARE CODE SHALL NOT APPLY TO THIS TRUST.
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Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no Distributions shall
accumulate on such unpaid amount for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Issuer Trust and any Issuer Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Preferred Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of all the
Common Securities or the Depositor, to The Bank of New York Company Inc., One
Wall Street, New York, New York 10286, Attention: Secretary, facsimile no.:
(212) _________, or to such other address as may be specified in a written
notice by the Holder of all the Common Securities or the Depositor, as the case
may be, to the Property Trustee. Such notice, demand or other communication to
or upon a Holder shall be deemed to have been sufficiently given or made, for
all purposes, upon hand delivery, mailing or transmission. Such notice, demand
or other communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Depositor.
Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Issuer Trust or any Issuer Trustee shall be given in writing by deposit thereof,
first-class postage prepaid, in the U.S. mail, hand
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delivery or facsimile transmission, addressed to such Person as follows: (a)
with respect to the Property Trustee to The First National Bank of Chicago, One
First National Plaza, Suite 0126, Chicago, Illinois 60670, Attention: Corporate
Trust Administration; (b) with respect to the Delaware Trustee, to First Chicago
Delaware Inc., 300 King Street, Wilmington, Delaware 19801, Attention:
______________; (c) with respect to the Administrative Trustees, to them at the
address above for notices to the Depositor, marked "Attention: Administrative
Trustees of BNY Capital ___"; and (d) with respect to the Issuer Trust, to its
principal office specified in Section 2.1, with a copy to the Property Trustee.
Such notice, demand or other communication to or upon the Issuer Trust, the
Property Trustee, the Delaware Trustee or the Administrative Trustees shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Issuer Trust, the Property Trustee, the Delaware Trustee or such
Administrative Trustee, as the case may be.
Section 10.9. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of the
Holders that, until at least one year and one day after the Issuer Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. If the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Issuer
Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustee or the Issuer Trust may assert.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Issuer Trustee that is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act through
operation of Section 318(c) thereof, such imposed duties shall control. If any
provision of this Trust Agreement modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Trust Agreement as so modified or excluded, as
the case may be.
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(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee Agreement
and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS
OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT
OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
Section 10.12. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement.
The Bank of New York Company, Inc.,
as Depositor
By:_______________________________________________
Name:
Title:
The First National Bank of Chicago,
as Property Trustee
By:_______________________________________________
Name:
Title:
First Chicago Delaware Inc.,
as Delaware Trustee
By:_______________________________________________
Name:
Title:
-------------------------------
Name: _________________
as Administrative Trustee
--------------------------------
Name: _________________
as Administrative Trustee
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State of New York )
) ss.:
County of New York )
On the __ day of _______, ____, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is _________________ of The Bank of New York Company, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
signed his name thereto by authority of the Board of Directors of said
corporation.
----------------------------------
Notary Public, State of New York
Commission Expires _____ __, _____
State of New York )
) ss.:
County of New York )
On the __ day of _______, ____, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is an Administrative Trustee of BNY Capital __, one of the corporations
described in and which executed the foregoing instrument; that he signed his
name thereto by authority of the Board of Directors of said corporation.
-------------------------------------
Notary Public, State of New York
Commission Expires ________ __, ____
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State of New York )
) ss.:
County of New York )
On the __ day of ________, ____, before me personally came _____________,
to me known, who, being by me duly sworn, did depose and say that he is an
Administrative Trustee of BNY Capital __, one of the corporations described in
and which executed the foregoing instrument; that he signed his name thereto by
authority of the Board of Directors of said corporation.
----------------------------------
Notary Public, State of New York
Commission Expires _____ __, ____
State of New York )
) ss.:
County of New York )
On the ____ day of _______, ____, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he is a _______________ of The First National Bank of Chicago, one of
the corporations described herein and which executed the foregoing instrument;
that he that he signed his name thereto by authority of the Board of Directors
of said corporation.
-------------------------------
Notary Public, State of New York
Commission Expires: __________ __, ____
-65-
<PAGE>
State of New York )
) ss.:
County of New York )
On the ___ day of _______, ____, before me personally came ____________, to
me known, who, being by me duly sworn, did depose and say that he is a
________________ of First Chicago Delaware Inc., one of the corporations
described herein and which executed the foregoing instrument; that he that he
signed his name thereto by authority of the Board of Directors of said
corporation.
_________________________________
Notary Public, State of New York
Commission Expires: __________ __, ___
-66-
<PAGE>
EXHIBIT A
[CERTIFICATE OF TRUST]
OF
BNY CAPITAL __
This Certificate of Trust of BNY Capital __ (the "Trust"), dated
__________, ____, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (S) 3801 et seq.)
1. Name. The name of the business trust being formed hereby is BNY
Capital __.
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as
of _________, ____.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.
By:_______________________________________
Name:
Title:
______________________________________
as Regular Trustee
______________________________________
as Regular Trustee
A-1
<PAGE>
EXHIBIT B
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF
THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT
OF THE EXPENSE AGREEMENT REFERRED TO THEREIN
Certificate Number Number of Common Securities
CI-
Certificate Evidencing Series __ Common Securities
of
BNY Capital __
__% Common Securities, Series __
(Liquidation Amount $__ per Common Security)
BNY Capital __, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that [NAME OF HOLDER]
(the "Holder") is the registered owner of common
securities of the Issuer Trust representing undivided common beneficial
interests in the assets of the Issuer Trust and designated the __% Common
Securities, Series __ (Liquidation Amount $__ per Common Security) (the "Series
__ Common Securities"). Except in accordance with Section 5.11 of the Trust
Agreement (as defined below) the Series __ Common Securities are not
transferable and any attempted transfer hereof other than in accordance
therewith shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Series __ Common Securities
are set forth in, and this certificate and the Series __ Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Issuer Trust,
dated as of _______ __, ____, as the same may be amended from time to time (the
"Trust Agreement"), among The Bank of New York Company, Inc., as Depositor, The
First National Bank of Chicago, as Property Trustee, First Chicago Delaware
Inc., as Delaware Trustee, the Administrative Trustees named therein and the
several Holders, including the designation of the terms of the Series __ Common
Securities as set forth therein. The Issuer Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Issuer
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
B-1
<PAGE>
This Common Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
In Witness Whereof, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this ____ day of _______, ____.
BNY Capital __
By: _________________________________________
Name:
Administrative Trustee
B-2
<PAGE>
EXHIBIT C
[FORM OF EXPENSE AGREEMENT]
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement as to Expenses and Liabilities, dated as of _______ __, ____,
between The Bank of New York Company, Inc., a New York corporation, as Depositor
(the "Depositor"), and BNY Capital __, a Delaware business trust (the "Issuer
Trust").
Whereas, the Issuer Trust intends to issue its __% Common Securities,
Series __ (the "Series __ Common Securities") to and acquire Debentures from the
Depositor, and to issue and sell __% Trust Preferred Securities, Series __ (the
"Series __ Trust Preferred Securities") with such powers, preferences and
special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement, dated as of ________ __, ____, among The Bank of New York
Company, Inc., as Depositor, The First National Bank of Chicago, as Property
Trustee, First Chicago Delaware Inc., as Delaware Trustee, the Administrative
Trustees named therein and the several Holders, as the same may be amended from
time to time (the "Trust Agreement");
Whereas, the Depositor will own all of the Series __ Common Securities of
the Trust;
Whereas, capitalized terms used but not defined herein shall have the
meanings set forth in the Trust Agreement;
Now, Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
Section 1.1. Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities of the
Issuer Trust, other than obligations of the Issuer Trust to pay to holders of
any Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Depositor under this Agreement shall
constitute unsecured obligations of the Depositor and shall rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Depositor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Depositor
hereunder. The obligations of the Depositor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Depositor.
C-1
<PAGE>
Section 1.3. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the dissolution of the Issuer Trust; provided,
however, that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of Series __ Trust
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Series __ Trust Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Depositor and The First
National Bank of Chicago, as guarantee trustee, or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.4. Waiver of Notice. The Depositor hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Depositor hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Depositor under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Issuer Trust in accordance
with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Depositor with respect to the happening of any of the
foregoing.
Section 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Depositor and the Depositor waives any right or remedy to
require that any action be brought against the Issuer Trust or any other person
or entity before proceeding against the Depositor.
Section 1.7. Subrogation. The Depositor shall be subrogated to all rights
(if any) of any Beneficiary against the Issuer Trust in respect of any amounts
paid to the Beneficiaries by the Depositor under this Agreement; provided,
however, that the Depositor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement.
C-2
<PAGE>
ARTICLE II
Section 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void; provided, however, that, upon any transfer
of the Series __ Common Securities, this Agreement shall be assigned and
delegated by the Depositor to its successor with such transfer without any
action by either party hereto.
Section 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Depositor and shall inure to the benefit of the
Beneficiaries.
Section 2.3. Amendment. So long as there remains any Beneficiary or any
Series __ Trust Preferred Securities are outstanding, this Agreement shall not
be modified or amended in any manner adverse to such Beneficiary or to the
holders of the Series __ Trust Preferred Securities without the consent of such
Beneficiary or the holders of the Series __ Trust Preferred Securities, as the
case may be.
Section 2.4. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so given,
shall be deemed given when mailed or upon receipt of an answer-back, if sent by
telex):
BNY Capital __
c/o The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670
Facsimile No.: (___) ___-____
Attention: Corporate Trust Administration
With a copy to:
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Facsimile No.: (212) ___-____
Attention: Secretary
Section 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
C-3
<PAGE>
This Agreement is executed as of the day and year first above written.
The Bank of New York Company, Inc.
By:_________________________________________
Name:
Title:
BNY Capital __
By:_________________________________________
Name:
Administrative Trustee
C-4
<PAGE>
EXHIBIT D
[FORM OF PREFERRED SECURITIES CERTIFICATE]
[If the Preferred Securities Certificate is to be Evidenced By a Book-Entry
Preferred Securities Certificate, insert -- This Preferred Securities
Certificate is a Book-Entry Preferred Securities Certificate within the meaning
of the Trust Agreement hereinafter referred to and is registered in the name of
a Clearing Agency or a nominee of a Clearing Agency. This Preferred Securities
Certificate is exchangeable for Preferred Securities Certificates registered in
the name of a person other than the Clearing Agency or its nominee only in the
limited circumstances described in the Trust Agreement and may not be
transferred except as a whole by the Clearing Agency to a nominee of the
Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency or
another nominee of the Clearing Agency, except in the limited circumstances
described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC"),
to BNY Capital __ or its agent for registration of transfer, exchange or
payment, and any Preferred Security Certificate issued is registered in the name
of Cede & Co. or such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
D-1
<PAGE>
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
CAI-
CUSIP NO. __________________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BNY CAPITAL __
__% TRUST PREFERRED SECURITIES, SERIES __
(LIQUIDATION AMOUNT $__ PER TRUST PREFERRED SECURITY)
BNY Capital __, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that
_____________________________ (the "Holder") is the registered owner of ________
( ) Preferred Securities of the Issuer Trust representing an undivided------
---
preferred beneficial interest in the assets of the Issuer Trust and designated
the BNY Capital __ __% Trust Preferred Securities, Series __ (Liquidation Amount
$__ per Preferred Security) (the "Series __ Trust Preferred Securities"). The
Series __ Trust Preferred Securities are transferable on the books and records
of the Issuer Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer as provided in
Section 5.5 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of _______ __, ____, as the same may be amended from time
to time (the "Trust Agreement"), among The Bank of New York Company Inc., as
Depositor, The First National Bank of Chicago, as Property Trustee, First
Chicago Delaware Inc., as Delaware Trustee, the Administrative Trustees named
therein and the several Holders, including the designation of the terms of the
Preferred Securities as set forth therein. The Holder is entitled to the
benefits of the Guarantee Agreement entered into by The Bank of New York
Company, Inc., a New York corporation, and The First National Bank of Chicago,
as Guarantee Trustee, dated as of _______ __, ____ (the "Guarantee Agreement"),
to the extent provided therein. The Property Trustee will furnish a copy of the
Trust Agreement and the Guarantee Agreement to the Holder without charge upon
written request to the Issuer Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
D-2
<PAGE>
This Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Preferred Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Exhibits thereto.
D-3
<PAGE>
In Witness Whereof, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this ____ day of _______, ____.
BNY Capital __
By: ____________________________________
Name:
Administrative Trustee
D-4
<PAGE>
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Preferred
Security to:
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints________________________________________________________
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: _____________________________________________________________________
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
D-5
<PAGE>
EXHIBIT 4.27
================================================================================
GUARANTEE AGREEMENT
by and between
THE BANK OF NEW YORK COMPANY, INC.,
as Guarantor
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
relating to
BNY CAPITAL __
___________________
Dated as of _______ __, ____
___________________
================================================================================
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
<S> <C>
310(a) ............................................................... 4.1(a)
310(b) ............................................................... 4.1(c), 2.8
310(c) ............................................................... Inapplicable
311(a) ............................................................... 2.2(b)
311(b) ............................................................... 2.2(b)
311(c) ............................................................... Inapplicable
312(a) ............................................................... 2.2(a)
312(b) ............................................................... 2.2(b)
313 ............................................................... 2.3
314(a) ............................................................... 2.4
314(b) ............................................................... Inapplicable
314(c) ............................................................... 2.5
314(d) ............................................................... Inapplicable
314(e) ............................................................... 1.1, 2.5, 3.2
314(f) ............................................................... 2.1, 3.2
315(a) ............................................................... 3.1(d)
315(b) ............................................................... 2.7
315(c) ............................................................... 3.1
315(d) ............................................................... 3.1(d)
316(a) ............................................................... 1.1, 2.6, 5.4
316(b) ............................................................... 5.3
316(c) ............................................................... 8.2
317(a) ............................................................... Inapplicable
317(b) ............................................................... Inapplicable
318(a) ............................................................... 2.1
318(b) ............................................................... 2.1
318(c) ............................................................... 2.1
</TABLE>
____________
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.1. Definitions............................................................. 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application........................................ 5
SECTION 2.2. List of Holders 5
SECTION 2.3. Reports by the Guarantee Trustee........................................ 5
SECTION 2.4. Periodic Reports to the Guarantee Trustee............................... 5
SECTION 2.5. Evidence of Compliance with Conditions Precedent........................ 6
SECTION 2.6. Events of Default; Waiver............................................... 6
SECTION 2.7. Event of Default; Notice................................................ 6
SECTION 2.8. Conflicting Interests................................................... 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.............................. 7
SECTION 3.2. Certain Rights of Guarantee Trustee..................................... 8
SECTION 3.3. Compensation; Indemnity; Fees........................................... 10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility......................................... 10
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.......... 11
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
ARTICLE V
GUARANTEE
<S> <C>
SECTION 5.1. Guarantee.............................................................. 11
SECTION 5.2. Waiver of Notice and Demand............................................ 12
SECTION 5.3. Obligations Not Affected............................................... 12
SECTION 5.4. Rights of Holders...................................................... 13
SECTION 5.5. Guarantee of Payment................................................... 13
SECTION 5.6. Subrogation............................................................ 13
SECTION 5.7. Independent Obligations................................................ 13
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination 14
SECTION 6.2. Pari Passu Guarantees.................................................. 14
ARTICLE VII
TERMINATION
SECTION 7.1. Termination............................................................ 14
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns................................................. 15
SECTION 8.2. Amendments............................................................. 15
SECTION 8.3. Notices................................................................ 15
SECTION 8.4. Benefit................................................................ 16
SECTION 8.5. Governing Law.......................................................... 16
SECTION 8.6. Counterparts........................................................... 16
</TABLE>
<PAGE>
GUARANTEE AGREEMENT, dated as of _______ __, ____, between THE BANK OF NEW
YORK COMPANY, INC., a New York corporation (the "Guarantor"), having its
principal office at One Wall Street, New York, New York 10286, and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Series __ Trust Preferred Securities (as defined herein) of
BNY CAPITAL __, a Delaware statutory business trust (the "Issuer Trust").
Recitals of the Corporation
Whereas, pursuant to an Amended and Restated Trust Agreement, dated as of
_______ __, ____ (the "Trust Agreement"), among The Bank of New York Company,
Inc., as Depositor, the Property Trustee, the Delaware Trustee, the
Administrative Trustees named therein and the several Holders, the Issuer Trust
is issuing $___________ aggregate Liquidation Amount (as defined in the Trust
Agreement) of its __% Trust Preferred Securities, Series _ (Liquidation Amount
$__ per Trust Preferred Security) (the "Series __ Trust Preferred Securities"),
representing preferred undivided beneficial interests in the assets of the
Issuer Trust and having the terms set forth in the Trust Agreement; and
Whereas, the Series __ Trust Preferred Securities will be issued by the
Issuer Trust and the proceeds thereof, together with the proceeds from the
issuance of the Issuer Trust's Common Securities (as defined herein), will be
used to purchase the Debentures (as defined in the Trust Agreement) of the
Guarantor, which Debentures will be deposited with The First National Bank of
Chicago, as Property Trustee under the Trust Agreement, as trust assets; and
Whereas, as an incentive for the Holders to purchase the Series __ Trust
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Holders of the Series __
Trust Preferred Securities the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth herein.
Now, Therefore, in consideration of the purchase of the Series __ Trust
Preferred Securities by each Holder, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, the Guarantor executes and delivers
this Guarantee Agreement for the benefit of the Holders from time to time.
ARTICLE I
Definitions
Section 1.1. Definitions.
For all purposes of this Guarantee Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
<PAGE>
(a) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(e) Unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this
Guarantee Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other words
of similar import refer to this Guarantee Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the board of directors of the Guarantor or the
Executive Committee of the board of directors of the Guarantor (or any other
committee of the board of directors of the Guarantor performing similar
functions) or a committee designated by the board of directors of the Guarantor
(or such committee), comprised of two or more members of the board of directors
of the Guarantor or officers of the Guarantor, or both.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any of its
payment obligations under this Guarantee Agreement or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified, amended
or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Series __ Trust Preferred Securities, to the
extent not paid or made by or on behalf of the Issuer Trust: (i) any accumulated
and unpaid Distributions (as defined in the Trust Agreement) required to be paid
on the Series __ Trust Preferred Securities,
-2-
<PAGE>
to the extent the Issuer Trust shall have funds on hand available therefor at
such time; (ii) the Redemption Price (as defined in the Trust Agreement) with
respect to any Series __ Trust Preferred Securities called for redemption by the
Issuer Trust, to the extent the Issuer Trust shall have funds on hand available
therefor at such time; and (iii) upon a voluntary or involuntary termination,
winding-up or liquidation of the Issuer Trust, unless Debentures are distributed
to the Holders, the lesser of (a) the Liquidation Distribution (as defined in
the Trust Agreement) with respect to the Series __ Trust Preferred Securities,
to the extent that the Issuer Trust shall have funds on hand available therefor
at such time, and (b) the amount of assets of the Issuer Trust remaining
available for distribution to Holders on liquidation of the Issuer.
"Guarantee Trustee" means The First National Bank of Chicago, solely in its
capacity as Guarantee Trustee and not in its individual capacity, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement, and thereafter means each
such Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"Holder" means any Holder (as defined in the Trust Agreement) of any Series
__ Trust Preferred Securities; provided, however, that in determining whether
the holders of the requisite percentage of Series __ Trust Preferred Securities
have given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture, dated as of December
25, 1996, between The Bank of New York Company, Inc. and The First National Bank
of Chicago, as trustee, as the same may be modified, amended or supplemented
from time to time.
"Issuer Trust" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Series __ Trust Preferred
Securities" means, except as provided by the Trust Indenture Act, Series __
Trust Preferred Securities representing more than 50% of the aggregate
Liquidation Amount (as defined in the Trust Agreement) of all Series __ Trust
Preferred Securities then Outstanding (as defined in the Trust Agreement).
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman or a Vice Chairman of the Board of Directors of such
Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Guarantor, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
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(a) a statement by each officer signing the Officers' Certificate that such
officer has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, company,
limited liability company, trust, business trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Guarantee Trustee and also means, with respect to a
particular matter, any other officer to whom such matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Series __ Trust Preferred Securities" has the meaning specified in the
recitals to this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement of the
Issuer Trust referred to in the recitals to this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Guarantee Agreement was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vice President," when used with respect to the Corporation, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
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ARTICLE II
Trust Indenture Act
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Section 310 and 317,
inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control. If any provision of this Guarantee
Agreement modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Guarantee Agreement as so modified or to be excluded, as the case may be.
Section 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, on or before June 30 and December 31 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders (a "List of Holders") as of a date not more than 15
days prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and has not
otherwise been received by the Guarantee Trustee in its capacity as such. The
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements of Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
Not later than 60 days after May 15 of each year, commencing with May 15,
____, the Guarantee Trustee shall provide to the Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, dated as of May 15
of such year and in the form and in the manner provided by Section 313 of the
Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314
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of the Trust Indenture Act, in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given
in the form of an Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of the Series __
Trust Preferred Securities may, by vote, on behalf of the Holders of all the
Series __ Trust Preferred Securities, waive any past default or Event of Default
and its consequences. Upon such waiver, any such default or Event of Default
shall cease to exist, and any default or Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Guarantee
Agreement, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default known to the Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders, notice of any such Event of Default, unless
such Event of Default has been cured before the giving of such notice; provided
that, except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained actual knowledge, of such Event of
Default.
Section 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee hereunder. The right, title and interest of the Guarantee
Trustee, as such, hereunder shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. The Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee Agreement, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement (including pursuant to Section 2.1), and the Guarantee
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture
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Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of
this Guarantee Agreement.
(ii) The Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made.
(iii) The Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation
Amount of the Series __ Trust Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement.
(iv) No provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
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(iv) The Guarantee Trustee may consult with legal counsel, and the
written advice or opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its Affiliates and
may be one of its employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder unless such Holder shall have provided
to the Guarantee Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Guarantee Trustee
against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Guarantee Trustee; provided that nothing contained in this Section
3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, and the Guarantee Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed by it with due care hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
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Section 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as may be agreed by
the Guarantor and the Guarantee Trustee from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Guarantee Trustee in accordance with
any provision of this Guarantee Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(c) to indemnify the Guarantee Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, wilful
misconduct or bad faith on the part of the Guarantee Trustee, arising out
of or in connection with the acceptance or administration of this Guarantee
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. The provisions of this Section 3.3 shall survive the termination of
this Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
Guarantee Trustee
Section 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then, for the purposes of this Section
4.1 and to the extent permitted by the Trust Indenture Act, the combined
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capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
ARTICLE V
Guarantee
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer Trust may have or
assert, except the defense of payment. The Guarantor's obligation
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to make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer Trust to pay
such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer Trust of any express or implied
agreement, covenant, term or condition relating to the Series __ Trust
Preferred Securities to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of all
or any portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Debentures as provided in the Indenture), Redemption
Price, Liquidation Distribution or any other sums payable under the terms
of the Series __ Trust Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of, or in
connection with, the Series __ Trust Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Series __
Trust Preferred Securities, or any action on the part of the Issuer Trust
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer Trust or any of the
assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Series __ Trust
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
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(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor (other than
payment of the underlying obligation), it being the intent of this Section
5.3 that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Series __ 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 this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer Trust or any other Person.
Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Debentures to Holders as
provided in the Trust Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer Trust with respect to the Series __ Trust
Preferred Securities and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments
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pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.3 hereof.
ARTICLE VI
Covenants and Subordination
Section 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Guarantor.
Section 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with the obligations of the Guarantor under (i) any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by any Issuer Trust (as defined in the Indenture),
(ii) the Indenture and the Securities (as defined therein) issued thereunder,
(iii) the Expense Agreement (as defined in the Trust Agreement) and any similar
expense agreements entered into by the Guarantor in connection with the offering
of Capitla Securities (as defined in the Indenture) by any Issuer Trust (as
defined in the Indenture), and (iv) any other security, guarantee or other
agreement or obligation that is expressly stated to rank pari passu with the
obligations of the Guarantor under this Guarantee Agreement or with any
obligation that ranks pari passu with the obligations of the Guarantor under
this Guarantee Agreement.
ARTICLE VII
Termination
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price (as defined in the Trust
Agreement) of all Series __ Trust Preferred Securities, (ii) the distribution of
Debentures to the Holders in exchange for all of the Series __ Trust Preferred
Securities or (iii) full payment of the amounts payable in accordance with
Article IX of the Trust Agreement upon liquidation of the Issuer Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as
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the case may be, if at any time any Holder is required to repay any sums paid
with respect to the Series __ Trust Preferred Securities or this Guarantee
Agreement.
ARTICLE VIII
Miscellaneous
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Series __ Trust
Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article VIII of the Indenture and pursuant to which the successor or assignee
agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder, and any purported
assignment other than in accordance with this provision shall be void.
Section 8.2. Amendments.
Except with respect to any changes that do not adversely affect the rights
of the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Series __ Trust Preferred Securities. The provisions of Article VI of the Trust
Agreement concerning meetings of the Holders shall apply to the giving of such
approval.
Section 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set forth
below or such other address or telecopy number as the Guarantor may give notice
to the Guarantee Trustee and the Holders:
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Attention: Secretary
Telecopy: 212-___-____
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(b) if given to the Guarantee Trustee, at the address or telecopy number
set forth below or such other address or telecopy number as the Guarantee
Trustee may give notice to the Guarantor and Holders:
The First National Bank of Chicago
One First National Bank Plaza, Suite 0126
Chicago, Illinois 60670
Attention: Corporate Trust Administration
Telecopy: ___-___-____
with a copy to:
BNY Capital __
c/o The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Attention: Corporate Secretary
Telecopy: ___-___-____
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Series __ Trust Preferred Securities.
Section 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 8.6. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-16-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the day and year first above written.
The Bank of New York Company, Inc.
By: ____________________________
Name:
Title:
The First National Bank of Chicago,
as Guarantee Trustee
By: _____________________________
Name:
Title:
-17-
<PAGE>
State of New York )
) ss.:
County of New York )
On the __ day of _______, ____ before me personally came _______________,
to me known, who, being by me duly sworn, did depose and say that he is
_______________ of The Bank of New York Company, Inc., one of the corporations
described in and which executed the foregoing instrument; that he/she signed
his/her name thereto by authority of the Board of Directors of said corporation.
________________________________________
Notary Public, State of New York
Commission Expires _____________ __, ____
State of New York )
) ss.:
County of New York )
On the __ day of _______, ____, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he is a ______________ of The First National Bank of Chicago, one of
the corporations described in and which executed the foregoing instrument by
authority of the Board of Directors of said corporation.
- -----------------------------------------
Notary Public, State of New York
Commission Expires ______________ __, ___
-18-
<PAGE>
EXHIBIT 5.2
[SULLIVAN & CROMWELL LETTERHEAD]
February 1, 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
(the "Act") of up to $1,300,000,000 aggregate principal amount of Junior
Subordinated Debt Securities (the "Junior Subordinated Debt Securities") of The
Bank of New York Company, Inc., a New York corporation (the "Company"), up to
$1,300,000,000 aggregate liquidation amount of Trust Preferred Securities (the
"Trust Preferred Securities") of BNY Capital V, BNY Capital VI, BNY Capital VII
and BNY Capital VIII, each of which is a Delaware statutory business trust
(each, a "BNY Trust"), and the Guarantees with respect to the Trust Preferred
Securities (the "Guarantees") to be executed and delivered by the Company for
the benefit of the holders from time to time of the Trust Preferred Securities,
we, as your special counsel, have examined such corporate records, certificates
and other documents, and such questions of law, as we have considered necessary
or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our
opinion, when:
(i) the Registration Statement (Reg. No. 333-70187) relating to the
Junior Subordinated Debt Securities, the Trust Preferred Securities and the
Guarantees (the "Registration Statement") has become effective under the
Act;
(ii) the Guarantee Agreement relating to the Guarantees with respect
to the Trust Preferred Securities of a BNY Trust has been duly executed and
delivered;
<PAGE>
-2-
The Bank of New York Company, Inc.
(iii) the Amended and Restated Trust Agreement of such BNY Trust has
been duly executed and delivered;
(iv) the terms of the Junior Subordinated Debt Securities and of
their issuance and sale have been duly established in conformity with the
Junior Indenture relating to the Junior Subordinated Debt Securities 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;
(v) the terms of the Trust Preferred Securities and of their
issuance and sale have been duly established in conformity with the Trust
Agreement of such BNY Trust so as not to violate any applicable law or
result in a default under, or breach of, any agreement or instrument
binding upon such BNY Trust and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over such BNY Trust;
(vi) the Junior Subordinated Debt Securities have been duly executed
and authenticated in accordance with the Junior Indenture and issued and
sold as contemplated in the Registration Statement; and
(vii) the Trust Preferred Securities have been duly executed and
authenticated in accordance with the Trust Agreement of such BNY Trust and
issued and sold as contemplated in the Registration Statement,
the Junior Subordinated Debt Securities and the Guarantee relating to the Trust
Preferred Securities of such BNY Trust 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.
The foregoing opinion is limited to the Federal laws of the United
States and the laws of the State of New York, and we are expressing no opinion
as to the effect of the laws of any other jurisdiction.
<PAGE>
-3-
The Bank of New York Company, Inc.
Also, we have relied as to certain matters on information obtained
from public officials, officers of the Company and other sources believed by us
to be responsible.
Capitalized terms used and not otherwise defined in this opinion
letter shall have the meanings assigned to them in the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
Securities" in the Prospectus. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
/s/ Sullivan & Cromwell
SULLIVAN & CROMWELL
<PAGE>
EXHIBIT 5.4
February 1, 1999
BNY Capital VI
c/o The Bank of New York Company
One Wall Street
New York, New York 10286
Ladies and Gentlemen:
We have acted as special Delaware counsel for BNY Capital VI, a
Delaware business trust (the "Trust"), in connection with the issuance by the
Trust of the Preferred Securities (defined below).
For purposes of giving this opinion, our examination of documents has
been limited to the examination of originals or copies of the following
(collectively referred to herein as the "Documents"):
(a) The Certificate of Trust (the "Trust Certificate"), dated
December 18 , 1998, as filed in the office of the Delaware Secretary of State on
December 21, 1998;
(b) The Declaration of Trust, dated as of December 21, 1998, among
The Bank of New York Company, Inc. a New York corporation (the "Company"), and
the trustees of the Trust;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to, among
other securities, the Trust Originated Preferred Securities (the "Preferred
Securities") of the Trust, representing preferred undivided beneficial interests
in the assets of the Trust, as filed by the Company, the Trust and others as set
forth therein, with the Securities and Exchange Commission on January 6, 1999;
(d) A form of Amended and Restated Declaration of Trust, to be
entered into among the Company, the trustees of Trust named therein and the
holders, from time to time, of undivided beneficial interests in the Trust (the
"Declaration"); and
<PAGE>
Page 2
February 1, 1999
(e) A Certificate of Good Standing for the Trust, dated the date
hereof, obtained from the Delaware Secretary of State.
Initially capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the Documents. In particular, we have not reviewed any document (other
than the Documents) that is referred to in or incorporated by reference into the
Documents. We have expressly assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own, but
rather have relied solely upon the Documents, the statements and information set
forth therein and the additional matters recited or assumed herein, all of which
we have assumed to be true, complete and accurate in all material respects.
We have assumed (i) the genuineness of the signatures of, the
authority of, and the legal capacity of, each natural person signing the
Declaration on behalf of the respective parties, (ii) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(iii) the genuineness of all signatures and the authenticity and completeness of
all records, certificates, instruments and Documents submitted to us as
originals; and (iv) the conformity to authentic originals of all records,
certificates, instruments and Documents submitted to us as certified, conformed,
photostatic or facsimile copies thereof.
For purposes of this opinion, we have assumed (i) that the Declaration
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Declaration and the Trust Certificate are
in full force and effect and have not been amended, (ii) the due creation or due
formation, as the case may be, and valid existence in good standing of each
party (other than the Trust) to the Documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) that
each of the parties to the Documents examined by us has the power and authority
to execute and deliver, and to perform its obligations thereunder, (iv) the due
authorization, execution and delivery by all parties thereto of all Documents
examined by us, (v) the receipt by each Person to whom a Preferred Security is
to be issued by the Trust (collectively, the "Security Holders") of a
Certificate for such Preferred Security and the full payment for the Preferred
Security acquired by it, in accordance with the Declaration and the Registration
Statement; and (vi) that the Preferred Securities are issued and sold to the
Security Holders in accordance with the Declaration and the Registration
Statement.
Based upon the foregoing and subject to the exceptions, qualifications
and limitations herein set forth, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
(S)(S) 3801 et seq.
------
<PAGE>
Page 3
February 1, 1999
2. The Preferred Securities issued by the Trust will represent valid,
fully paid and non-assessable undivided beneficial interests in the assets of
such Trust.
3. The Security Holders of the Trust, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit under the General Corporation
Law of the State of Delaware.
With respect to the opinions set forth in paragraphs 2 and 3 above, we
note that the Security Holders of the Trust may be obligated to make payments as
set forth in the Declaration.
We express no opinion herein as to the laws of any jurisdiction except
the laws of the State of Delaware (excluding any tax laws, fraudulent conveyance
laws, fraudulent transfer laws and securities laws, and rules, regulations and
orders thereunder, and further excluding judicial decisions to the extent that
they deal with any of the foregoing). This opinion is given as of the date
hereof and is based upon present laws and reported court decisions as they exist
and are construed as of the date hereof.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Matters" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Pepper Hamilton LLP
<PAGE>
EXHIBIT 5.5
February 1, 1999
BNY Capital VII
c/o The Bank of New York Company
One Wall Street
New York, New York 10286
Ladies and Gentlemen:
We have acted as special Delaware counsel for BNY Capital VII, a
Delaware business trust (the "Trust"), in connection with the issuance by the
Trust of the Preferred Securities (defined below).
For purposes of giving this opinion, our examination of documents has
been limited to the examination of originals or copies of the following
(collectively referred to herein as the "Documents"):
(a) The Certificate of Trust (the "Trust Certificate"), dated
December 18 , 1998, as filed in the office of the Delaware Secretary of State on
December 21, 1998;
(b) The Declaration of Trust, dated as of December 21, 1998, among
The Bank of New York Company, Inc. a New York corporation (the "Company"), and
the trustees of the Trust;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to, among
other securities, the Trust Originated Preferred Securities (the "Preferred
Securities") of the Trust, representing preferred undivided beneficial interests
in the assets of the Trust, as filed by the Company, the Trust and others as set
forth therein, with the Securities and Exchange Commission on January 6, 1999;
(d) A form of Amended and Restated Declaration of Trust, to be
entered into among the Company, the trustees of Trust named therein and the
<PAGE>
Page 2
February 1, 1999
holders, from time to time, of undivided beneficial interests in the Trust (the
"Declaration"); and
(e) A Certificate of Good Standing for the Trust, dated the date
hereof, obtained
from the Delaware Secretary of State.
Initially capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the Documents. In particular, we have not reviewed any document (other
than the Documents) that is referred to in or incorporated by reference into the
Documents. We have expressly assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own, but
rather have relied solely upon the Documents, the statements and information set
forth therein and the additional matters recited or assumed herein, all of which
we have assumed to be true, complete and accurate in all material respects.
We have assumed (i) the genuineness of the signatures of, the
authority of, and the legal capacity of, each natural person signing the
Declaration on behalf of the respective parties, (ii) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(iii) the genuineness of all signatures and the authenticity and completeness of
all records, certificates, instruments and Documents submitted to us as
originals; and (iv) the conformity to authentic originals of all records,
certificates, instruments and Documents submitted to us as certified, conformed,
photostatic or facsimile copies thereof.
For purposes of this opinion, we have assumed (i) that the Declaration
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Declaration and the Trust Certificate are
in full force and effect and have not been amended, (ii) the due creation or due
formation, as the case may be, and valid existence in good standing of each
party (other than the Trust) to the Documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) that
each of the parties to the Documents examined by us has the power and authority
to execute and deliver, and to perform its obligations thereunder, (iv) the due
authorization, execution and delivery by all parties thereto of all Documents
examined by us, (v) the receipt by each Person to
<PAGE>
Page 3
February 1, 1999
whom a Preferred Security is to be issued by the Trust (collectively, the
"Security Holders") of a Certificate for such Preferred Security and the full
payment for the Preferred Security acquired by it, in accordance with the
Declaration and the Registration Statement; and (vi) that the Preferred
Securities are issued and sold to the Security Holders in accordance with the
Declaration and the Registration Statement.
Based upon the foregoing and subject to the exceptions, qualifications
and limitations herein set forth, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
(S)(S) 3801 et seq.
------
2. The Preferred Securities issued by the Trust will represent valid,
fully paid and non-assessable undivided beneficial interests in the assets of
such Trust.
3. The Security Holders of the Trust, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit under the General Corporation
Law of the State of Delaware.
With respect to the opinions set forth in paragraphs 2 and 3 above, we
note that the Security Holders of the Trust may be obligated to make payments as
set forth in the Declaration.
We express no opinion herein as to the laws of any jurisdiction except
the laws of the State of Delaware (excluding any tax laws, fraudulent conveyance
laws, fraudulent transfer laws and securities laws, and rules, regulations and
orders thereunder, and further excluding judicial decisions to the extent that
they deal with any of the foregoing). This opinion is given as of the date
hereof and is based upon present laws and reported court decisions as they exist
and are construed as of the date hereof.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Matters" in
the Prospectus. In giving the foregoing consents, we do not thereby
<PAGE>
Page 4
February 1, 1999
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Pepper Hamilton LLP
<PAGE>
EXHIBIT 5.6
February 1, 1999
BNY Capital VIII
c/o The Bank of New York Company
One Wall Street
New York, New York 10286
Ladies and Gentlemen:
We have acted as special Delaware counsel for BNY Capital VIII, a
Delaware business trust (the "Trust"), in connection with the issuance by the
Trust of the Preferred Securities (defined below).
For purposes of giving this opinion, our examination of documents has
been limited to the examination of originals or copies of the following
(collectively referred to herein as the "Documents"):
(a) The Certificate of Trust (the "Trust Certificate"), dated
December 18 , 1998, as filed in the office of the Delaware Secretary of State on
December 21, 1998;
(b) The Declaration of Trust, dated as of December 21, 1998, among
The Bank of New York Company, Inc. a New York corporation (the "Company"), and
the trustees of the Trust;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to, among
other securities, the Trust Originated Preferred Securities (the "Preferred
Securities") of the Trust, representing preferred undivided beneficial interests
in the assets of the Trust, as filed by the Company, the Trust and others as set
forth therein, with the Securities and Exchange Commission on January 6, 1999;
(d) A form of Amended and Restated Declaration of Trust, to be
entered into among the Company, the trustees of Trust named therein and the
<PAGE>
Page 2
February 1, 1999
holders, from time to time, of undivided beneficial interests in the Trust (the
"Declaration"); and
(e) A Certificate of Good Standing for the Trust, dated the date
hereof, obtained from the Delaware Secretary of State.
Initially capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the Documents. In particular, we have not reviewed any document (other
than the Documents) that is referred to in or incorporated by reference into the
Documents. We have expressly assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own, but
rather have relied solely upon the Documents, the statements and information set
forth therein and the additional matters recited or assumed herein, all of which
we have assumed to be true, complete and accurate in all material respects.
We have assumed (i) the genuineness of the signatures of, the
authority of, and the legal capacity of, each natural person signing the
Declaration on behalf of the respective parties, (ii) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(iii) the genuineness of all signatures and the authenticity and completeness of
all records, certificates, instruments and Documents submitted to us as
originals; and (iv) the conformity to authentic originals of all records,
certificates, instruments and Documents submitted to us as certified, conformed,
photostatic or facsimile copies thereof.
For purposes of this opinion, we have assumed (i) that the Declaration
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Declaration and the Trust Certificate are
in full force and effect and have not been amended, (ii) the due creation or due
formation, as the case may be, and valid existence in good standing of each
party (other than the Trust) to the Documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) that
each of the parties to the Documents examined by us has the power and authority
to execute and deliver, and to perform its obligations thereunder, (iv) the due
authorization, execution and delivery by all parties thereto of all Documents
examined by us, (v) the receipt by each Person to
<PAGE>
Page 3
February 1, 1999
whom a Preferred Security is to be issued by the Trust (collectively, the
"Security Holders") of a Certificate for such Preferred Security and the full
payment for the Preferred Security acquired by it, in accordance with the
Declaration and the Registration Statement; and (vi) that the Preferred
Securities are issued and sold to the Security Holders in accordance with the
Declaration and the Registration Statement.
Based upon the foregoing and subject to the exceptions, qualifications
and limitations herein set forth, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
(S)(S) 3801 et seq.
------
2. The Preferred Securities issued by the Trust will represent valid,
fully paid and non-assessable undivided beneficial interests in the assets of
such Trust.
3. The Security Holders of the Trust, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit under the General Corporation
Law of the State of Delaware.
With respect to the opinions set forth in paragraphs 2 and 3 above, we
note that the Security Holders of the Trust may be obligated to make payments as
set forth in the Declaration.
We express no opinion herein as to the laws of any jurisdiction except
the laws of the State of Delaware (excluding any tax laws, fraudulent conveyance
laws, fraudulent transfer laws and securities laws, and rules, regulations and
orders thereunder, and further excluding judicial decisions to the extent that
they deal with any of the foregoing). This opinion is given as of the date
hereof and is based upon present laws and reported court decisions as they exist
and are construed as of the date hereof.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Matters" in
the Prospectus. In giving the foregoing consents, we do not thereby
<PAGE>
Page 4
February 1, 1999
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Pepper Hamilton LLP
<PAGE>
EXHIBIT 12.1
THE BANK OF NEW YORK COMPANY, INC.
Ratios of Earnings to Fixed Charges and
Ratios of Earnings to Combined Fixed Charges,
Distribution on Trust Preferred Securities
and Preferred Stock Dividends
For The Years Ended December 31,
<TABLE>
<CAPTION>
EARNINGS 1998 1997 1996 1995 1994
- -------- ---------- ---------- ---------- ---------- ----------
(Dollars in millions)
<S> <C> <C> <C> <C> <C>
Income Before Income Taxes $ 1,986 $ 1,838 $ 1,656 $ 1,482 $ 1,198
Fixed Charges, Excluding Interest on Deposits 519 446 502 568 436
---------- ---------- ---------- ---------- ----------
Income Before Income Taxes and Fixed Charges,
Excluding Interest on Deposits 2,505 2,284 2,158 2,050 1,634
Interest on Deposits 1,374 1,290 1,152 1,265 842
---------- ---------- ---------- ---------- ----------
Income Before Income Taxes and Fixed Charges,
Including Interest on Deposits $ 3,879 $ 3,574 $ 3,310 $ 3,315 $ 2,476
========== ========== ========== ========== ==========
FIXED CHARGES
- -------------
Interest Expense, Excluding Interest on Deposits $ 485 $ 415 $ 470 $ 537 $ 403
One-Third Net Rental Expense * 34 31 32 31 33
---------- ---------- ---------- ---------- ----------
Total Fixed Charges, Excluding Interest on
Deposits 519 446 502 568 436
Interest on Deposits 1,374 1,290 1,152 1,265 842
---------- ---------- ---------- ---------- ----------
Total Fixed Charges, Including Interest on
Deposits $ 1,893 $ 1,736 $ 1,654 $ 1,833 $ 1,278
========== ========== ========== ========== ==========
DISTRIBUTION ON TRUST PREFERRED SECURITIES,
PRE-TAX BASIS $ 95 $ 65 $ 2 $ - $ -
========== ========== ========== ========== ==========
PREFERRED STOCK DIVIDENDS, PRE-TAX BASIS $ - $ 14 $ 16 $ 16 $ 21
========== ========== ========== ========== ==========
EARNINGS TO FIXED CHARGES RATIOS
- --------------------------------
Excluding Interest on Deposits 4.83 x 5.12 x 4.30 x 3.61 x 3.75 x
Including Interest on Deposits 2.05 2.06 2.00 1.81 1.94
EARNINGS TO COMBINED FIXED CHARGES,
DISTRIBUTION ON TRUST PREFERRED SECURITIES,
& PREFERRED STOCK DIVIDENDS RATIOS
- ----------------------------------
Excluding Interest on Deposits 4.08 4.35 4.15 3.51 3.58
Including Interest on Deposits 1.95 1.97 1.98 1.79 1.91
</TABLE>
* The proportion deemed representative of the interest factor.
<PAGE>
EXHIBIT 25.3
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)_____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
THE BANK OF NEW YORK COMPANY, INC.
(Exact name of obligors as specified in its charter)
New York 13-2614959
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
Junior Subordinated Debt Securities
(Title of 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.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. 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. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, 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 Chicago and State of Illinois, on the 5th day of January, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of (i) an indenture of The Bank of New York
Company, Inc. to The First National Bank of Chicago, as Trustee, relating to the
Junior Subordinated Debt Securities of The Bank of New York Company, Inc., the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: ______________________________________
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
RCFD BIL MIL THOU
---- ------------
<S> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and
coin(1)......................................................... 0081 4,898,646 1.a
b. Interest-bearing balances(2)................................. 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased under
agreements to resell............................................ 1350 6,071,229 3.
4. Loans and lease financing receivables:
RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C)........................................................... 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses.................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve........................ 3128 0 4.c
RCFD
d. Loans and leases, net of unearned income, allowance, and ----
reserve (item 4.a minus 4.b and 4.c)......................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)............................. 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases)........ 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M).................... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................. 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding... 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)......................... 2143 295,823 10.
11. Other assets (from Schedule RC-F).............................. 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)....................... 2170 61,971,271 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>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)................................................... 2200 20,965,124 13.a
(1) Noninterest-bearing(1).................................................... 6631 9,191,662 13.a1
(2) Interest-bearing.......................................................... 6636 11,773,462 13.a2
RCFN
----
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................................ 2200 15,912,956 13.b
(1) Noninterest bearing....................................................... 6631 475,182 13.b1
(2) Interest-bearing.......................................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:................................................................ RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury................................... RCON 2840 359,381 15.a
b. Trading Liabilities (from Sechedule RC-D).................................. RCFD 3548 5,614,049 15.b
16. Other borrowed money:......................................................... RCFD
----
a. With original maturity of one year or less................................. 2332 4,603,402 16.a
b. With original maturity of more than one year.............................. A547 328,001 16.b
c. With original maturity of more than three years............................ A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding....................... 2920 352,324 18.
19. Subordinated notes and debentures............................................. 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)........................................ 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)................................ 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................. 3838 0 23.
24. Common stock.................................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)...................... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves..................................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................................... 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments........................... 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)............................. 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................................... 3300 61,971,271 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C>
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 Number
auditors as of any date during 1996.....................................RCFD 6724.... N/a M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately)
7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by a
certified public accounting firm (may be required by state
chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 25.4
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) ___
--------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------------
BNY CAPITAL V
(Exact name of obligors as specified in their trust agreements)
New York 13-7103738
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of 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.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. 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. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, The First National Bank of Chicago, 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 Chicago and State of
Illinois, on the 5th day of January, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of BNY Capital V, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: ______________________________________
Steven M. Wagner
First Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
RCFD BIL MIL THOU -----------
---- ------------
<S> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
-----
a. Noninterest-bearing balances and currency and coin(1).............. 0081 4,898,646 1.a
b. Interest-bearing balances(2)....................................... 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to
resell................................................................ 1350 6,071,229 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule............ RCFD
----
RC-C).............................................................. 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses.......................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve.............................. 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and........... RCFD
----
reserve (item 4.a minus 4.b and 4.c)............................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 295,823 10.
11. Other assets (from Schedule RC-F)..................................... 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11).............................. 2170 61,971,271 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>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-Continued Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1).................................... 2200 20,965,124 13.a
(1) Noninterest-bearing(1)..................................... 6631 9,191,662 13.a1
(2) Interest-bearing........................................... 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)............................... 2200 15,912,956 13.b
(1) Noninterest bearing.......................................... 6631 475,182 13.b1
(2) Interest-bearing............................................. 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)...................... RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.................... 2332 4,603,402 16.a
b. With original maturity of more than one year................. A547 328,001 16.b
c. With original maturity of more than three years.............. A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.......... 2920 352,324 18.
19. Subordinated notes and debentures................................ 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)........................... 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)................... 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... 3838 0 23.
24. Common stock..................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves........................ 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments.............. 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)................ 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ 3300 61,971,271 29.
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
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 ---------------- Number
comprehensive level of auditing work performed for the bank by independent external N/A M.1.
auditors as of any date during 1996............................................RCFD 6724........... -----------------
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 25.5
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)
_____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312)732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
BNY CAPITAL VI
(Exact name of obligors as specified in their trust agreements)
New York 13-7177235
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of 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.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. 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. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, 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 Chicago and State of Illinois, on the 5th day of January, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of BNY Capital VI, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: ______________________________________
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
----------------------------------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and
coin(1)......................................... 0081 4,898,646 1.a
b. Interest-bearing balances(2).................. 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased
under agreements to resell 1350 6,071,229 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income ----
(from Schedule RC-C)............................ 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses.... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve........ 3128 0 4.c
d. Loans and leases, net of unearned income, RCFD
allowance, and reserve (item 4.a minus ----
4.b and 4.c).................................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)............. 3545 6,924,064 5.
6. Premises and fixed assets (including
capitalized leases)............................. 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M).... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries
and associated companies (from Schedule RC-M)... 2130 153,385 8.
9. Customers' liability to this bank on
acceptances outstanding......................... 2155 352,324 9.
10. Intangible assets (from Schedule RC-M).......... 2143 295,823 10.
11. Other assets (from Schedule RC-F)............... 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)........ 2170 61,971,271 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>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
----------------------------------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)................................... 2200 20,965,124 13.a
(1) Noninterest-bearing(1).................................... 6631 9,191,662 13.a1
(2) Interest-bearing.......................................... 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)............................ 2200 15,912,956 13.b
(1) Noninterest bearing....................................... 6631 475,182 13.b1
(2) Interest-bearing.......................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury................... RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)................... RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less................. 2332 4,603,402 16.a
b. With original maturity of more than one year.............. A547 328,001 16.b
c. With original maturity of more than three years........... A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding....... 2920 352,324 18.
19. Subordinated notes and debentures............................. 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)........................ 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)................ 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................. 3838 0 23.
24. Common stock.................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)...... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves..................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................. 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments........... 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)............. 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................... 3300 61,971,271 29.
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C>
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 --------------------- Number
auditors as of any date during 1996........................................RCFD 6724......... N/A M.1.
---------------------
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
1 = Independent audit of the bank conducted in 4. = Directors' examination of the bank performed
accordance with generally accepted auditing by other external auditors (may be required
standards by a certified public accounting BY state chartering authority)
firm which submits a report on the bank 5 = Review of the bank's financial statements
2 = Independent audit of the bank's parent by external auditors
holding company conducted in accordance 6 = Compilation of the bank's financial
With generally accepted auditing standards statements by external auditors
by a certified public accounting firm which 7 = Other audit procedures (excluding tax
submits a report on the consolidated holding preparation work)
company (but not on the bank separately) 8 = No external audit work
3 = Directors' examination of the bank
conducted in accordance with generally
acccepted auditing standards by a certified
public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 25.6
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) ___
----------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312)732-6919
(Name, address and telephone number of agent for service)
----------
BNY CAPITAL VII
(Exact name of obligors as specified in their trust agreements)
New York 13-7177236
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of 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.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. 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. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, 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 Chicago and State of Illinois, on the 5th day of January, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of BNY Capital VII, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: ______________________________________
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)............ 0081 4,898,646 1.a
b. Interest-bearing balances(2)..................................... 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to
resell............................................................. 1350 6,071,229 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C)............................................................. 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses......................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve............................. 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c)............................. 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)................................ 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases)........... 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M)....................... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................................... 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding....... 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)............................. 2143 295,823 10.
11. Other assets (from Schedule RC-F).................................. 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)........................... 2170 61,971,271 12.
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)..................................... 2200 20,965,124 13.a
(1) Noninterest-bearing(1)...................................... 6631 9,191,662 13.a1
(2) Interest-bearing............................................ 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II).............................. 2200 15,912,956 13.b
(1) Noninterest bearing......................................... 6631 475,182 13.b1
(2) Interest-bearing............................................ 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury................... RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)................... RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less...................... 2332 4,603,402 16.a
b. With original maturity of more than one year................... A547 328,001 16.b
c. With original maturity of more than three years ............... A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........... 2920 352,324 18.
19. Subordinated notes and debentures................................. 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)............................ 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20).................... 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... 3838 0 23.
24. Common stock..................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves........................ 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments.............. 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)................ 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................... 3300 61,971,271 29.
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 Number
Number auditors as of any date during 1996........................ RCFD 6724..............N/A M.1.
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 25.7
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)
--------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------------
BNY CAPITAL VIII
(Exact name of obligors as specified in their trust agreements)
New York 13-7177237
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of 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.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
-----------------------------
is an affiliate of the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
----------------
Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
<PAGE>
7. 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. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, The First National Bank of Chicago, 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
Chicago and State of Illinois, on the 5th day of January, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of BNY Capital VIII, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: ______________________________________
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RCFD
RC-A): ----
a. Noninterest-bearing balances and currency and coin(1)......................... 0081 4,898,646 1.a
b. Interest-bearing balances(2).................................................. 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to
resell........................................................................... 1350 6,071,229 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C)............................................................................ 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses..................................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve......................................... 3128 0 4.c
RCFD
d. Loans and leases, net of unearned income, allowance, and...................... ----
reserve (item 4.a minus 4.b and 4.c).......................................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D).............................................. 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 731,747
7. Other real estate owned (from Schedule RC-M)..................................... 2150 6,424
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................................................... 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 352,324
10. Intangible assets (from Schedule RC-M)........................................... 2143 295,823 10.
11. Other assets (from Schedule RC-F)................................................ 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 61,971,271 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>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1).................................................... 2200 20,965,124 13.a
(1) Noninterest-bearing(1)..................................................... 6631 9,191,662 13.a1
(2) Interest-bearing........................................................... 6636 11,773,462 13.a2
RCFN
b. In foreign offices, Edge and Agreement subsidiaries, and ----
IBFs (from Schedule RC-E, part II)............................................. 2200 15,912,956 13.b
(1) Noninterest bearing........................................................ 6631 475,182 13.b1
(2) Interest-bearing........................................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:.................................................................... RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury....................................... RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)....................................... RCFD 3548 5,614,049 15.b
RCFD
16. Other borrowed money: ----
a. With original maturity of one year or less..................................... 2332 4,603,402 16.a
b. With original maturity of more than one year.................................. A547 328,001 16.b
c. With original maturity of more than three years................................ A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........................... 2920 352,324 18.
19. Subordinated notes and debentures................................................. 3200 2,400,000
20. Other liabilities (from Schedule RC-G)............................................ 2930 1,833,935
21. Total liabilities (sum of items 13 through 20).................................... 2948 56,940,081
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................................... 3838 0 23.
24. Common stock...................................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).......................... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves......................................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................................... 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments............................... 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)................................. 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................................. 3300 61,971,271 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C>
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 Number
auditors as of any date during 1996.....................................RCFD 6724.... N/a M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately)
7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by a
certified public accounting firm (may be required by state
chartering authority)
</TABLE>
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 25.8
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)__
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
THE BANK OF NEW YORK COMPANY, INC.
(Exact name of obligors as specified in its charter)
New York 13-2614959
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
Guarantee of Trust Preferred Securities of BNY Capital V
(Title of 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.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. 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. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, 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 Chicago and State of Illinois, on the 5th day of January, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of BNY Capital V, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: ______________________________________
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
RCFD BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and
coin(1)............................................. 0081 4,898,646 1.a
b. Interest-bearing balances(2)........................ 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased under
agreements to resell..................................... 1350 6,071,229 3.
4. Loans and lease financing receivables: RCFD
----
a. Loans and leases, net of unearned income
(from Schedule RC-C)..................................... 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses........... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve............... 3128 0 4.c
d. Loans and leases, net of unearned income, RCFD
----
allowance, and reserve (item 4.a minus 4.b and 4.c). 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)...................... 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases) 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M)............. 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M)................ 2130 153,385 8.
9. Customers' liability to this bank on acceptances
outstanding.............................................. 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)................... 2143 295,823 10.
11. Other assets (from Schedule RC-F)........................ 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)................. 2170 61,971,271 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1).............................. 2200 20,965,124 13.a
(1) Noninterest-bearing(1)............................... 6631 9,191,662 13.a1
(2) Interest-bearing..................................... 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)....................... 2200 15,912,956 13.b
(1) Noninterest bearing................................. 6631 475,182 13.b1
(2) Interest-bearing.................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 359,381 15.a
b. Trading Liabilities (from Sechedule RC-D)................ RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less............... 2332 4,603,402 16.a
b. With original maturity of more than one year............ A547 328,001 16.b
c. With original maturity of more than three years.......... A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding....... 2920 352,324 18.
19. Subordinated notes and debentures............................. 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)........................ 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)................ 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................. 3838 0 23.
24. Common stock.................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)...... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-
for-sale securities...................................... 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments........... 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)............. 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................... 3300 61,971,271 29.
</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 -------- Number
auditors as of any date during 1996.......RCFD 6724... N/A M.1.
--------
1 = Independent audit of the bank 4. = Directors' examination of the bank
conducted in accordance with performed by other external auditors
generally accepted auditing (may be required by state chartering
standards by a certified public authority)
accounting firm which submits a 5 = Review of the bank's financial
report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's financial
parent holding company conducted statements by external auditors
in accordance with generally 7 = Other audit procedures (excluding
accepted auditing standards by a tax preparation work)
certified public accounting firm 8 = No external audit work
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)
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 25.9
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)__
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
THE BANK OF NEW YORK COMPANY, INC.
(Exact name of obligors as specified in its charter)
New York 13-2614959
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
Guarantee of Trust Preferred Securities of BNY Capital VI
(Title of 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.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. 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. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, 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 Chicago and State of Illinois, on the 5th day of January, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of BNY Capital VI, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: ______________________________________
Steven M. Wagner
First Vice President
4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 7
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
<TABLE>
<CAPTION>
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
RCFD BIL MIL THOU ---
---- -------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)................. 0081 4,898,646 1.a
b. Interest-bearing balances(2).......................................... 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to
resell................................................................... 1350 6,071,229 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C).................................................................... 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses............................. 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve.................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c)..................................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)...................................... 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases)................. 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M)............................. 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................... 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding............. 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)................................... 2143 295,823 10.
11. Other assets (from Schedule RC-F)........................................ 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)................................. 2170 61,971,271 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>
<CAPTION>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1).................................... 2200 20,965,124 13.a
(1) Noninterest-bearing(1)..................................... 6631 9,191,662 13.a1
(2) Interest-bearing........................................... 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)............................. 2200 15,912,956 13.b
(1) Noninterest bearing........................................ 6631 475,182 13.b1
(2) Interest-bearing........................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)...................... RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.................... 2332 4,603,402 16.a
b. With original maturity of more than one year................. A547 328,001 16.b
c. With original maturity of more than three years ............. A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding......... 2920 352,324 18.
19. Subordinated notes and debentures............................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G).......................... 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20).................. 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................... 3838 0 23.
24. Common stock.................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)........ 3839 3,192,857 25.
26. a. Undivided profits and capital reserves....................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................... 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments............. 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)............... 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)........................... 3300 61,971,271 29.
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
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 --------------------- Number
auditors as of any date during 1996.........................................RCFD 6724........ N/A M.1.
----------------------
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in 4. = Directors' examination of the bank
accordance with generally accepted auditing performed by other external auditors (may
standards by a certified public accounting be required by state chartering authority)
firm which submits a report on the bank 5 = Review of the bank's financial statements
2 = Independent audit of the bank's parent by external auditors
holding company conducted in accordance with 6 = Compilation of the bank's financial
generally accepted auditing standards by a certified statements by external auditors
public accounting firm which submits a report 7 = Other audit procedures (excluding tax
on the consolidated holding company preparation work)
(but not on the bank separately) 8 = No external audit work
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)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 25.10
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)_____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
THE BANK OF NEW YORK COMPANY, INC.
(Exact name of obligors as specified in its charter)
New York 13-2614959
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
Guarantee of Trust Preferred Securities of BNY Capital VII
(Title of 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.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. 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. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, 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 Chicago and State of Illinois, on the 5th day of January, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of BNY Capital VII, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: ______________________________________
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and
coin(1)........................................................ 0081 4,898,646 1.a
b. Interest-bearing balances(2)................................... 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to
resell............................................................ 1350 6,071,229 3.
4. Loans and lease financing receivables:
RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C).......................................................... 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses...................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve.......................... 3128 0 4.c
RCFD
----
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)............................... 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 295,823 10.
11. Other assets (from Schedule RC-F)................................. 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11).......................... 2170 61,971,271 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>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)........................................ 2200 20,965,124 13.a
(1) Noninterest-bearing(1)......................................... 6631 9,191,662 13.a1
(2) Interest-bearing............................................... 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)................................. 2200 15,912,956 13.b
(1) Noninterest bearing............................................ 6631 475,182 13.b1
(2) Interest-bearing............................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:........................................................ RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury........................... RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)........................... RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less......................... 2332 4,603,402 16.a
b. With original maturity of more than one year...................... A547 328,001 16.b
c. With original maturity of more than three years................... A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding............... 2920 352,324 18.
19. Subordinated notes and debentures..................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)................................ 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)........................ 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus......................... 3838 0 23.
24. Common stock.......................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).............. 3839 3,192,857 25.
26. a. Undivided profits and capital reserves............................. 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities......................................................... 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments................... 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)..................... 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)................................. 3300 61,971,271 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C>
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 Number
by independent external auditors as of any date during 1996 .................RCFD 6724..... N/A M.1.
1 = Independent audit of the bank conducted in 4. = Directors' examination of the bank
accordance with generally accepted auditing performed by other external auditors (may be
standards by a certified public accounting firm required by state chartering authority)
which submits a report on the bank
2 = Independent audit of the bank's parent 5 = Review of the bank's financial statements
holding company conducted in accordance with by external auditors
generally accepted auditing standards by a certified
public accounting firm which submits a report on the 6 = Compilation of the bank's financial statements
consolidated holding company (but not on the by external auditors
bank separately) 7 = Other audit procedures (excluding tax preparation
work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 25.11
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)_____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
THE BANK OF NEW YORK COMPANY, INC.
(Exact name of obligors as specified in its charter)
New York 13-2614959
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
Guarantee of Trust Preferred Securities of BNY Capital VIII
(Title of 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.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. 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. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, 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 Chicago and State of Illinois, on the 5th day of January, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of BNY Capital VIII, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: ______________________________________
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository
institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and
coin(1)....................................................... 0081 4,898,646 1.a
b. Interest-bearing balances(2)................................. 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased under
agreements to resell............................................ 1350 6,071,229 3.
4. Loans and lease financing receivables:
RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C)........................................................ 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses.................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve........................ 3128 0 4.c
RCFD
d. Loans and leases, net of unearned income, allowance, and ----
reserve (item 4.a minus 4.b and 4.c)......................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)............................. 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases)........ 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M).................... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................. 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding.... 2155 352,324 9.
10. Intangible assets (from Schedule RC-M).......................... 2143 295,823 10.
11. Other assets (from Schedule RC-F)............................... 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)........................ 2170 61,971,271 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>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)............................................... 2200 20,965,124 13.a
(1) Noninterest-bearing(1)................................................ 6631 9,191,662 13.a1
(2) Interest-bearing...................................................... 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and.................. RCFN
----
IBFs (from Schedule RC-E, part II)........................................... 2200 15,912,956 13.b
(1) Noninterest bearing...................................................... 6631 475,182 13.b1
(2) Interest-bearing......................................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:............................................................... RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury.................................. RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule
RC-D)..................................................................... RCFD 3548 5,614,049 15.b
RCFD
16. Other borrowed money: ----
a. With original maturity of one year or less................................ 2332 4,603,402 16.a
b. With original maturity of more than one year............................. A547 328,001 16.b
c. With original maturity of more than three years........................... A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding...................... 2920 352,324 18.
19. Subordinated notes and debentures............................................ 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)....................................... 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)............................... 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................ 3838 0 23.
24. Common stock................................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)..................... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves.................................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................................ 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments.......................... 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)............................ 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)........................................ 3300 61,971,271 29.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
<S> <C>
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 Number
auditors as of any date during 1996.....................................RCFD 6724.... N/a M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately)
7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by a
certified public accounting firm (may be required by state
chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
