BNY Capital IV
The Bank of New York Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
PRICING AGREEMENT
-----------------
To the Underwriters named in
Schedule I hereto
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
January 14, 1999
Ladies and Gentlemen:
BNY Capital IV, 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"), as such terms and conditions are
modified as provided in Schedule II hereto, 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. Each of the
provisions of the Standard Provisions, except to the extent so modified, 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, as so modified, 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 Firm Designated Securities are herein referred to as the
"Designated Securities." The Representatives designated to act on behalf of
themselves and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Standard Provisions and the addresses
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
A supplement to the Prospectus relating to the Designated Securities in
the form heretofore delivered to you is now proposed to be filed with the
Commission (as so supplemented, the "Prospectus").
Subject to the terms and conditions set forth herein and in the Standard
Provisions incorporated herein by reference as set forth above, the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto. The Company agrees
to pay the underwriting commission set forth in Schedule II hereto to you, for
the accounts of the several Underwriters, at the time and place set forth in
such Schedule II. As permitted by Rule 15c6-1 under the Exchange Act, the
Company, the Designated Trust and the Underwriters hereby agree that the date
for the payment of funds and delivery of securities pursuant to the offering
contemplated by this Pricing Agreement shall be as set forth in such Schedule
II.
2
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 as set forth above, 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: /s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Title: Senior Executive Vice President &
Chief Financial Officer
BNY CAPITAL IV
By: THE BANK OF NEW YORK COMPANY, INC.,
as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Title: Senior Executive Vice President &
Chief Financial Officer
Accepted as of the date hereof:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
3
As Representatives of the Underwriters named
in Schedule I hereto on behalf of each of the
Underwriters named in Schedule I hereto
4
SCHEDULE I
Number of
Designated
Securities to
Underwriter be Purchased
----------- -------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 992,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ and ▇▇▇▇▇
Incorporated 992,000
PaineWebber Incorporated 992,000
Prudential Securities Incorporated 992,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. 992,000
ABN AMRO Incorporated 140,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 140,000
BNY Capital Markets, Inc. 140,000
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. 140,000
Credit Suisse First Boston Corporation 140,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation 140,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 140,000
EVEREN Securities, Inc. 140,000
Fidelity Capital Markets, A Division of National Financial Services
Corporation 140,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 140,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 140,000
▇▇▇▇▇▇ Brothers Inc. 140,000
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC 140,000
▇▇▇▇▇▇▇▇ & Co. Inc. 140,000
▇▇ ▇▇▇▇▇ Securities Corporation 140,000
Warburg Dillon Read LLC 140,000
Wheat First Securities, Inc. 140,000
Advest, Inc. 20,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated 20,000
▇▇▇▇▇▇ ▇. ▇▇▇▇ & Company 20,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co. 20,000
Craigie Incorporated 20,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co. 20,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 20,000
▇▇▇▇▇▇▇▇▇ & Company LLC 20,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated 20,000
▇▇▇▇▇▇▇▇▇▇ & Co. Inc. 20,000
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated 20,000
Fifth Third/The Ohio Company 20,000
Number of
Designated
Securities to
Underwriter be Purchased
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First Albany Corporation 20,000
Gibraltar Securities Co. 20,000
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. 20,000
Interstate/▇▇▇▇▇▇▇ Lane Corporation 20,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. 20,000
▇▇▇▇▇▇▇▇▇▇▇, Pettis, Smith, Polian Inc. 20,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 20,000
McDonald Investments Inc., a Keycorp Company 20,000
Mesirow Financial, Inc. 20,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 20,000
Olde Discount Corporation 20,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. 20,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 20,000
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC 20,000
▇▇▇▇▇ Capital Markets, a Division of First Chicago 20,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc. 20,000
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc. 20,000
Southwest Securities, Inc. 20,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated 20,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated 20,000
Wedbush ▇▇▇▇▇▇ Securities 20,000
---------
Total 8,000,000
=========
2
SCHEDULE II
DESIGNATED TRUST:
BNY Capital IV
TITLE OF DESIGNATED SECURITIES:
6?% Trust Preferred Securities, Series E (Liquidation Amount $25 per Trust
Preferred Security)
AGGREGATE LIQUIDATION AMOUNT OF DESIGNATED SECURITIES:
$200,000,000 (8,000,000 Designated Securities)
INITIAL PUBLIC OFFERING PRICE:
100% of the liquidation amount of the Designated Securities
PURCHASE PRICE TO UNDERWRITERS:
100% of the liquidation amount of the Designated Securities
UNDERWRITING COMMISSION:
$0.7875 per Designated Security ($6,300,000 in the aggregate)
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC"), New York, New York, or its
designated custodian, registered in the name of Cede & Co., as the nominee
of DTC, to be made available for checking by the Representatives at least
24 hours prior to the Time of Delivery with respect to the Designated
Securities at the offices of DTC or such designated custodian
ACCOUNT FOR PAYMENT OF PURCHASE PRICE TO UNDERWRITERS:
BNY Capital IV
Acct. No. 6301897837 at
The Bank of New York
ABA No. ▇▇▇▇▇▇▇▇▇
TRUST AGREEMENT:
Amended and Restated Trust Agreement, dated as of January 25, 1999, among
the Company, as depositor, the Trustees named therein and the
Securityholders
GUARANTEE:
Guarantee Agreement, dated as of January 25, 1999, between the Company, as
guarantor, and the Guarantee Trustee named therein
SUBORDINATED DEBENTURES:
6?% Junior Subordinated Deferrable Interest Debentures, Series E
MATURITY OF SUBORDINATED DEBENTURES:
December 1, 2028 (subject to shortening or extension by the Company as set
forth in the Prospectus)
ANNUAL DIVIDEND RATE FOR DESIGNATED SECURITIES AND ANNUAL INTEREST RATE FOR
SUBORDINATED DEBENTURES:
6?%
DISTRIBUTION DATES FOR DESIGNATED SECURITIES AND INTEREST PAYMENT DATES FOR
SUBORDINATED DEBENTURES:
March 1, June 1, September 1 and December 1 of each year, commencing on
March 1, 1999
EXTENSION PERIOD WITH RESPECT TO THE SUBORDINATED DEBENTURES:
20 consecutive quarters (provided that any such extension period shall not
extend beyond the maturity of the Subordinated Debentures)
REDEMPTION PROVISIONS:
The Designated Securities are subject to mandatory redemption in whole upon
repayment of the Subordinated Debentures at their maturity or in whole or
in part upon the redemption of the Subordinated Debentures as described
below at a redemption price equal to 100% of the liquidation amount of the
Designated Securities plus accumulated and unpaid distributions thereon to
the date fixed for redemption
The Subordinated Debentures are not redeemable prior to January 25, 2004
except, at the option of the Company, upon the occurrence of a Tax Event or
a Capital Treatment Event (each as defined in the Prospectus)
Special Event Redemption: Within 90 days of the occurrence of a Tax Event
or a Capital Treatment Event, the Subordinated Debentures are redeemable
prior to maturity (in whole but not in part) at a redemption price equal to
100% of the principal amount of the Subordinated Debentures plus accrued
and unpaid interest thereon to the date fixed for redemption
Optional Redemption: On or after January 25, 2004, the Subordinated
Debentures are redeemable prior to maturity (in whole or in part) at a
redemption price equal to 100% of the principal amount of the Subordinated
Debentures plus accrued and unpaid interest thereon to the date fixed for
redemption
2
SINKING FUND PROVISIONS:
None
LISTING:
The Company and the Designated Trust have applied to list the Designated
Securities on the New York Stock Exchange, and, if the Company elects to
terminate the Designated Trust and to distribute the Subordinated
Debentures to the holders of the Designated Securities in liquidation of
the Designated Trust, the Company and the Designated Trust shall each use
its best efforts to list the Subordinated Debentures on the New York Stock
Exchange, prior to such distribution
TIME OF DELIVERY:
9:00 a.m., New York City time, January 25, 1999
CLOSING LOCATION:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
NAMES AND ADDRESSES OF REPRESENTATIVES:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
MODIFICATIONS TO THE STANDARD PROVISIONS:
It is understood that notwithstanding anything in the third clause of
Section 2(a) of the Standard Provisions to the contrary, a registration
statement on Form S-3 (File Nos. 333-70187 and 333- 70187-01 through
333-70187-05), has been filed with the Commission, which carries forward
certain securities registered pursuant to the Initial Registration
Statement.
Notwithstanding Section 7(b) of the Standard Provisions, Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, shall furnish the opinion
or opinions described therein.
▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ Securities
guaranteed to the extent set forth in Guarantees by
THE BANK OF NEW YORK COMPANY, INC.
Underwriting Agreement Standard Provisions
(December 1997)
From time to time, BNY Capital III, BNY Capital IV or BNY Capital V,
each a statutory business trust formed under the laws of the State of Delaware
(each a Trust and collectively, the "Trusts"), and The Bank of New York Company,
Inc., a New York corporation (the "Company"), as depositor of each Trust and as
Guarantor, may enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, which shall provide that the Trust identified in the
applicable Pricing Agreement (such Trust being the "Designated Trust" with
respect to such Pricing Agreement) shall issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such Firms constituting the
Underwriters, with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred securities (the "Securities")
identified in Schedule I to the applicable Pricing Agreement (with respect to
such Pricing Agreement, the "Firm Designated Securities") representing undivided
beneficial interests in the assets of the Designated Trust. If specified in such
Pricing Agreement, the Designated Trust may grant to the Underwriters the right
to purchase at their election an additional number of Securities, specified in
such Pricing Agreement as provided in Section 3 hereof (the "Optional Designated
Securities"). The Firm Designated Securities and any Optional Designated
Securities, if any, are collectively called the "Designated Securities." The
proceeds of the concurrent sales of the Designated Securities to the public and
of the common securities of the Designated Trust (the "Common Securities") to
the Company are to be invested in junior subordinated deferrable interest
debentures of the Company identified in the Pricing Agreement with respect to
such Designated Securities (with respect to such Pricing Agreement, the
"Subordinated Debentures"), to be issued pursuant to a junior subordinated
indenture dated as of December 25, 1996 between the Company and The First
National Bank of Chicago, as trustee (the "Indenture"). The Designated
Securities may be exchangeable into Subordinated Debentures as specified in
Schedule II to such Pricing Agreement. The Designated Securities will be
guaranteed by the Company to the extent set forth in the Pricing Agreement with
respect to such Designated Securities (with respect to such Pricing Agreement,
the "Guarantee').
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the amended
and restated trust agreement identified in such Pricing Agreement (with respect
to such Pricing Agreement, the "Trust Agreement").
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will 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 Nos. 333-40837
and ▇▇▇-▇▇▇▇▇-▇▇ through 333-40837-03) (the "Initial Registration
Statement") in respect of the preferred securities of the Trusts,
including the Designated Securities, and the junior subordinated
deferrable interest debentures and guarantees of the Company, as
guarantor, including the Subordinated Debentures and the Guarantee, has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to
such registration statement, but including all documents incorporated
by reference in the
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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
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);
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(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;
(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
-4-
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
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
-5-
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 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
-6-
Indenture Act; the Subordinated Debentures are entitled to the benefits
of the Indenture; and the Company Agreements, which will be in
substantially the form filed as exhibits to the Registration Statement,
will conform to the descriptions thereof in the Prospectus as amended
or supplemented with respect to the Designated Securities to which they
relate;
(l) The issue and sale of the Designated Securities and the
compliance by the Designated Trust with all of the provisions of the
Designated Securities, the Trust Agreement, the Pricing Agreement
(including without limitation the provisions hereof incorporated by
reference therein) with respect to such Designated Securities and the
Over-allotment Option with respect to any Optional Designated
Securities, the purchase of the Subordinated Debentures by the
Designated Trust and the consummation of the transactions contemplated
herein and therein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Designated Trust is a party or, by
which the Designated Trust is bound or to which any of the property or
assets of the Designated Trust is subject, nor will such action result
in any violation of the provisions of the Trust Agreement or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Designated Trust or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Designated
Securities and the Common Securities by the Designated Trust, the
purchase of the Subordinated Debentures by the Designated Trust or the
consummation by the Designated Trust of the transactions contemplated
by the Pricing Agreement (including without limitation the provisions
hereof incorporated by reference therein) with respect to such
Designated Securities or the Trust Agreement, except such as have been,
or will have been prior to the Time of Delivery, obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters;
(m) The issuance by the Company of the Guarantee, the
compliance by the Company with all of the provisions of the Pricing
Agreement (including without limitation the provisions hereof
incorporated by reference therein) with respect to such Designated
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
-7-
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue of the Guarantee or the consummation by the Company of
the transactions contemplated by the Pricing Agreement (including
without limitation the provisions hereof incorporated by reference
therein) with respect to such Designated Securities or the Company
Agreements except such as have been, or will have been obtained prior
to the Time of Delivery and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(n) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting,
the Company or any of its subsidiaries (including the Designated
Trust), which might result in any material adverse change in the
financial condition, shareholders' equity or results of operations of
the Company and its subsidiaries (including the Designated Trust)
considered as one enterprise;
(o) Neither the Designated Trust nor the Company is, nor after
giving effect to the offering and sale of the Designated Securities
will either be, an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(p) Deloitte & Touche LLP, who have certified the financial
statements of the Company and its subsidiaries included in or
incorporated by reference in the Prospectus, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(q) The Pricing Agreement with respect to the Designated
Securities (incorporating the provisions hereof) has been duly
authorized, executed and delivered by the Company and the Designated
Trust.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Firm Designated Securities, the several Underwriters propose to offer the
Firm Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement
applicable to any Designated Securities that the Designated Trust thereby grants
to the Underwriters the right (an "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
-8-
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.
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".
-9-
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 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
-10-
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 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
-11-
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.
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
-12-
Agreement, the Indenture, the Guarantee and the Designated Securities; (viii)
the cost of qualifying the Designated Securities with The Depository Trust
Company; (ix) all fees and expenses in connection with listing the Designated
Securities (and the Subordinated Debentures, if necessary) on the New York Stock
Exchange and the cost of registering the Designated Securities (and the
Subordinated Debentures, if necessary) under Section 12 of the Exchange Act; and
(x) all other costs and expenses incident to the performance of its obligations
or the obligations of the Designated Trust under the applicable Pricing
Agreement under any Over-allotment Options which are not otherwise specifically
provided for in this Section 6. It is understood, however, that, except as
provided in this Section 6, Section 8 and Section 11 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Designated Securities by them,
and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Company in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Designated Trust
and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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) ▇▇▇▇ 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
-13-
and the Company has the corporate power and authority to own
its properties and conduct its business as described in the
Prospectus as amended or supplemented relating to the
Designated Securities;
(ii) The Company Agreements have each been duly
authorized, executed and delivered by the Company and
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; the Company Agreements conform
to the descriptions thereof in the Prospectus as amended or
supplemented; the Subordinated Debentures are entitled to the
benefits provided by the Indenture; and the Trust Agreement,
the Indenture and the Guarantee have each been duly qualified
under the Trust Indenture Act;
(iii) The Subordinated Debentures being issued at
such Time of Delivery have been duly authorized in conformity
with the terms of the Indenture, and when such Subordinated
Debentures have been duly executed, authenticated and issued
in conformity with the Indenture and delivered against payment
in accordance with the Pricing Agreement with respect to the
Designated Securities will constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(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);
-14-
(vi) The Pricing Agreement (including without
limitation the provisions hereof incorporated by reference
therein) with respect to the Designated Securities has been
duly authorized, executed and delivered by the Company;
(vii) The execution and delivery by the Company of
the Indenture, the Guarantee and the Pricing Agreement with
respect to the Designated Securities do not, and the issuance
of the Subordinated Debentures being issued at such Time of
Delivery in accordance with the Indenture, the sale by the
Company of the Subordinated Debentures as contemplated in the
Prospectus as amended and supplemented and the performance by
the Company of its obligations under the Company Agreements,
the Pricing Agreement with respect to the Designated
Securities and the Subordinated Debentures will not violate
the Company's Restated Certificate of Incorporation, as
amended, or By-Laws, in each case as in effect at the date of
such opinion, result in a default under or breach of certain
agreements specified in an annex to such opinion, in each case
as in effect at the date of such opinion, or violate any
existing Federal law of the United States or law of the State
of New York applicable to the Company (except that such
counsel need express no opinion with respect to Federal or
state securities laws, other antifraud laws, fraudulent
transfer laws, the Employee Retirement Income Security Act of
1974 and related laws and laws that restrict transactions
between United States persons and citizens or residents of
certain foreign countries, and insofar as performance by the
Company of its obligations under the Indenture, the Pricing
Agreement with respect to the Designated Securities and the
Subordinated Debentures is concerned, such counsel need
express no opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights); and
[THE FOLLOWING OPINION SHALL NOT BE REQUIRED IF IT IS
PROVIDED BY ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇] (viii) Each part of the
Registration Statement, when such part became effective, and
the Prospectus, as of its date (other than the financial
statements and other financial data therein, as to which such
counsel need express no opinion), appeared on their face to be
appropriately responsive, in all 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
-15-
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; also, nothing that has come to such counsel's
attention in the course of certain procedures (as described in
such opinion) has caused such counsel to believe that the
Prospectus, as of the date and time of delivery of such
opinion, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading. Such counsel may
state that he does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus except for
those made under the captions "Description of Junior
Subordinated Debentures", "Description of Preferred
Securities", "Description of Guarantees , "Relationship Among
the Preferred Securities, the Corresponding Junior
Subordinated Debentures, the Expense Agreement and the
Guarantees" and "Plan of Distribution" in the Prospectus and
under the captions "Certain Terms of Series B Preferred
Securities", "Certain Terms of Series B Subordinated
Debentures" and "Underwriting" in the Prospectus as amended
and supplemented insofar as they relate to provisions of
documents therein described and that he does not express any
opinion or belief as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus or as to the statements of the eligibility of the
Trustee.
(d) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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;
-16-
(iii) The Guarantee has been duly authorized executed
and delivered by the Company and constitutes a valid and
legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) The Pricing Agreement with respect to the
Designated Securities has been duly authorized, executed and
delivered by the Company;
(v) The Trust is not an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended',
(vi) The statements set forth in the Prospectus under
the captions "Description of Junior Subordinated 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 ▇▇▇▇ 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
-17-
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 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) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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
-18-
Securities (incorporating by reference the provisions hereof)
and to perform its obligations under such Pricing Agreement,
and (b) issue and perform its obligations under the Designated
Securities and the Common Securities;
(v) Under the Delaware Business Trust Act and the
Trust Agreement, the execution and delivery by the Designated
Trust of the Pricing Agreement relating to the Designated
Securities (incorporating by reference the provisions 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;
-19-
(x) Assuming that the Designated Trust derives no
income from or connected with services provided within the
State of Delaware and has no assets, activities (other than
maintaining the Delaware Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization,
approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by
the Designated Trust solely in connection with the issuance
and sale of the Designated Securities and the Common
Securities. In rendering the opinion expressed in this
paragraph (x), such counsel need express no opinion concerning
the securities laws of the State of Delaware;
(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) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, tax counsel for the Designated Trust
and the Company, shall have furnished to you their written opinion,
dated the respective Time of Delivery, in form and substance
satisfactory to you, to the effect that such firm confirms its opinion
set forth in the Prospectus as amended or supplemented under the
caption "Certain Federal Income Tax Consequences";
(g) At each Time of Delivery with respect to the Designated
Securities, Ernst & Young LLP (and/or, if specified in the Pricing
Agreement relating to such Designated Securities, one or more other
independent accountants acceptable to the Representatives) shall have
furnished to you a letter or letters, dated the date of delivery
thereof, in form and substance satisfactory to you, to the effect set
forth in Annex II hereto or as may otherwise be agreed in an additional
Schedule to the Pricing Agreement with respect to such Designated
Securities;
(h) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended and
supplemented with respect to the Designated Securities there shall not
have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as so amended and supplemented,
the effect of which is in the Representatives' judgment after
consultation with the Company so material and adverse as to make it
impractical or inadvisable to
-20-
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, 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,
-21-
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
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
-22-
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 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
-23-
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 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
-24-
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 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
-25-
provided in Section 6 and Section 8 hereof; but, if for any other reason,
Designated Securities are not delivered by or on behalf of the Designated Trust
as provided herein, the Designated Trust and the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Designated Trust and the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Company, as the case may be, set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Designated Trust and the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. Each Pricing Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Designated Trust and the Company and, to
the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Designated Trust or the 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
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original, but all such respective counterparts shall together constitute one and
the same instrument.
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ANNEX I
Pricing Agreement
-----------------
To the Underwriters named in
Schedule I hereto
c/o [Names and Addresses of Representatives]
-------- ----, ----
Dear Sirs:
BNY Capital , a statutory business trust formed under the laws of the
State of Delaware (the "Designated Trust") and The Bank of New York Company,
Inc., a New York corporation (the "Company"), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement Standard Provisions
(December 1997) (the "Standard Provisions"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the preferred
securities of the Designated Trust specified in Schedule II hereto. The Firm
Designated Securities and any Optional Designated Securities the Underwriters
may elect to purchase are herein referred to as the "Designated Securities".
Each of the provisions of the Standard Provisions is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of the
Standard Provisions so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Standard Provisions and the
address of the Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, (a) the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and
not jointly, to purchase from the Designated Trust, at the time and place and at
the purchase price to the Underwriters set forth in Schedule II hereto, the
number of Firm Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto, and (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional Designated
Securities, as provided below, the Designated Trust agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from 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.
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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
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Schedule I
(to Pricing Agreement)
Number of Maximum
Number of Firm Optional Designated
Designated Securities Securities to be
Underwriter to be Purchased Purchased
----------- --------------------- -------------------
[Names of Representatives]...................
[Name of Underwriters].......................
Total
--------------------- -------------------
===================== ===================
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
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.]
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[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:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
NAMES AND ADDRESSES OF REPRESENTATIVES:
-3-
ANNEX II
Accountants' Letter
Pursuant to Section 7(g) of the Underwriting Agreement Standard
Provisions (December 1997), the Company's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder, and the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them;
(ii) In their opinion, the consolidated financial statements, and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder; and they have made a review of the interim
financial information of the Company and its subsidiaries for the periods
specified in such letter in accordance with standards established by the
American Institute of Certified Public Accountants;
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a limited review of the unaudited consolidated financial
statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited information with respect to the annual
consolidated results of operations and financial position for fiscal years which
was included or incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year does not agree with the corresponding
amount in the audited consolidated financial statements for such fiscal years
which was included or incorporated by reference in the Company's Annual Reports
on Form 10-K for the last three fiscal years;
(B) the unaudited information with respect to the annual
consolidated results of operations and financial position for such fiscal years
which was included or incorporated by reference in the Prospectus does not agree
with the corresponding amounts in the audited consolidated financial statements
for such fiscal years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for the last three years;
(C) the unaudited consolidated financial statements included or
incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act and published rules and regulations thereunder or are not fairly presented
in conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(D) any unaudited financial data included in the Prospectus as at
any time, or for any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company do not agree with the
corresponding amounts in the unaudited consolidated financial statements from
which such data are derived;
(E) the unaudited financial data included in the Prospectus do not
agree with the corresponding amounts in the unaudited financial statements which
were not included in the Prospectus but from which were derived such financial
data;
(F) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated shareholders'
equity or allowance for loan losses, in each case as compared with amounts shown
in the latest consolidated statement of condition included or incorporated by
reference in the Prospectus except in each case for changes which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(G) for the period from the date of the latest complete
consolidated financial statements included or incorporated by reference in the
Prospectus to the specified date referred to in (F) above there were any
decreases in consolidated net interest income, net interest income after
provision for loan losses, or the total or fully diluted per share amounts of
net income of the Company, in each case as compared with the comparable period
of the preceding year, except in each case for decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
(iv) In addition to the examination referred to in their reports
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in subparagraph (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information specified by the Underwriters which are
derived from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated
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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.
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