SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
BNY Capital V
BNY Capital VI
BNY Capital VII
The Bank of New York Company, Inc. BNY Capital VIII
(Exact name of registrant as specified (Exact name of each registrant as specified
in its charter) in its certificate of trust)
New York Delaware
(State or other jurisdiction of (State or other jurisdiction of incorporation
incorporation or organization) or organization of each registrant)
13-2614959 13-7103738
(I.R.S. Employer Identification No.) 13-7177235
13-7177236
13-7177237
(I.R.S. Employer Identification No.)
One Wall Street c/o The Bank of New York Company, Inc.
New York, New York 10286 One Wall Street
(212) 495-1784 New York, New York 1028
(Address, including zip code, and telephone number, (212) 495-1784
including area code, of registrant's (Address, including zip code, and telephone number, including
principal executive offices) area code, of each registrant's principal executive offices)
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J. Michael Shepherd,
Executive Vice President,
General Counsel and Secretary
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Tel: (212) 635-1643
Fax: (212) 635-1070
(Name, address, including zip code, and telephone number, including area code, of agent for service of each registrant)
With copies to:
Paul A. Immerman Jeffrey J. Delaney
The Bank of New York Pillsbury Winthrop LLP
One Wall Street One Battery Park Plaza
New York, New York 10286 New York, New York 10004
Tel: (212) 635-1075 Tel: (212) 858-1000
Fax: (212) 635-1665 Fax: (212) 858-1500
_____________________
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If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_]
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of each class of to be offering price aggregate offering registration
securities to be registered registered (1) per unit (1) (2) price (1) (2) fee
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Debt Securities of The Bank of New York Company, Inc. (4)......
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Preferred Stock, no par value, of The Bank of New York
Company, Inc. (6)(9)........................................
----------------------------------------------------------------------------------------------------------------------------------
Class A Preferred Stock, par value $2.00 per share, of The
Bank of New York Company, Inc. (6)..........................
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Depositary Shares of The Bank of New York Company,
Inc.(6)(7)..................................................
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Common Stock of The Bank of New York Company, Inc.,
par value $7.50 per share (6)(8)(9).........................
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Trust Preferred Securities of BNY Capital V, BNY Capital
VI, BNY Capital VII and BNY Capital VIII....................
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The Bank of New York Company, Inc. Guarantees with
respect to Trust Preferred Securities (5) ..................
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Total ........................................................ $1,600,000,000 (3) 100% $1,600,000,000 $400,952(3)
==================================================================================================================================
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(1) Pursuant to General Instruction II (D) of Form S-3, such indeterminate
number or principal amount of Debt Securities (including Senior Debt
Securities, Senior Subordinated Debt Securities and Junior Subordinated Debt
Securities), Preferred Stock, Depositary Shares and Common Stock of The Bank
of New York Company, Inc. (the "Company") and Trust Preferred Securities
(the "Trust Preferred Securities") of BNY Capital V, BNY Capital VI, BNY
Capital VII and BNY Capital VIII (collectively, the "BNY Trusts") not to
exceed $1,600,000,000 maximum aggregate offering price exclusive of accrued
interest and dividends, if any (collectively, the "Offered Securities").
(2) The proposed maximum offering price per unit will be determined from time to
time in connection with the issuance of the Offered Securities registered
hereunder. The maximum aggregate offering price will be such amount in U.S.
dollars or the equivalent thereof in foreign currencies as shall result in a
maximum aggregate offering price for all securities of $1,600,000,000.
Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933 and exclusive of
accrued interest and dividends, if any.
(3) Includes an aggregate amount of $34,000,000 of unsold Debt Securities,
Preferred Stock, Depositary Shares and Common Stock registered by the
Company and Trust Preferred Securities registered by the BNY Trusts pursuant
to Registration Statement Nos. 333-70187, 333-70187-01, 333-70187-02, 333-
70187-03 and 333-70187-04, which was declared effective February 3, 1999.
Such securities are being carried forward to this Registration Statement
pursuant to Rule 429 under the Securities Act of 1933. The registration fee
of $9,452 associated with such securities was previously paid. Accordingly,
the proposed maximum offering price of Offered Securities as to which
additional registration fees in the amount of $391,500 are being paid is
$1,566,000,000.
(4) Junior Subordinated Debt Securities may be purchased by any of the BNY
Trusts with the proceeds of the sale of the Trust Preferred Securities of
that BNY Trust, together with the proceeds received from the Company for the
common securities to be issued by that BNY Trust to the Company. No separate
consideration will be received for such Junior Subordinated Debt Securities.
Such Junior Subordinated Debt Securities may later be distributed for no
additional consideration to the holders of Trust Preferred Securities of the
applicable BNY Trust upon certain events described in the applicable Trust
Agreement of such BNY Trust.
(5) The Company is also registering pursuant to this Registration Statement the
Company's Guarantees and other obligations that it may have with respect to
Trust Preferred Securities issued by any of the BNY Trusts. Pursuant to Rule
457(n) under the Securities Act of 1933, no separate consideration will be
received for any such Guarantee or any other such obligations.
(6) Shares of Preferred Stock, Depositary Shares or Common Stock may be issuable
upon conversion of Debt Securities registered hereunder. No separate
consideration will be received for such Preferred Stock, Depositary Shares
or Common Stock.
(7) In the event that the Company elects to offer to the public fractional
interests in shares of Preferred Stock registered hereunder, Depositary
Shares, evidenced by depositary receipts issued pursuant to a deposit
agreement, will be distributed to those persons purchasing such fractional
interests, and the shares of Preferred Stock will be issued to the
depositary under any such agreement.
(8) Shares of Common Stock may be issuable upon conversion of shares of
Preferred Stock registered hereunder. No separate consideration will be
received for such shares of Common Stock.
(9) Includes Preferred Stock Purchase Rights. Prior to the occurrence of certain
events, such Rights will not be exercisable or evidenced separately from the
Common Stock.
This registration statement contains a prospectus relating to both the offering of newly-issued securities and market-making transactions that occur on an ongoing basis in securities that have been previously issued in the offering described above.
SUBJECT TO COMPLETION, DATED JUNE 7, 2001
PROSPECTUS
$1,600,000,000
The Bank of New York Company, Inc.
Senior Debt Securities
Senior Subordinated Debt Securities
Junior Subordinated Debt Securities
Preferred Stock
Common Stock
BNY Capital V
BNY Capital VI
BNY Capital VII
BNY Capital VIII
Trust Preferred Securities
(fully and unconditionally guaranteed on a subordinated basis, as described herein, by The Bank of New York Company, Inc.)
The Bank of New York Company, Inc. and each BNY Trust may offer and sell from time to time, in one or more series, up to $1,600,000,000 of the securities listed above in connection with this prospectus. Of this amount, any selling stockholder named in a prospectus supplement may offer and sell from time to time shares of the Common Stock, par value $7.50 per share, of The Bank of New York Company, Inc. that it acquires or acquired in transactions that were not, or will not be, registered under the Securities Act of 1933, as amended. The Bank of New York Company, Inc. will not receive any proceeds from the sale of shares by a selling stockholder.
The Common Stock of The Bank of New York Company, Inc. is listed on the New York Stock Exchange under the symbol "BK."
This prospectus contains a general description of the securities which may be offered. The specific terms of the securities will be contained in one or more supplements to this prospectus. Read the prospectus and any supplement carefully before you invest. The supplement may also add, update or change information contained in this prospectus.
THE SECURITIES WILL BE EQUITY SECURITIES IN OR UNSECURED OBLIGATIONS OF THE BANK OF NEW YORK COMPANY, INC. AND WILL NOT BE SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This prospectus and applicable prospectus supplement may be used in the initial sale of the Securities. In addition, The Bank of New York Company, Inc., BNY Capital Markets, Inc. or any other affiliate controlled by The Bank of New York Company, Inc. may use this prospectus and applicable prospectus supplement in a market-making transaction involving the Securities after the initial sale. These transactions may be executed at negotiated prices that are related to market prices at the time of purchase or sale, or at other prices. The Bank of New York Company, Inc. and its affiliates may act as principal or agent in these transactions.
The date of this prospectus is , 2001.
The information in this prospectus is not complete and may be changed. The Bank of New York Company, Inc. may not sell these securities until the Registration Statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Table of Contents
Item Page Number ---- ----------- About this Prospectus......................................................................... 1 Consolidated Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividend Requirements................................................................ Where You Can Find More Information........................................................... The Company................................................................................... The BNY Trusts................................................................................ Certain Regulatory Considerations............................................................. Use of Proceeds............................................................................... Description of Senior Debt Securities and Senior Subordinated Debt Securities................. Description of Junior Subordinated Debt Securities............................................ Description of Trust Preferred Securities..................................................... Description of Guarantees..................................................................... Relationship Among the Trust Preferred Securities, the Corresponding Junior Subordinated Debt Securities, the Expense Agreement and the Guarantees.................................. Description of Preferred Stock................................................................ Description of Depositary Shares.............................................................. Description of Common Stock................................................................... Description of Preferred Stock Purchase Rights................................................ Book-Entry Issuance........................................................................... Validity of Securities........................................................................ Experts....................................................................................... Plan of Distribution.......................................................................... |
ABOUT THIS PROSPECTUS
This document is called a prospectus. This summary highlights selected information from this prospectus and may not contain all of the information that is important to you. To understand the terms of the securities, you should carefully read this prospectus with the attached prospectus supplement. This prospectus and the prospectus supplement together give the specific terms of the securities being offered. You should also read the documents referred to under the heading "Where You Can Find More Information" for information on The Bank of New York Company, Inc. and its financial statements. The Company has its principal offices at One Wall Street, New York, New York 10286 (telephone: 212- 495-1784). Certain capitalized terms used in this summary are defined elsewhere in this prospectus.
The Bank of New York Company, Inc., a New York corporation (also referred to as the "Company" or "we"), and BNY Capital V, BNY Capital VI, BNY Capital VII and BNY Capital VIII, each a statutory business trust formed under the laws of the State of Delaware (separately each trust is also referred to as a "BNY Trust" and together as the "BNY Trusts") have filed a registration statement with the Securities and Exchange Commission (the "SEC") under a "shelf" registration procedure. Under this procedure the Company and each BNY Trust may offer and sell from time to time, in one or more series, up to $1,600,000,000 or the equivalent in one or more foreign currencies, including the euro, of any of the following securities:
(i) unsecured senior debt securities,
(ii) unsecured senior subordinated debt securities,
(iii) unsecured junior subordinated debt securities,
(iv) shares of Preferred Stock, no par value,
(v) shares of Class A Preferred Stock, par value $2.00 per share,
(vi) depositary shares representing Preferred Stock or Class A Preferred Stock,
(vii) shares of Common Stock, par value $7.50 per share,
(viii) Trust Preferred Securities of a BNY Trust, and
(ix) Guarantees relating to the Trust Preferred Securities.
The securities may be sold for U.S. dollars, foreign denominated currency or currency units; amounts payable with respect to any such securities may be payable in U.S. dollars or foreign denominated currency or currency units.
This prospectus provides you with a general description of the securities we may offer. Each time we offer securities, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of the securities being offered. The prospectus supplement may also add, update or change information contained in this prospectus.
The prospectus supplement may also contain information about certain United States federal income tax considerations relating to the securities covered by the prospectus supplement.
The Company and each BNY Trust may sell securities to underwriters who will sell the securities to the public on terms fixed at the time of sale. In addition, the securities may be sold by the Company and each BNY Trust directly or through dealers or agents designated from time to time, which agents may be affiliates of the Company and each BNY Trust. If the Company, directly or through agents, solicits offers to purchase the securities, the Company reserves the sole right to accept and, together with its agents, to reject, in whole or in part, any such offer.
The prospectus supplement will also contain, with respect to the securities being sold, the names of the underwriters, dealers or agents, if any, together with the terms of offering, the compensation of such underwriters and the net proceeds to the Company and each BNY Trust.
Any underwriters, dealers or agents participating in the offering may be deemed "underwriters" within the meaning of the Securities Act of 1933, as amended (the "Securities Act").
Additionally, shares of Common Stock may be offered and sold from time to time by any selling stockholder named in a prospectus supplement who has acquired, or will acquire, Common Stock from the Company in transactions that were not, or will not be, registered under the Securities Act, as described under "Plan of Distribution." Specific information with respect to any offer and sale by any selling stockholder will be set forth in the prospectus supplement relating to that transaction.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
For the three months ended March 31, 2001 and 2000 and for the five years ended December 31, 2000, the consolidated ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividend requirements of the Company, computed as set forth below, were as follows:
Three months ended Year ended December 31:
------------------ -----------------------
3/31/2001 3/31/2000 2000 1999 1998 1997 1996
-------------- --------- ---- ---- ---- ---- ----
Earnings to Fixed Charges:
Excluding Interest on Deposits................... 6.04x 5.57x 5.43x 7.68x 4.83x 5.12x 4.30x
Including Interest on Deposits................... 2.07 1.94 1.93 2.64 2.05 2.06 2.00
Earnings to Combined Fixed Charges and
Preferred Stock Dividend
Requirements:
Excluding Interest on Deposits................... 4.93x 4.54x 4.48x 6.13x 4.08x 4.35x 4.15x
Including Interest on Deposits................... 1.98 1.86 1.85 2.48 1.95 1.97 1.98
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For purposes of computing both the ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividend requirements, earnings represent net income (loss) before extraordinary items plus applicable income taxes and fixed charges. Fixed charges, excluding interest on deposits, include interest expense (other than on deposits) and the proportion deemed representative of the interest factor of rent expense, net of income from subleases. Fixed charges, including interest on deposits, include all interest expense and the proportion deemed representative of the interest factor of rent expense, net of income from subleases. Pretax earnings required for preferred stock dividends were computed using tax rates for the applicable year.
WHERE YOU CAN FIND MORE INFORMATION
The Company and each BNY Trust have filed a registration statement with the SEC. This prospectus is part of the registration statement but the registration statement also contains additional information and exhibits. The Company also files proxy statements, annual, quarterly and special reports, and other information with the SEC. You may read and copy the registration statement and any reports, proxy statements and other information at the public reference room maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. You can call the SEC for further information about its public reference room at 1-800- 732-0330. Such material is also available at the SEC's website at "http://www.sec.gov".
The Company's Common Stock ($7.50 Par Value) is listed on the New York Stock Exchange under the symbol "BK". Reports and other information concerning the Company can be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
The SEC allows the Company to incorporate documents by reference in this prospectus. This means that by listing or referring to a document which the Company has filed with the SEC in this prospectus, that document is considered to be a part of this prospectus and should be read with the same care. When the Company updates the information contained in documents which have been incorporated by reference, by making future filings with the SEC, the information incorporated by reference in this prospectus is considered to be automatically updated.
The documents listed below are incorporated by reference into this prospectus:
. The Company's Annual Report on Form 10-K for the year ended December 31, 2000;
. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001;
. The Company's Current Reports on Form 8-K, dated January 16, 2001 and April 16, 2001;
. The description of the Company's Common Stock and Preferred Stock Purchase Rights contained in the Company's Registration Statements on Form 8-A filed pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment or report filed for the purpose of updating such description; and
. Any documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of this registration statement of which this prospectus is a part and before the effective date of that registration statement and after the date of this prospectus and before the termination of the offering of the securities.
You may request a free copy of any or all of these filings by writing or telephoning us at the following address:
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Attention: Corporate Secretary
Telephone number (212) 635-1787
No separate financial statements of any BNY Trust are included in this prospectus. The Company and the BNY Trusts do not consider that such financial statements would be material to holders of the Trust Preferred Securities because each BNY Trust is a special purpose entity, has no operating history or independent operations and is not engaged in and does not propose to engage in any activity other than holding as trust assets the Corresponding Junior Subordinated Debt Securities (as defined below under the heading "The BNY Trusts") of the Company and issuing the Trust Securities. Furthermore, taken together, the Company's obligations under each series of Corresponding Junior Subordinated Debt Securities, the Junior Indenture pursuant to which the Corresponding Junior Subordinated Debt Securities will be issued, the related Trust Agreement, the related Expense Agreement and the related Guarantee provide, in the aggregate, a full, irrevocable and unconditional guarantee of payments of Distributions and other amounts due on the related Trust Preferred Securities of a BNY Trust. For a more detailed discussion see "The BNY Trusts", "Description of Trust Preferred Securities", "Description of Junior Subordinated Debt Securities--Corresponding Junior Subordinated Debentures" and "Description of Guarantees". In addition, the Company does not expect that any of the BNY Trusts will be filing reports under the Exchange Act with the SEC.
You should only rely on the information contained in this prospectus or any prospectus supplement or incorporated by reference. Neither the Company nor any BNY Trust has authorized anyone to provide you with different information. Neither the Company nor any BNY Trust is making an offer of its securities in any state or country where the offer is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of a later date than the date of this prospectus or any prospectus supplement. The financial condition, results of operations or business prospects of the Company may have changed since those dates.
THE COMPANY
The Bank of New York Company, Inc., a New York corporation, is a financial
holding company subject to the Bank Holding Company Act of 1956, as amended (the
"BHC Act"). Our principal wholly-owned banking subsidiary is The Bank of New
York (the "Bank"). We provide a complete range of banking and other financial
services to corporations and individuals worldwide through our core business:
Corporate Banking, Retail Banking, Securities and Other Processing, Trust,
Investment Management and Private Banking and Financial Market Services.
The Bank, which was founded in 1784, was New York's first bank and is the oldest bank in the country still operating under its original name. The Bank is a state-chartered New York banking corporation and a member of the Federal Reserve System (the "Federal Reserve"). The Bank conducts a national and international wholesale banking business and a retail banking business in the New York City, New Jersey and Connecticut areas, and provides a comprehensive range of corporate and personal trust, securities processing and investment services.
The Company's principal asset and source of income is its investment in the Bank and it is a legal entity separate and distinct from the Bank and its other subsidiaries. There are various legal limitations on the extent to which the Bank and the other subsidiaries can finance or otherwise supply funds to the Company and certain of its affiliates. See "Certain Regulatory Considerations" below.
The Company is a non-operating holding company and almost all of the operating assets of the Company and its consolidated subsidiaries are owned by such subsidiaries. The Company relies primarily on dividends from such subsidiaries to meet its obligations. See "Certain Regulatory Considerations--Dividends".
Because the Company is a holding company, its rights and the rights of its creditors, including the holders of any Debt Securities, to a share of the assets of any subsidiary upon the liquidation or recapitalization of the subsidiary will be subject to the prior claims of the subsidiary's creditors (including, in the case of the Bank, and The Bank of New York (Delaware), their depositors), except to the extent that the Company may itself be a creditor with recognized claims against the subsidiary.
Accordingly, the Debt Securities will be effectively subordinated to all existing and future liabilities of the Company's subsidiaries, and holders of Debt Securities should look only to the assets of the Company for payments on the Debt Securities.
THE BNY TRUSTS
Each BNY Trust is a statutory business trust created under Delaware law pursuant to:
(i) a trust agreement executed by the Company, as Depositor of the BNY Trust, and the Delaware Trustee of such BNY Trust, and
(ii) a certificate of trust filed with the Delaware Secretary of State.
Each Trust Agreement will be amended and restated in its entirety (each, as so amended and restated, a "Trust Agreement") substantially in the form filed as an exhibit to the registration statement of which this prospectus forms a part.
Each Trust Agreement will be qualified as an indenture under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
Each BNY Trust may offer to the public, from time to time, preferred securities (the "Trust Preferred Securities") representing preferred beneficial interests in the applicable BNY Trust. In addition to Trust Preferred Securities offered to the public, each BNY Trust will sell common securities representing common ownership interests in such BNY Trust to the Company (the "Trust Common Securities"). All of the Trust Common Securities of each BNY Trust will be owned by the Company. The Trust Common Securities and the Trust Preferred Securities together are also referred to as the "Trust Securities."
Each BNY Trust exists for the exclusive purposes of:
(i) issuing and selling its Trust Securities,
(ii) using the proceeds from the sale of such Trust Securities to acquire a series of Corresponding Junior Subordinated Debt Securities issued by the Company, and
(iii) engaging in only those other activities necessary or incidental thereto (such as registering the transfer of the Trust Securities).
When any BNY Trust sells its Trust Preferred Securities to the public it will use the money it receives together with the money it receives from the sale of its Trust Common Securities to buy a series of the Company's Junior Subordinated Debt Securities (the "Corresponding Junior Subordinated Debt Securities"). The payment terms of the Corresponding Junior Subordinated Debt Securities will be virtually the same as the terms of that BNY Trust's Trust Preferred Securities (the "Related Trust Preferred Securities").
Each BNY Trust will own only the applicable series of Corresponding Junior Subordinated Debt Securities. The only source of funds for each BNY Trust will be the payments it receives from the Company on the Corresponding Junior Subordinated Debt Securities. The BNY Trust will use such funds to make cash payments to holders of the Trust Preferred Securities.
Each BNY Trust will also be a party to an Expense Agreement with the Company. Under the terms of the Expense Agreement the BNY Trust will have the right to be reimbursed by the Company for certain expenses.
The Trust Common Securities of a BNY Trust will rank equally, and payments will be made thereon pro rata, with the Trust Preferred Securities of such BNY Trust, except that upon the occurrence and continuance of an event of default under a Trust Agreement resulting from an event of default under the Junior Indenture, the rights of the Company, as holder of the Trust Common Securities, to payment in respect of Distributions and payments upon liquidation or redemption will be subordinated to the rights of the holders of the Trust Preferred Securities of such BNY Trust. See "Description of Trust Preferred Securities--Subordination of Trust Common Securities". The Company will acquire Trust Common Securities in an aggregate Liquidation Amount equal to not less than 3% of the total capital of each BNY Trust.
The prospectus supplement relating to any Trust Preferred Securities will contain the details of the cumulative preferential cash distributions ("Distributions") to be made periodically to the holders of the Trust Securities.
Under certain circumstances the Company may redeem the Corresponding Junior Subordinated Debt Securities which it sold to a BNY Trust. If it does this, the BNY Trust will redeem a like amount of the Trust Preferred Securities which it sold to the public and the Trust Common Securities which it sold to the Company.
Under certain circumstances the Company may terminate each BNY Trust and cause the Corresponding Junior Subordinated Debt Securities to be distributed to the holders of the Related Trust Preferred Securities. If this happens owners of the Related Trust Preferred Securities will no longer have any interest in such BNY Trust and will only own the Corresponding Junior Subordinated Debt Securities.
Generally the Company needs the approval of the Board of Governors of the Federal Reserve System (the "Federal Reserve Board") to redeem the Corresponding Junior Subordinated Debt Securities or to terminate one or more BNY Trusts. A more detailed description is provided under the heading "Description of Trust Preferred Securities--Liquidation Distribution Upon Termination".
Unless otherwise specified in the applicable prospectus supplement:
. Each BNY Trust will have a term of approximately 55 years from the date it issues its Trust Securities, but may terminate earlier as provided in the applicable Trust Agreement.
. Each BNY Trust's business and affairs will be conducted by its trustees.
. The trustees will be appointed by the Company as holder of the Trust Common Securities.
. The trustees will be Bank One, National Association, as the Property Trustee (the "Property Trustee"), Bank One Delaware, Inc., as the Delaware Trustee (the "Delaware Trustee"), and two individual trustees (the "Administrative Trustees") who are employees or officers of or affiliated with the Company (collectively, the "BNY Trust Trustees"). Bank One, National Association, as Property Trustee, will act as sole indenture trustee under each Trust Agreement for purposes of compliance with the Trust Indenture Act. Bank One, National Association will also act as trustee under the Guarantees and the Junior Indenture. See "Description of Guarantees" and "Description of Junior Subordinated Debt Securities".
. If an event of default under the Trust Agreement for a BNY Trust has occurred and is continuing, the holder of the Trust Common Securities of that BNY Trust, or the holders of a majority in Liquidation Amount of the Related Trust Preferred Securities, will be entitled to appoint, remove or replace the Property Trustee or the Delaware Trustee for such BNY Trust.
. Under all circumstances, only the holder of the Trust Common Securities has the right to vote to appoint, remove or replace the Administrative Trustees.
. The duties and obligations of each BNY Trust Trustee are governed by the applicable Trust Agreement.
. The Company will pay all fees and expenses related to each BNY Trust and the offering of the Trust Preferred Securities and will pay, directly or indirectly, all ongoing costs, expenses and liabilities of each BNY Trust.
The principal executive office of each BNY Trust is One Wall Street, New York, New York 10286 and its telephone number is (212) 495-1784.
CERTAIN REGULATORY CONSIDERATIONS
General
As a bank holding company and a financial holding company, the Company is subject to the regulation, supervision and examination of the Federal Reserve Board under the Bank Holding Company Act of 1956, as amended by the Graham- Leach-Bliley Act, which became effective March 11, 2000. The Company's declaration to become a financial holding company became effective on August 11, 2000.
For a discussion of the material elements of the regulatory framework applicable to bank holding companies and their subsidiaries, financial holding companies and specific information relevant to the Company, please refer to the Company's Annual Report on Form 10-K for the year ended December 31, 2000 and any other subsequent report filed with the SEC by the Company, which are incorporated by reference in this prospectus. This regulatory framework is intended primarily for the protection of depositors and the federal deposit insurance funds and not for the protection of investors.
As a result of this regulatory framework, the Company's earnings are affected by the legislative and governmental actions of various regulatory authorities, including the Federal Reserve Board, which is the principal federal regulator of the Company's banking subsidiaries, and the Federal Deposit Insurance Corporation, which insures, up to applicable limits, the deposits of the Bank and the Company's other insured bank subsidiaries. In addition, there
are numerous governmental requirements and regulations which affect the Company's business activities. A change in the applicable statutes, regulations or regulatory policy may have a material effect on the Company's business.
The Company's subsidiary banks are also subject to regulation, supervision and examination by applicable federal and state banking agencies. The Bank, the Company's principal banking subsidiary, is a New York chartered banking corporation, a member of the Federal Reserve and subject to regulation, supervision and examination by the Federal Reserve Board and by the New York State Banking Department. Depository institutions, such as the Bank, are also affected by various state and federal laws, including those related to consumer protection and similar matters.
The Company also has other financial service subsidiaries that are subject to regulation, supervision and examination by the Federal Reserve Board, as well as other applicable state and federal regulatory agencies and self regulatory organization. For example, the Company's brokerage subsidiaries are subject to supervision and regulation by the SEC, the National Association of Securities Dealers, the New York Stock Exchange and state securities regulators.
Dividends
The Company is a legal entity separate and distinct from its subsidiaries (including the Bank), although the principal source of the Company's cash revenues are payments of interest and dividends from the Bank. There are various legal and regulatory limitations on the extent to which the Bank can finance or otherwise supply funds to the Company and certain of its other affiliates.
The Bank is subject to dividend limitations under the Federal Reserve Act and the New York Banking Law. Under these statutes, prior regulatory approval is required for dividends in any year that would exceed the net income of the Bank for such year combined with retained net income for the prior two years. Also, the Bank is prohibited from paying a dividend in an amount greater than "undivided profits then on hand."
Under the first of these two standards, at March 31, 2001 the Bank could declare dividends of approximately $866 million. As of March 31, 2001 the second standard was less restrictive than the first.
In addition to these statutory tests, the Bank's primary federal regulator (the Federal Reserve Board) could prohibit a dividend if it determined that the payment would constitute an unsafe or unsound banking practice. The Federal Reserve Board has indicated that, generally, dividends should be paid by banks only to the extent of earnings from continuing operations.
Consistent with its policy regarding bank holding companies serving as a source of financial strength for their subsidiary banks, the Federal Reserve Board has indicated that, as a matter of prudent banking, a bank holding company generally should not maintain a rate of cash dividends unless its net income available to common stockholders has been sufficient to fully fund the dividends, and the prospective rate of earnings retention appears consistent with the bank holding company's capital needs, asset quality and overall financial condition. In the year ended December 31, 2000, the Company's net income available to common stockholders was $1,429 million and it paid common stock dividends totaling $484 million.
Transactions with Affiliates
The Federal Reserve Act limits amounts of, and requires collateral on, extensions of credit by the Company's insured bank subsidiaries to the Company and, with certain exceptions, its nonbank affiliates; also, there are restrictions on the amounts of investment by such banks in stock and other securities of the Company and such affiliates, and restrictions on the acceptance of their securities as collateral for loans by such banks. Extensions of credit by insured bank subsidiaries to each of the Company and such affiliates are limited to 10% of such bank subsidiary's Tier 1 capital, and in the aggregate for the Company and all such affiliates to 20%.
USE OF PROCEEDS
Except as may be set forth in a prospectus supplement, the Company will use the net proceeds from the sale of the securities offered hereby for general corporate purposes, including refinancing of existing debt, investments in, or extensions of credit to, the Bank and, to a lesser extent, other existing or future subsidiaries. Pending such use, the net proceeds may be temporarily invested in short-term obligations. The precise amounts and timing of the application of proceeds used for general corporate purposes will depend upon funding requirements of the Company and its subsidiaries and the availability of other funds. The Company expects, on a recurring basis, to engage in additional financing of a character and amount to be determined as the need arises.
The Company will not receive any proceeds from the sale of any shares of Common Stock by any selling stockholder.
DESCRIPTION OF SENIOR DEBT SECURITIES AND
SENIOR SUBORDINATED DEBT SECURITIES
Summary
The following description of the terms of the Senior Debt Securities and the Senior Subordinated Debt Securities (referred to as the "Debt Securities" in this section only) sets forth certain general terms and provisions. The particular terms of any offering of Debt Securities will be contained in a prospectus supplement. The prospectus supplement will describe the:
. specific designation
. aggregate principal amount
. denominations
. maturity
. premium, if any
. interest rate, if any (which may be fixed or variable)
. dates interest is paid
. terms for redemption at the option of the Company or the holder, if any
. terms for sinking or purchase fund payments, if any
. currency or currencies of denomination and payment, if other than U.S. dollars
. securities exchanges, if any, on which the Debt Securities are to be listed
. initial public offering price
. principal amounts, if any, to be purchased by underwriters
. other terms in connection with the offering and sale of the Debt Securities being sold.
All or a portion of the Debt Securities may be issued in global form. This means that you will not receive a paper certificate. Instead you will receive a statement showing your ownership of the Debt Securities that you purchased. A more detailed discussion appears under the heading "Book-Entry Issuance."
Senior and Senior Subordinated Debt Securities may be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below market rates. Certain United States Federal income tax consequences and special considerations applicable to any such Senior and Senior Subordinated Debt Securities will be described in the applicable prospectus supplement.
If any index is used to determine the amount of payments of principal of, premium, if any, or interest on any series of Debt Securities, special United States Federal income tax, accounting and other considerations applicable thereto will be described in the applicable prospectus supplement.
The Senior Debt Securities are to be issued under an Indenture, dated as of July 18, 1991, as it may be supplemented from time to time (the "Senior Indenture"), between the Company and Bankers Trust Company, as Trustee (the "Senior Trustee"). The Senior Subordinated Debt Securities are to be issued under an Indenture, dated as of October 1, 1993, as it may be supplemented from time to time (the "Senior Subordinated Indenture"), between the Company and Chase Manhattan Trust Company, National Association, as Trustee (the "Senior Subordinated
Trustee"). The Senior Indenture is incorporated as an exhibit to the registration statement of which this prospectus is a part by reference to the Company's Registration Statement on Form S-3 (No. 33-51984) and the Senior Subordinated Indenture is incorporated as an exhibit to the Registration Statement of which this prospectus is a part by reference to the Company's Registration Statement on Form S-3 (No. 33-50333). The two Indentures are sometimes referred to collectively as the "Indentures," and the two Trustees are sometimes referred to collectively as the "Trustees." The Indentures are qualified under the Trust Indenture Act.
The following summaries of certain provisions of the Senior Debt Securities, the Senior Subordinated Debt Securities and the Indentures are not complete. For a complete description of these Debt Securities you should read the Indenture applicable to a particular series of Debt Securities (the "Applicable Indenture"), including the definitions therein of certain terms.
Wherever we refer to particular sections, articles or defined terms of the Applicable Indentures we are incorporating those sections, articles or defined terms into this prospectus by reference. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Applicable Indenture.
General
The Indentures do not limit the aggregate principal amount of the Debt Securities or of any particular series of Debt Securities that may be issued thereunder and provide that Debt Securities may be issued from time to time in series. The Senior Debt Securities will be unsecured and unsubordinated obligations of the Company and will rank equally with all other unsecured and unsubordinated indebtedness of the Company. The Senior Subordinated Debt Securities will be unsecured subordinated obligations of the Company. A more complete discussion appears under the heading "--Subordination of Senior Subordinated Debt Securities."
The particular terms of any series of Debt Securities will be contained in the prospectus supplement. The prospectus supplement will specify the following terms or additional provisions of the Debt Securities:
(1) the title of the series of Debt Securities;
(2) whether the series of Debt Securities are Senior Debt Securities or Senior Subordinated Debt Securities;
(3) any limit on the aggregate principal amount of the series of Debt Securities;
(4) the price (expressed as a percentage of the aggregate principal amount thereof) at which the series of the Debt Securities will be issued;
(5) the Person to whom any interest on a Debt Security of such series will be payable, if other than the Person in whose name that Debt Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(6) the date or dates on which the principal of the series of Debt Securities will be payable;
(7) the rate or rates (or the formula pursuant to which such rate or rates shall be determined) per annum at which the series of Debt Securities will bear interest, if any;
(8) the date or dates from which any such interest will accrue and the dates on which such payment of any such interest will be payable and the Regular Record Dates for such interest payment dates;
(9) the place or places where the principal of (and premium, if any) and interest on the series of Debt Securities shall be payable;
(10) the period or periods within which, the price or prices at which, and the terms and conditions upon which, the series of Debt Securities may be redeemed in whole or in part, at the option of the Company;
(11) the obligation, if any, of the Company to redeem, repay, or purchase such series of Debt Securities pursuant to any sinking fund or analogous provision or at the option of a Holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, such Debt Securities shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(12) the denominations in which such series of Debt Securities will be issuable, if other than denominations of $1,000 and any integral multiple thereof;
(13) the currency or currencies in which payment of principal and premium, if any, and interest on the series of Debt Securities will be payable, if other than United States dollars;
(14) if the principal of (and premium, if any) or interest, if any, on such series of Debt Securities is to be payable, at the election of the Company or a Holder thereof, in a currency or currencies other than that in which such series of Debt Securities are stated to be payable, the currency or currencies in which payment of the principal of (and premium, if any) or interest, if any, on such series of Debt Securities as to which such election is made will be payable, and the period or periods within which, and the terms and conditions upon which, such election may be made;
(15) the index, if any, with reference to which the amount of any payment of principal of (and premium, if any) or interest on the series of Debt Securities will be determined;
(16) the portion of the principal amount of such series of Debt Securities which will be payable upon declaration of acceleration of the Maturity thereof, if other than the principal amount thereof;
(17) any additional Events of Default or, in the case of Senior Subordinated Debt Securities, Default, solely with respect to the Debt Securities;
(18) whether the provisions of the Applicable Indenture described under "-- Defeasance and Covenant Defeasance" will be applicable to such Debt Securities;
(19) whether any of the series of Debt Securities are to be issuable in global form;
(20) any additional restrictive covenants included solely for the benefit of the series of Debt Securities;
(21) if the series of Debt Securities are Senior Subordinated Debt Securities, whether the provisions in the Senior Subordinated Indenture described under "--Subordination of Senior Subordinated Debt Securities" or other subordination provisions will be applicable to such Senior Subordinated Debt Securities; and
(22) any additional terms of the series of Debt Securities not inconsistent with the provisions of the Applicable Indenture. (Sections 301 and 901).
With respect to Debt Securities sold through underwriters or agents, the maturities and interest rates of such Debt Securities may be fixed by the Company from time to time, in which case such maturities and rates will not be set forth in the prospectus supplement relating thereto.
Unless otherwise provided in the prospectus supplement:
(i) principal of (and premium, if any) and interest on the Debt Securities will be payable, and the Debt Securities will be exchangeable and transfers thereof will be registerable, at the office or agency of The Bank of New York in the Borough of Manhattan, The City of New York, except that, at the option of the Company, interest may be paid by mailing a check to the address of the Person entitled thereto as it appears in the Security Register. (Sections 202, 305 and 1002); and
(ii) the Debt Securities will be issued only in registered form without coupons and in denominations of $1,000 and integral multiples thereof. (Section 302).
No service charge will be made for any transfer or exchange of the Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. (Section 305).
Debt Securities may be issued as Original Issue Discount Debt Securities to be sold at a substantial discount below their principal amount. Special Federal income tax, accounting and other considerations applicable thereto will be described in the prospectus supplement relating thereto. "Original Issue Discount Debt Security" means any security which provides for an amount less than the principal amount thereof to be due and payable upon the declaration of acceleration of the maturity thereof upon the occurrence and continuance of an Event of Default. (Section 101).
If the Debt Securities are denominated in whole or in part in any currency other than United States dollars, if the principal of (and premium, if any) or interest, if any, on the Debt Securities are to be payable at the election of the Company or a Holder thereof, in a currency or currencies other than that in which such Debt Securities are to be payable, or if any index is used to determine the amount of payments of principal of, premium, if any, or interest on any series of the Debt Securities, special Federal income tax, accounting and other considerations applicable thereto will be described in the prospectus supplement relating thereto.
Because the Company is a holding company, its rights and the rights of its creditors, including the holders of the Debt Securities, to a share of the assets of any subsidiary upon the liquidation or recapitalization of the subsidiary will be subject to the prior claims of the subsidiary's creditors (including, in the case of the Bank and The Bank of New York (Delaware), their depositors), except to the extent that the Company may itself be a creditor with recognized claims against the Subsidiary.
Indebtedness of the Company which is senior to the Senior Subordinated Debt Securities, at March 31, 2001, totaled approximately $2,077,157,020. This amount does not include indebtedness of subsidiaries of the Company. See also "The Company" and "Certain Regulatory Considerations" for a more detailed discussion.
The Indentures do not contain any provisions that would provide protection to Holders of the Debt Securities against a sudden and dramatic decline in credit quality of the Company resulting from any highly leveraged transaction, takeover, merger, recapitalization or similar restructuring or change in control.
The Indentures allow us to merge or consolidate with another company, or to sell all or substantially all of our assets to another company. If these events occur, the other company will be required to assume our responsibilities relating to the Debt Securities, and we will be released from all liabilities and obligations. See "--Merger, Consolidation and Sale of Assets" for a more detailed discussion.
The Indentures provide that holders of a majority of the total principal amount of outstanding Debt Securities of any series may vote to change certain of our obligations or certain of your rights concerning the Debt Securities of that series. However, to change the amount or timing of principal, interest or other payments under the Debt Securities, every holder in the series must consent. See "Modification of the Indentures" for a more detailed discussion.
Subordination of Senior Subordinated Debt Securities
The payment of the principal of and interest on the Senior Subordinated Debt Securities will, to the extent set forth in the Senior Subordinated Indenture, be subordinated in right of payment to the prior payment in full of all Senior Indebtedness (as defined in the Senior Subordinated Indenture). In certain events of insolvency, the payment of the principal of and interest on the Senior Subordinated Debt Securities will, to the extent set forth in the Senior Subordinated Indenture, also be effectively subordinated in right of payment to the prior payment in full of all Other Financial Obligations (as defined in the Senior Subordinated Indenture). Upon any payment or distribution of assets to creditors upon any liquidation, dissolution, winding up, reorganization, assignment for the benefit of creditors, marshaling of assets or any bankruptcy, insolvency or similar proceedings of the Company, the holders of all Senior Indebtedness will first be entitled to receive payment in full of all amounts due or to become due thereon before the holders of the Senior Subordinated Debt Securities will be entitled to receive any payment in respect of the principal of or interest on the Senior Subordinated Debt Securities. If upon any such payment or distribution of assets to
creditors, there remain, after giving effect to such subordination provisions in favor of the holders of Senior Indebtedness, any amounts of cash, property or securities available for payment or distribution in respect of Senior Subordinated Debt Securities (as defined in the Senior Subordinated Indenture, "Excess Proceeds") and if, at such time, any Entitled Persons in respect of Other Financial Obligations have not received payment in full of all amounts due or to become due on or in respect of such Other Financial Obligations, then such Excess Proceeds shall first be applied to pay or provide for the payment in full of such Other Financial Obligations before any payment or distribution may be made in respect of the Senior Subordinated Debt Securities. In the event of the acceleration of the maturity of any Senior Subordinated Debt Securities, the holders of all Senior Indebtedness will first be entitled to receive payment in full of all amounts due thereon before the holders of the Senior Subordinated Debt Securities will be entitled to receive any payment upon the principal of or interest on the Senior Subordinated Debt Securities. No payments on account of principal of or interest on the Senior Subordinated Debt Securities or on account of the purchase or acquisition of Senior Subordinated Debt Securities may be made if there shall have occurred and be continuing a default in any payment with respect to Senior Indebtedness, or if any judicial proceeding shall be pending with respect to any such default. (Article Thirteen of the Senior Subordinated Indenture).
By reason of such subordination in favor of the holders of Senior Indebtedness, in the event of insolvency, creditors of the Company who are not holders of Senior Indebtedness or of the Senior Subordinated Debt Securities may recover less, ratably, than holders of Senior Indebtedness and may recover more, ratably, than the holders of the Senior Subordinated Debt Securities. By reason of the obligation of the holders of Senior Subordinated Debt Securities to pay over any Excess Proceeds to Entitled Persons in respect of Other Financial Obligations, in the event of insolvency, holders of Existing Subordinated Indebtedness may recover less, ratably, than Entitled Persons in respect of Other Financial Obligations and may recover more, ratably, than the holders of Senior Subordinated Debt Securities.
Unless otherwise specified in the prospectus supplement relating to the particular series of Senior Subordinated Debt Securities offered thereby, Senior Indebtedness is defined in the Senior Subordinated Indenture as (a) the principal of (and premium, if any), and interest on all of the Company's indebtedness for money borrowed, whether outstanding on the date of execution of the Senior Subordinated Indenture or thereafter created, assumed or incurred, except (i) such indebtedness as is by its terms expressly stated to be junior in right of payment to the Senior Subordinated Debt Securities and (ii) such indebtedness as is by its terms expressly stated to rank equally with the Senior Subordinated Debt Securities and (b) any deferrals, renewals or extensions of any such Senior Indebtedness; provided, however, that Senior Indebtedness shall not include Existing Subordinated Indebtedness. (Section 101 of the Senior Subordinated Indenture). The term "indebtedness for money borrowed" when used with respect to the Company is defined to mean any obligation of, or any obligation guaranteed by, the Company for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, and any deferred obligation of, or any such obligation guaranteed by, the Company for the payment of the purchase price of property or assets. (Section 101 of the Senior Subordinated Indenture).
Unless otherwise specified in the prospectus supplement relating to the particular series of Senior Subordinated Debt Securities, Existing Subordinated Indebtedness means the Company's:
. $350,000,000 7.625% Subordinated Notes due 2002
. $250,000,000 7.875% Subordinated Notes due 2002
. $300,000,000 6.625% Subordinated Notes due 2003
. $250,000,000 6.50% Subordinated Notes due 2003
. $300,000,000 8.50% Subordinated Notes due 2004
. $300,000,000 7.30% Subordinated Notes due 2009
. $25,000,000 7.00% Subordinated Medium-Term Notes Series C due 2009
. $35,000,000 7.55% Senior Subordinated Medium-Term Notes Series D due 2009
. $25,000,000 7.20% Senior Subordinated Medium-Term Notes Series D due 2009
. $15,000,000 7.05% Senior Subordinated Medium-Term Notes Series D due 2009
. $15,000,000 7.10% Senior Subordinated Medium-Term Notes Series D due 2009
. $15,000,000 7.625% Senior Subordinated Medium-Term Notes Series D due 2010
. $30,000,000 7.50% Subordinated Retail Medium-Term Notes due 2010
. $50,000,000 7.54% Subordinated Retail Medium-Term Notes due 2010
. $50,000,000 7.00% Subordinated Retail Medium-Term Notes due 2010
. $10,000,000 6.70% Subordinated Retail Medium-Term Notes due 2011
. $25,000,000 6.60% Subordinated Retail Medium-Term Notes due 2011
. $10,000,000 6.70% Subordinated Retail Medium-Term Notes due 2011
. $15,000,000 6.75% Subordinated Retail Medium-Term Notes due 2011
. $10,000,000 7.00% Subordinated Retail Medium-Term Notes due 2011
. $10,000,000 7.00% Subordinated Retail Medium-Term Notes due 2011
. $20,000,000 7.10% Subordinated Retail Medium-Term Notes due 2011
. $25,000,000 6.50% Subordinated Retail Medium-Term Notes due 2013
. $15,000,000 6.57% Subordinated Retail Medium-Term Notes Series C due 2013
. $25,000,000 6.50% Subordinated Retail Medium-Term Notes Series C due 2013
. $10,000,000 6.50% Subordinated Retail Medium-Term Notes Series C due 2013
. $25,000,000 6.25% Subordinated Retail Medium-Term Notes Series C due 2013
. $25,000,000 6.10% Subordinated Retail Medium-Term Notes Series C due 2014
. $40,000,000 6.25% Subordinated Retail Medium-Term Notes Series C due 2014
. $35,000,000 6.50% Subordinated Retail Medium-Term Notes Series C due 2014
. $10,000,000 6.50% Subordinated Retail Medium-Term Notes Series C due 2014
. $25,000,000 7.125% Senior Subordinated Medium-Term Notes Series D due 2014
. $25,000,000 7.75% Senior Subordinated Medium-Term Notes Series D due 2014
. $25,000,000 7.75% Senior Subordinated Medium-Term Notes Series D due 2014
. $40,000,000 7.75% Senior Subordinated Medium-Term Notes Series D due 2014
. $20,000,000 7.30% Senior Subordinated Medium-Term Notes Series D due 2014
. $10,000,000 7.125% Subordinated Retail Medium-Term Notes due 2015
. $25,000,000 6.75% Subordinated Retail Medium-Term Notes due 2018
. $10,000,000 6.20% Subordinated Medium-Term Notes Series C due 2018
. $25,000,000 6.72% Subordinated Medium-Term Notes Series C due 2019
. $25,000,000 8.00% Senior Subordinated Medium-Term Notes Series D due 2015
. $25,000,000 7.60% Senior Subordinated Medium-Term Notes Series D due 2010
. $25,000,000 7.60% Senior Subordinated Medium-Term Notes Series D due 2010
. $25,000,000 7.40% Senior Subordinated Medium-Term Notes Series D due 2010
. $25,000,000 7.75% Senior Subordinated Medium-Term Notes Series D due 2015
. $25,000,000 7.50% Senior Subordinated Medium-Term Notes Series D due 2010
. $25,000,000 7.75% Senior Subordinated Medium-Term Notes Series D due 2015
. $25,000,000 7.60% Senior Subordinated Medium-Term Notes Series D due 2015
. $25,000,000 7.75% Senior Subordinated Medium-Term Notes Series D due 2015
. $25,000,000 7.53% Senior Subordinated Medium-Term Notes Series D due 2015
. $20,000,000 6.625% Senior Subordinated Medium-Term Note Series D due 2016
. $50,000,000 7.00% Senior Subordinated Medium-Term Note Series D due 2016
. $14,424,126 Zero Coupon Subordinated Medium-Term Notes Series C due 2014
. $21,789,614 Zero Coupon Subordinated Medium-Term Notes Series C due 2014
. $15,183,335 Zero Coupon Subordinated Medium-Term Notes Series C due 2014
. $84,685,499 Zero Coupon Subordinated Retail Medium-Term Notes due 2028 and
. $40,010,845 Zero Coupon Subordinated Retail Medium-Term Notes due 2028
Unless otherwise specified in the prospectus supplement, the term "Other Financial Obligations" means all obligations of the Company to make payment pursuant to the terms of financial instruments, such as:
(i) securities contracts and foreign currency exchange contracts,
(ii) derivative instruments, such as swap agreements (including interest rate and foreign exchange rate swap agreements), cap agreements, floor agreements, collar agreements, interest rate agreements, foreign exchange rate agreements, options, commodity futures contracts, commodity option contracts and
(iii) in the case of both (i) and (ii) above, similar financial instruments, other than (A) obligations on account of Senior Indebtedness and (B) obligations on account of indebtedness for money borrowed ranking on a parity with or subordinate to the Senior Subordinated Debt Securities. Unless otherwise specified in the prospectus supplement relating to the particular series of Senior Subordinated Debt Securities offered thereby, Entitled
Persons means any person who is entitled to payment pursuant to the terms of Other Financial Obligations. (Section 101 of the Senior Subordinated Indenture).
Indebtedness of the Company which is senior to the Senior Subordinated Debt Securities, at March 31, 2001, totaled approximately $2,077,157,020.
Indebtedness of the Company which ranks equally with the Senior Subordinated Debt Securities, at March 31, 2001, totaled approximately $2,996,192,018.
The Company's obligations under the Senior Subordinated Debt Securities shall rank equally in right of payment with each other and with the Existing Subordinated Indebtedness, subject to the obligations of the Holders of Senior Subordinated Debt Securities to pay over any Excess Proceeds to Entitled Persons in respect of Other Financial Obligations as provided in the Senior Subordinated Indenture.
The Senior Subordinated Indenture does not limit or prohibit the incurrence of additional Senior Indebtedness, which may include indebtedness that is senior to the Senior Subordinated Debt Securities, but subordinate to other obligations of the Company, including obligations of the Company in respect of Other Financial Obligations. The Senior Debt Securities, when issued, will constitute Senior Indebtedness. Junior Subordinated Debt Securities issued by the Company pursuant to the Junior Indenture will be subordinate in right of payment to the Senior Subordinated Debt Securities.
The prospectus supplement may further describe the provisions, if any, applicable to the subordination of the Senior Subordinated Debt Securities of a particular series.
Global Debt Securities
Unless otherwise stated in a prospectus supplement, each series of Debt Securities will be represented by fully registered global certificates issued as global Debt Securities to be deposited with a depositary with respect to that series, instead of paper certificates issued to each individual owner. The depositary arrangements that will apply, including the manner in which principal of and premium, if any, and interest on any series of Debt Securities and other payments will be payable are discussed in more detail under the heading "Book- Entry Issuance."
Defeasance and Covenant Defeasance
The Indentures provide, if such provision is made applicable to the Debt Securities of any series pursuant to Section 301 of the Applicable Indenture (which will be indicated in the prospectus supplement applicable thereto), that the Company may elect to apply either of two types of defeasance provisions to such Debt Securities. It may elect either:
(A) "Legal defeasance" which means the Company elects to defease and be discharged from any and all obligations with respect to such Debt Securities (including, in the case of Senior Subordinated Debt Securities, the provisions described under "--Subordination of Senior Subordinated Debt Securities" and except for the obligations to register the transfer or exchange of such Debt Securities, to replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to maintain an office or agency in respect of the Debt Securities and to hold moneys for payment in trust.
or
(B) "Covenant defeasance" which means that the Company elects to be
released from its obligations with respect to such Debt Securities under Section
1005 and Section 1006 of the Senior Indenture and Section 1005 of the Senior
Subordinated Indenture (and any other sections applicable to such Debt
Securities that are determined pursuant to Section 301 to be subject to covenant
defeasance) and the consequences of the occurrence of an event of default
specified in, in the case of Senior Debt Securities, Section 501(4) of the
Senior Indenture, and in the case of Senior Subordinated Debt Securities,
Section 503(C) of the Senior Subordinated Indenture (with respect to Section
1005 and Section 1006 of the Senior Indenture and Section 1005 of the Senior
Subordinated Indenture and any other sections applicable to such Debt Securities
that are determined pursuant to Section 301 to be subject to covenant
defeasance), or, in the case of Senior Debt Securities, Section 501(5) of the
Senior Indenture, and in the case of Senior Subordinated Debt Securities,
Section 503(D) of the Senior Subordinated Indenture (with respect to Section
1005 of the Indentures containing the covenant to pay taxes and other claims,
Section 1006 of the Senior Indenture containing the restrictions described under
"--Limitation on Disposition of Stock of the Bank") and Sections 501(4) and
501(5) of the Senior Indenture and Sections 503(C) and 503(D) of the Senior
Subordinated Indenture containing the provisions described under "--Defaults"
relating to covenant defaults and cross-defaults, respectively, and, in the case
of Subordinated Debt Securities, the provisions described under "--Subordination
of Senior Subordinated Debt Securities."
Legal defeasance or covenant defeasance, as applicable, will only occur upon the deposit with the applicable Trustee (or other qualifying trustee), in trust for such purpose, of money and/or U.S. Government Obligations which through the payment of principal and interest in accordance with their terms will provide money, in an amount sufficient, without reinvestment, to pay the principal of (and premium, if any) and interest on such Debt Securities to maturity or redemption, as the case may be, and any mandatory sinking fund or analogous payments thereon. As a condition to legal defeasance or covenant defeasance, the Company must deliver to the applicable Trustee an Opinion of Counsel (as specified in the Applicable Indenture) to the effect that the Holders of such Debt Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance or covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance or covenant defeasance had not occurred. Such opinion, in the case of legal defeasance, must refer to and be based upon a ruling of the Internal Revenue Service issued to the Company or published as a revenue ruling or upon a change in applicable Federal income tax law, in any such case after the date of the Applicable Indenture.
Under current Federal income tax law, legal defeasance would likely be treated as a taxable exchange of such Debt Securities for interests in the defeasance trust. As a consequence a Holder would recognize gain or loss equal to the difference between the Holder's cost or other tax basis for such Debt Securities and the value of the Holder's proportionate interest in the defeasance trust, and thereafter would be required to include in income a proportionate share of the income, gain and loss of the defeasance trust. Under current Federal income tax law, covenant defeasance would ordinarily not be treated as a taxable exchange of such Debt Securities. Purchasers of such Debt Securities should consult their own advisors with respect to the tax consequences to them of such defeasance and covenant defeasance, including the applicability and effect of tax laws other than the Federal income tax law.
The Company may exercise its legal defeasance option with respect to such Debt Securities notwithstanding its prior exercise of its covenant defeasance option. If the Company exercises its legal defeasance option, payment of such Debt Securities may not be accelerated because of an Event of Default. If the Company exercises its covenant defeasance option, payment of such Debt Securities may not be accelerated by reference to the covenants noted in the description of covenant defeasance. However, if such an acceleration were to occur, the realizable value at the acceleration date of the money and U.S. Government Obligations in the defeasance trust could be less than the principal and interest then due on such Debt Securities, in that the required deposit in the defeasance trust is based upon scheduled cash flows rather than market value, which will vary depending upon interest rates and other factors. (Article 13 and Article 14 of the Senior Indenture and the Senior Subordinated Indenture, respectively).
The prospectus supplement may further describe the provisions, if any, applicable to legal defeasance or covenant defeasance with respect to the Debt Securities of a particular series.
Limitation on Disposition of Stock of the Bank
The terms "Intermediate Subsidiary" and "Voting Stock," both of which are used below, are defined in the Senior Indenture.
Intermediate Subsidiary means a subsidiary (i) that is organized under the laws of any domestic jurisdiction and (ii) of which all the shares of each class of capital stock issued and outstanding, and all securities convertible into, and options, warrants and rights to subscribe for or purchase shares of, such capital stock, are owned directly by the Company, free and clear of any security interest.
Voting Stock means stock of the class or classes having a general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of a corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
The Senior Indenture contains a covenant by the Company that, so long as any of the Senior Debt Securities issued pursuant to it are outstanding, but subject to the rights of the Company in connection with its consolidation with or merger into another Person or a sale of the Company's assets, neither the Company nor any Intermediate Subsidiary will sell, assign, transfer, grant a security interest in or otherwise dispose of any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Bank (except to the Company or an Intermediate Subsidiary), nor will the Company or any Intermediate Subsidiary permit the Bank to issue any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Bank, unless (a) any such sale, assignment, transfer, grant of a security interest or other disposition is made for fair market value, as determined by the Board of Directors of the Company or any Intermediate Subsidiary, and (b) the Company and any one or more Intermediate Subsidiaries will collectively own at least 80% of the issued and outstanding Voting Stock of the Bank (or any successor to the Bank) free and clear of any security interest after giving effect to such transaction. The foregoing, however, shall not preclude the Bank from being consolidated with or merged into another domestic banking corporation, if after such merger or consolidation the Company, any successor thereto in a permissible merger, or any one or more Intermediate Subsidiaries own at least 80% of the Voting Stock of the resulting bank and immediately after giving effect thereto no Event of Default and no event which would become an Event of Default shall have occurred and be continuing. The Company will further covenant that it will not permit any Intermediate Subsidiary that owns any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Bank to cease to be an Intermediate Subsidiary. (Section 1006 of the Senior Indenture).
Defaults
The Senior Indenture
The Senior Indenture defines an Event of Default with respect to any series of Senior Debt Securities as any one of the following events:
(a) default for 30 days in payment of interest on any Senior Debt Security of that series;
(b) default in payment of principal of (or premium, if any), on any Senior Debt Security of that series at Maturity;
(c) default in the deposit of any sinking fund payment, when and as due by the terms of a Senior Debt Security of that series;
(d) failure by the Company for 60 days after due notice in performance or the breach of any covenant or warranty in the Senior Indenture or any Senior Debt Security of a particular series (other than a covenant or warranty included in the Senior Indenture solely for the benefit of a series of Senior Debt Securities other than that series);
(e) (i) failure by the Company or the Bank to pay indebtedness for money borrowed (including Debt Securities of other series) in an aggregate principal amount exceeding $25,000,000 at the later of final maturity or upon the expiration of any applicable period of grace with respect to such principal amount; or (ii) acceleration of the maturity of any indebtedness of the Company or the Bank for borrowed money, in excess of $25,000,000, if such failure to pay or acceleration results from a default under the instrument giving rise to, or securing, such indebtedness and is not annulled within 30 days after due notice, unless such default is contested in good faith by appropriate proceedings;
(f) certain events of bankruptcy, insolvency or reorganization of the Company or the Bank; and
(g) any other Event of Default provided with respect to Senior Debt Securities of that series. (Section 501).
If an Event of Default occurs with respect to any series of Senior Debt Securities, the trustee or holders of 25% of the outstanding principal amount of that series may declare the principal amount (or, if the Senior Debt Securities of that series are Original Issue Discount Senior Debt Securities, such portion of the principal amount as may be specified in the terms of that series) of the series immediately payable (provided that no such declaration is required upon certain events of bankruptcy). As explained in more detail in Sections 502 and 513 of the Senior Indenture, holders of a majority of the principal amount may rescind this action.
The Senior Subordinated Indenture
The Senior Subordinated Indenture defines an Event of Default with respect to any series of Senior Subordinated Debt Securities as being certain events involving the bankruptcy, insolvency or reorganization of the Company. (Section 501).
The Senior Subordinated Indenture defines a Default with respect to Senior Subordinated Debt Securities of any series as any one of the following events:
. an Event of Default;
. default for 30 days in payment of interest on any Senior Subordinated Debt Securities of that series;
. default in payment of principal of (or premium, if any), on any Senior Subordinated Debt Security of that series at Maturity;
. default in the deposit of any sinking fund payment, when and as due by the terms of a Senior Subordinated Debt Security of that series;
. failure by the Company for 60 days after due notice in performance or the breach of any covenant or warranty in the Senior Subordinated Indenture or any Senior Subordinated Debt Security of a particular series (other than a covenant or warranty included in the Senior Subordinated Indenture solely for the benefit of another series of Senior Subordinated Debt Securities);
. (i) failure by the Company or the Bank to pay indebtedness for money borrowed (including Subordinated Debt Securities or other series) in an aggregate principal amount exceeding $25,000,000 at the later of final maturity or upon the expiration of any applicable grace period with respect to such principal amount: or (ii) acceleration of the maturity of any indebtedness of the Company or the Bank for borrowed money in excess of $25,000,000, if such failure to pay or acceleration results from a default under the instrument giving rise to, or securing, such indebtedness and is not annulled within 30 days after due notice, unless such default is contested in good faith by appropriate proceedings; and
. any other Default with respect to Senior Subordinated Debt Securities of that series.
In case a Default shall occur and be continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by appropriate judicial proceedings as the Trustee deems most effectual. In case of a Default (including a default in the payment of principal or interest) there is no right to declare the principal amount of the series immediately payable.
If an Event of Default occurs with respect to any series of Senior Subordinated Debt Securities, the trustee or holders of 25% of the outstanding principal amount of that series may declare the principal amount of the series immediately payable (provided that no such declaration is required upon certain events of bankruptcy). However, as explained in more detail below holders of a majority of the principal amount may rescind this action.
Upon certain conditions such declaration may be annulled and past defaults (except, unless theretofore cured, a default in payment of principal of (or premium, if any), or interest on the Senior Subordinated Debt Securities of that series and certain other specified defaults) may be waived by the Holders of a majority in principal amount of the
outstanding Senior Subordinated Debt Securities of that series on behalf of the Holders of all Senior Subordinated Debt Securities of that series. (Sections 502 and 513).
Senior and Senior Subordinated Indentures
The Indentures provide that the applicable Trustee will, within 90 days after the occurrence of a default with respect to Debt Securities of any series at the time outstanding with respect to which it is Trustee, give to the Holders of the outstanding Debt Securities of that series notice of such default known to it if uncured or not waived, provided that, except in the case of default in the payment of principal of (or premium, if any), or interest on any Debt Security of that series, or in the payment of any sinking fund installment which is provided, such Trustee will be protected in withholding such notice if such Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of the outstanding Debt Securities of such series; and, provided further, that such notice shall not be given until 60 days after the occurrence of a default with respect to outstanding Debt Securities of any series in the performance or breach of a covenant in the Applicable Indenture other than for the payment of the principal of (or premium, if any), or interest on any Debt Security of such series or the deposit of any sinking fund payment with respect to the Debt Securities of such series. The term default with respect to any series of outstanding Debt Securities for the purpose only of this provision means the happening of any of the Events of Default or, in the case of the Senior Subordinated Indenture, Defaults, specified in the Applicable Indenture and relating to such series of outstanding Debt Securities. (Section 602).
The Indentures provide that, subject to the duty of the Trustees during a default to act with the required standard of care, the Trustees will not be under an obligation to exercise any of their rights or powers under the Indentures at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustees reasonable security or indemnity. (Sections 601 and 603). The Indentures provide that the Holders of a majority in principal amount of outstanding Debt Securities of any series may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for that series, or exercising any trust or other power conferred on such Trustee, provided that such Trustee may decline to act if such direction is contrary to law or the applicable Indenture and may take any other action deemed proper which is not inconsistent with such direction. (Section 512).
The Indentures include a covenant that the Company will file annually with the Trustees a certificate of no default or specifying any default that exists. (Section 1007 of the Senior Indenture and Section 1004 of the Senior Subordinated Indenture).
Modification of the Indentures
From time to time the Company and the applicable Trustee may, without the consent of the holders of any series of Debt Securities, amend, waive or supplement each Indenture for specified purposes, including, among other things, curing ambiguities or inconsistencies (provided that any such action does not materially adversely affect the interest of the holders of any series of Debt Securities).
Modification and amendments of each Indenture may be made by the Company and the Trustee under the applicable Indenture, only with the consent of the Holders of not less than a majority in principal amount of each series of outstanding Debt Securities issued under such Indenture and affected thereby, by executing supplemental indentures adding any provisions to or changing or eliminating any of the provisions of the Applicable Indenture or modifying the rights of the Holders of outstanding Debt Securities of such series (including the modification of the subordination provisions in a manner adverse to Holders in the case of the Senior Subordinated Indenture), except that no such supplemental indenture may:
(a) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Debt Security;
(b) reduce the principal amount of, or any premium or the rate of interest on, any Debt Security;
(c) reduce the amount of principal of an Original Issue Discount Security payable upon acceleration of the Maturity thereof,
(d) adversely affect any right of repayment at the option of the Holder of any Debt Security;
(e) reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
(f) change the place or currency of payment of principal of (or premium, if any) or interest on, any Debt Security;
(g) impair the right to institute suit for the enforcement of any payment on or with respect to any Debt Security on or after the Stated Maturity (or, in the case of redemption, on or after the Redemption Date);
(h) reduce the percentage in principal amount of outstanding Debt Securities of any series, the consent of the Holders of which is required for modification or amendment of the Applicable Indenture, for waiver of compliance with certain provisions of the Applicable Indenture or for waiver of certain covenant defaults;
(i) modify the provisions of the Applicable Indenture relating to modification and amendment of the Applicable Indenture; or
(j) in the case of the Senior Subordinated Indenture, modify the subordination provisions adverse to the holders of Senior Indebtedness, in each case, without such holders' consent.
The Indentures provide, however, that each of the amendments and modifications
listed in clauses (a) through (i) and, in the case of the Senior Subordinated
Indenture, (j) above may be made with the consent of the Holder of each
outstanding Security affected thereby. (Section 902 of the Indentures and
Section 907 of the Senior Subordinated Indenture).
Consolidation, Merger and Sale of Assets
The Company, without the consent of the Holders of any of the Debt Securities under either Indenture, may consolidate with or merge into any other Person or convey, transfer or lease its assets substantially as an entirety to any Person, or, in the case of the Senior Subordinated Indenture, permit any Person to consolidate with or merge into the Company or convey, transfer or lease its properties substantially as an entirety to the Company, provided that:
(i) if applicable, the successor is a Person, organized under the laws of any domestic jurisdiction;
(ii) the successor Person, if other than the Company, assumes the Company's obligations on the Debt Securities and under the Indentures;
(iii) after giving effect to the transaction no Event of Default, or, in the case of the Senior Subordinated Indenture, Default, and no event which, after notice or lapse of time, would become an Event of Default, or, in the case of the Senior Subordinated Indenture, Default, shall have occurred and be continuing; and
(iv) certain other conditions are met. (Section 801).
Upon any consolidation or merger into any other Person or any conveyance, transfer or lease of the Company's assets substantially as an entirety to any Person, the successor Person shall succeed to, and be substituted for, the Company under the Indentures, and the Company, except in the case of a lease, shall be relieved of all obligations and covenants under the Indentures and the Debt Securities to the extent it was the predecessor Person.
Outstanding Debt Securities
The Indentures provide that, in determining whether the Holders of the requisite principal amount of outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver under the Applicable Indenture:
(i) the portion of the principal amount of an Original Issue Discount Debt Security that shall be deemed to be outstanding for such purposes shall be that portion of the principal amount thereof that would be due and payable as of the date of such determination upon the declaration of acceleration of the maturity thereof upon the occurrence and continuance of an Event of Default,
(ii) the portion of the principal amount of a Debt Security denominated in a foreign currency or currencies that shall be deemed to be outstanding for such purpose shall be the U.S. dollar equivalent, determined on the date of original issuance of such Debt Security, of the principal amount of such Debt Security (or, in the case of an Original Issue Discount Debt Security, the U.S. dollar equivalent on the date of original issuance of such Debt Security of the amount determined as provided in (i) above), and
(iii) Debt Securities owned by the Company or any of its Affiliates shall not be deemed to be outstanding. (Section 101).
Concerning the Trustees
Bankers Trust Company and Chase Manhattan Trust Company, National Association are the Trustees under the Senior Indenture and the Senior Subordinated Indenture, respectively. Chase Manhattan Trust Company, National Association is also trustee under the Senior Subordinated Indenture for the Company's:
. 6.50% Subordinated Notes due December 2003
. 8.50% Subordinated Notes due December 2004
. 7.30% Subordinated Notes due 2009
. 7.5% Subordinated Retail Medium-Term Notes due August 2010
. 7.54% Subordinated Retail Medium-Term Notes due August 2010
. 7.00% Subordinated Retail Medium-Term Notes due November 2010
. 7.125% Subordinated Retail Medium-Term Notes due November 2015
. 6.60% Subordinated Retail Medium-Term Notes due February 2011
. 6.70% Subordinated Retail Medium-Term Notes due February 2011
. 6.70% Subordinated Retail Medium-Term Notes due February 2011
. 6.75% Subordinated Retail Medium-Term Notes due March 2011
. 7.00% Subordinated Retail Medium-Term Notes due March 2011
. 7.00% Subordinated Retail Medium-Term Notes due March 2011
. 7.10% Subordinated Retail Medium-Term Notes due March 2011
. 6.75% Subordinated Retail Medium-Term Notes due February 2018
. 6.50% Subordinated Retail Medium-Term Notes due February 2013
. Zero Coupon Subordinated Retail Medium-Term Notes due March 2028
. Zero Coupon Subordinated Retail Medium-Term Notes due March 2028
. 6.57% Subordinated Medium-Term Notes Series C due May 2013
. 6.50% Subordinated Medium-Term Notes Series C due July 2013
. 6.50% Subordinated Medium-Term Notes Series C due September 2013
. 6.25% Subordinated Medium-Term Notes Series C due September 2013
. 6.20% Subordinated Medium-Term Notes Series C due October 2018
. 6.10% Subordinated Medium-Term Notes Series C due February 2014
. 6.25% Subordinated Medium-Term Notes Series C due February 2014
. 6.50% Subordinated Medium-Term Notes Series C due March 2014
. Zero Coupon Subordinated Medium-Term Notes Series C due April 2014
. Zero Coupon Subordinated Medium-Term Notes Series C due April 2014
. Zero Coupon Subordinated Medium-Term Notes Series C due April 2014
. 6.50% Subordinated Medium-Term Notes Series C due May 2014
. 6.72% Subordinated Medium-Term Notes Series C due May 2019
. 7.00% Subordinated Medium-Term Notes Series C June 2009
. 7.55% Senior Subordinated Medium-Term Notes Series D due August 2009
. 7.20% Senior Subordinated Medium-Term Notes Series D due August 2009
. 7.75% Senior Subordinated Medium-Term Notes Series D due September 2014
. 7.125% Senior Subordinated Medium-Term Notes Series D due September 2014
. 7.75% Senior Subordinated Medium-Term Notes Series D due September 2014
. 7.05% Senior Subordinated Medium-Term Notes Series D due October 2009
. 7.75% Senior Subordinated Medium-Term Notes Series D due November 2014
. 7.10% Senior Subordinated Medium-Term Notes Series D due November 2009
. 7.30% Senior Subordinated Medium-Term Notes Series D due November 2014
. 7.625% Senior Subordinated Medium-Term Notes Series D due January 2010
. 8.00% Senior Subordinated Medium-Term Notes Series D due June 2015
. 7.60% Senior Subordinated Medium-Term Notes Series D due July 2010
. 7.60% Senior Subordinated Medium-Term Notes Series D due July 2010
. 7.40% Senior Subordinated Medium-Term Notes Series D due August 2010
. 7.75% Senior Subordinated Medium-Term Notes Series D due September 2015
. 7.50% Senior Subordinated Medium-Term Notes Series D due September 2010
. 7.75% Senior Subordinated Medium-Term Notes Series D due September 2015
. 7.60% Senior Subordinated Medium-Term Notes Series D due October 2015
. 7.75% Senior Subordinated Medium-Term Notes Series D due October 2015
. 7.53% Senior Subordinated Medium-Term Notes Series D due October 2015
. 6.625% Senior Subordinated Medium-Term Note Series D due 2016
. 7.00% Senior Subordinated Medium-Term Note Series D due 2016
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
Summary
The following description of the terms of the Junior Subordinated Debt Securities sets forth certain general terms and provisions. The particular terms of any Junior Subordinated Debt Securities will be contained in a prospectus supplement. The prospectus supplement will describe the following terms of the Junior Subordinated Debt Securities:
(1) the title of the Junior Subordinated Debt Securities;
(2) any limit upon the aggregate principal amount of the Junior Subordinated Debt Securities;
(3) the date or dates on which the principal of the Junior Subordinated Debt Securities is payable (the "Stated Maturity") or the method of determination thereof and the Company's right to shorten or extend such date or dates;
(4) the rate or rates, if any, at which the Junior Subordinated Debt Securities shall bear interest;
(5) the dates on which any such interest shall be payable (the "Interest Payment Dates");
(6) the right, if any, of the Company to defer or extend an Interest Payment Date;
(7) the record dates for any interest payable on any Interest Payment Date or the method by which any of the foregoing shall be determined;
(8) the place or places where, subject to the terms of the Junior Indenture as described below under "--Payment and Paying Agents", the principal of and premium, if any, and interest on the Junior Subordinated Debt Securities will be payable and where, subject to the terms of the Junior Indenture as described below under "--Denominations, Registration and Transfer," the Junior Subordinated Debt Securities may be presented for registration of transfer or exchange and the place or places where notices and demands to or upon the Company in respect of the Junior Subordinated Debt Securities and the Junior Indentures may be made ("Place of Payment");
(9) any period or periods within which or date or dates on which, the price or prices at which and the terms and conditions upon which Junior Subordinated Debt Securities may be redeemed, in whole or in part, at the option of the Company or a holder thereof;
(10) the obligation or the right, if any, of the Company or a holder thereof to redeem, purchase or repay the Junior Subordinated Debt Securities and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which the Junior Subordinated Debt Securities shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation ;
(11) the denominations in which any Junior Subordinated Debt Securities shall be issuable if other than denominations of $25.00 and any integral multiple thereof;
(12) if other than in U.S. Dollars, the currency or currencies (including currency unit or units) in which the principal of (and premium, if any) and interest and Additional Interest, if any, on the Junior Subordinated Debt Securities shall be payable, or in which the Junior Subordinated Debt Securities shall be denominated;
(13) any additions, modifications or deletions in the events of default under the Junior Indenture or covenants of the Company specified in the Junior Indenture with respect to the Junior Subordinated Debt Securities;
(14) if other than the principal amount thereof, the portion of the principal amount of Junior Subordinated Debt Securities that shall be payable upon declaration of acceleration of the maturity thereof;
(15) any additions or changes to the Junior Indenture with respect to a series of Junior Subordinated Debt Securities as shall be necessary to permit or facilitate the issuance of such series in bearer form, registerable or not registerable as to principal, and with or without interest coupons;
(16) any index or indices used to determine the amount of payments of principal of and premium, if any, on the Junior Subordinated Debt Securities and the manner in which such amounts will be determined;
(17) the terms and conditions relating to the issuance of a temporary Global Security representing all of the Junior Subordinated Debt Securities of such series and the exchange of such temporary Global Security for definitive Junior Subordinated Debt Securities of such series;
(18) subject to the terms described herein under "--Global Junior Subordinated Debt Securities", whether the Junior Subordinated Debt Securities of the series shall be represented by fully registered global certificates and, in such case, the depositary for such global certificates, which Depositary shall be a clearing agency registered under the Exchange Act;
(19) the appointment of any paying agent or agents;
(20) the terms and conditions of any obligation or right of the Company or a holder to convert or exchange the Junior Subordinated Debt Securities into other Company securities;
(21) the form of Trust Agreement, Guarantee Agreement and Expense Agreement, if applicable;
(22) the relative degree, if any, to which such Junior Subordinated Debt Securities of the series shall be senior to or be subordinated to other series of such Junior Subordinated Debt Securities or other indebtedness of the Company in right of payment, whether such other series of Junior Subordinated Debt Securities or other indebtedness are outstanding or not; and
(23) any other terms of the Junior Subordinated Debt Securities not inconsistent with the provisions of the Junior Indenture.
Unless otherwise provided in the related prospectus supplement, the Junior Subordinated Debt Securities will be issued in global (book-entry) form to a BNY Trust. The Corresponding Junior Subordinated Debt Securities will be registered in the name of the Property Trustee who will hold the Corresponding Junior Subordinated Debt Securities for the benefit of the holders of the Trust Preferred Securities.
The Junior Subordinated Debt Securities are to be issued in one or more series under a Junior Subordinated Indenture, dated as of December 25, 1996, as supplemented from time to time (as so supplemented, the "Junior Indenture"), between the Company and Bank One, National Association (f/k/a The First National Bank of Chicago), as trustee (the "Junior Indenture Trustee").
The following summary of certain terms and provisions of the Junior Subordinated Debt Securities, Corresponding Junior Subordinated Debentures and the Junior Indenture, is not complete. For a complete description you should read the Junior Indenture. The Junior Indenture is incorporated as an exhibit to the registration statement of which this prospectus is a part by reference to the Company's Registration Statement on
Form S-3 (Nos. 333-40837, 333-40837-01, 333-40837-02 and 333-40837-03). The Junior Indenture is qualified under the Trust Indenture Act.
Wherever we refer to particular sections, articles or defined terms of the Junior Indenture we are incorporating those sections, articles or defined terms into this prospectus by reference. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Junior Indenture.
General
Each series of Junior Subordinated Debt Securities will rank equally with all other series of Junior Subordinated Debt Securities and will be unsecured and subordinate and junior in right of payment to the extent and in the manner set forth in the Junior Indenture to all Senior Debt of the Company, including the Senior Debt Securities and the Senior Subordinated Debt Securities. See "-- Subordination".
Indebtedness of the Company which is senior to the Junior Subordinated Debt Securities, at March 31, 2001, totaled approximately $5,073,349,038. This amount does not include indebtedness of subsidiaries of the Company. See also "The Company" and "Certain Regulatory Considerations" for a more detailed discussion.
Except as otherwise provided in the applicable prospectus supplement, the Junior Indenture does not limit the incurrence or issuance of other secured or unsecured debt of the Company, including Senior Debt, whether under the Junior Indenture, any other existing indenture or any other indenture that the Company may enter into in the future or otherwise.
The Junior Subordinated Debt Securities will be issuable in one or more series pursuant to an indenture supplemental to the Junior Indenture or a resolution of the Company's Board of Directors or a committee thereof.
Junior Subordinated Debt Securities may be sold at a substantial discount below their stated principal amount bearing no interest or interest at a rate which at the time of issuance is below market rates. Certain United States Federal income tax consequences and special considerations applicable to any such Junior Subordinated Debt Securities will be described in the applicable prospectus supplement.
If any index is used to determine the amount of payments of principal of, premium, if any, or interest on any series of Junior Subordinated Debt Securities, special United States Federal income tax, accounting and other considerations applicable thereto will be described in the applicable prospectus supplement.
The Junior Indenture does not limit the aggregate principal amount of the Junior Subordinated Debt Securities or of any particular series of Junior Subordinated Debt Securities that may be issued thereunder and provides that Junior Subordinated Debt Securities may be issued from time to time in series.
If the Junior Subordinated Debt Securities are denominated in whole or in part in any currency other than United States dollars, if the principal of (and premium, if any) or interest, if any, on the Junior Subordinated Debt Securities are to be payable at the election of the Company or a holder thereof, in a currency or currencies other than that in which such Junior Subordinated Debt Securities are to be payable, or if any index is used to determine the amount of payments of principal of, premium, if any, or interest on any series of the Junior Subordinated Debt Securities, special Federal income tax, accounting and other considerations applicable thereto will be described in the prospectus supplement relating thereto.
The Junior Indenture does not contain any provisions that would provide protection to holders of the Junior Subordinated Debt Securities against a sudden and dramatic decline in credit quality of the Company resulting from any highly leveraged transaction, takeover, merger, recapitalization or similar restructuring or change in control.
The Junior Indenture allows us to merge or consolidate with another company, or to sell all or substantially all of our assets to another company. If these events occur, the other company will be required to assume our responsibilities relating to the Junior Subordinated Debt Securities, and we will be released from all liabilities and obligations. See "Consolidation, Merger, Sale of Assets and Other Transactions" for a more detailed discussion.
The Junior Indenture provides that the Company and the Junior Indenture Trustee may change certain of our obligations or certain of your rights concerning the Junior Subordinated Debt Securities of that series. However, to change the amount or timing of principal, interest or other payments under the Junior Subordinated Debt Securities, every holder in the series must consent. See "Modification of the Junior Indenture" for a more detailed discussion.
Denominations, Registration and Transfer
Unless otherwise specified in the applicable prospectus supplement, the Junior Subordinated Debt Securities will be issuable only in registered form without coupons in denominations of $25.00 and any integral multiple thereof. See "Book Entry Issuance." Subject to restrictions relating to Junior Subordinated Debt Securities represented by global certificates, Junior Subordinated Debt Securities of any series will be exchangeable for other Junior Subordinated Debt Securities of the same issue and series, of any authorized denominations, of a like aggregate principal amount, of the same original issue date and stated maturity and bearing the same interest rate.
Subject to restrictions relating to Junior Subordinated Debt Securities represented by global certificates, Junior Subordinated Debt Securities may be presented for exchange as provided above, and may be presented for registration of transfer (with the form of transfer endorsed thereon, or a satisfactory written instrument of transfer, duly executed), at the office of the appropriate securities registrar or at the office of any transfer agent designated by the Company for such purpose with respect to any series of Junior Subordinated Debt Securities and referred to in the applicable prospectus supplement, without service charge and upon payment of any taxes and other governmental charges as described in the Junior Indenture. The Company will appoint the Junior Indenture Trustee as securities registrar under the Junior Indenture. If the applicable prospectus supplement refers to any transfer agents (in addition to the securities registrar) initially designated by the Company with respect to any series of Junior Subordinated Debt Securities, the Company may at any time rescind the designation of any such transfer agent or approve a change in the location through which any such transfer agent acts, provided that the Company maintains a transfer agent in each place of payment for such series. The Company may at any time designate additional transfer agents with respect to any series of Junior Subordinated Debt Securities.
In the event of any redemption, neither the Company nor the Junior Indenture Trustee shall be required to (i) issue, register the transfer of or exchange Junior Subordinated Debt Securities of any series during the period beginning at the opening of business 15 days before the day of selection for redemption of Junior Subordinated Debt Securities of that series and ending at the close of business on the day of mailing of the relevant notice of redemption or (ii) transfer or exchange any Junior Subordinated Debt Securities so selected for redemption, except, in the case of any Junior Subordinated Debt Securities being redeemed in part, any portion thereof not to be redeemed.
Global Junior Subordinated Debt Securities
Unless otherwise stated in a prospectus supplement or unless issued to a BNY Trust as Corresponding Junior Subordinated Debentures each series of the Junior Subordinated Debt Securities will be represented by fully registered global certificates issued as global Junior Subordinated Debt Securities to be deposited with a depositary with respect to that series instead of paper certificates issued to each individual owner. The depositary arrangements that will apply, including the manner in which principal of and premium, if any, and interest on Junior Subordinated Debt Securities and other payments will be payable are discussed in more detail under the heading "Book-Entry Issuance."
Payment and Paying Agents
Unless otherwise indicated in the applicable prospectus supplement, payment of principal of (and premium, if any) and any interest on Junior Subordinated Debt Securities will be made at the office of the Junior Indenture Trustee in the City of New York or at the office of such paying agent or paying agents as the Company may designate from time to time, except that at the option of the Company payment of any interest may be made (i) except in the case of Junior Subordinated Debt Securities represented by global certificates or issued to a BNY Trust, by check mailed to the address of the Person entitled thereto as such address shall appear in the securities register or (ii) by transfer to an account maintained by the person entitled thereto as specified in the securities
register, provided that proper transfer instructions have been received by the Regular Record Date. Unless otherwise indicated in the applicable prospectus supplement, payment of any interest on Junior Subordinated Debt Securities will be made to the person in whose name such Junior Subordinated Debenture is registered at the close of business on the Regular Record Date for such interest, except in the case of Defaulted Interest. The Company may at any time designate additional Paying Agents or rescind the designation of any paying agent; however the Company will at all times be required to maintain a paying agent in each place of payment for each series of Junior Subordinated Debt Securities.
Any moneys deposited with the Junior Indenture Trustee or any paying agent, or then held by the Company in trust, for the payment of the principal of (and premium, if any) or interest on any Junior Subordinated Debenture and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall, at the request of the Company, be repaid to the Company and the holder of such Junior Subordinated Debenture shall thereafter look, as a general unsecured creditor, only to the Company for payment thereof.
Option to Defer Interest Payments
If provided in the applicable prospectus supplement, so long as no
Debenture Event of Default has occurred and is continuing, the Company will have
the right at any time and from time to time during the term of any series of
Junior Subordinated Debt Securities to defer payment of interest for up to such
number of consecutive interest payment periods as may be specified in the
applicable prospectus supplement (each, an "Extension Period"), subject to the
terms, conditions and covenants, if any, specified in such prospectus
supplement, provided that such Extension Period may not extend beyond the Stated
Maturity of such series of Junior Subordinated Debt Securities. Certain United
States Federal income tax consequences and special considerations applicable to
any such Junior Subordinated Debt Securities will be described in the applicable
prospectus supplement. As a consequence of any such deferral, Distributions on
the Related Trust Preferred Securities would be deferred (but would continue to
accumulate additional Distributions thereon at the rate per annum set forth in
the prospectus supplement for such Trust Preferred Securities) by the BNY Trust
of such Trust Preferred Securities during any such Extension Period. During any
such Extension Period, the Company may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's capital stock or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company that rank on a parity in all respects with or
junior in interest to the Corresponding Junior Subordinated Debt Securities
(other than (a) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of one or more
employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with the
issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of any exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Company's capital stock or of any class or series of the
Company's indebtedness for any class or series of the Company's capital stock,
(c) the purchase of fractional interests in shares of the Company's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholder's rights plan, or the issuance of rights, stock
or other property under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks on a parity with or junior to
such stock). Prior to the termination of any such applicable Extension Period,
the Company may further defer the payment of interest.
This covenant will also apply if:
(i) The Company has actual knowledge of an event that with the giving of notice or the lapse of time, or both, would constitute an Event of Default under the Junior Indenture with respect to such Junior Subordinated Debt Securities and the Company has not taken reasonable steps to cure the event; and
(ii) if such Junior Subordinated Debt Securities are held by a BNY Trust, the Company is in default with respect to its payment of any obligations under the Guarantee related to the Related Trust Preferred Securities.
Redemption
Unless otherwise indicated in the applicable prospectus supplement, Junior Subordinated Debt Securities will not be subject to any sinking fund.
Unless otherwise indicated in the applicable prospectus supplement, the Company may, at its option and subject to receipt of prior approval by the Federal Reserve Board if such approval is then required under applicable capital guidelines or policies, redeem the Junior Subordinated Debt Securities of any series in whole at any time or in part from time to time. If the Junior Subordinated Debt Securities of any series are so redeemable only on or after a specified date or upon the satisfaction of additional conditions, the applicable prospectus supplement will specify such date or describe such conditions. Unless otherwise indicated in the applicable prospectus supplement, Junior Subordinated Debt Securities in denominations larger than $25.00 may be redeemed in part but only in integral multiples of $25.00. Except as otherwise specified in the applicable prospectus supplement, the redemption price for any Junior Subordinated Debenture so redeemed shall equal any accrued and unpaid interest (including Additional Interest) thereon to the redemption date, plus 100% of the principal amount thereof.
Except as otherwise specified in the applicable prospectus supplement, if a Tax Event in respect of a series of Junior Subordinated Debt Securities or a Capital Treatment Event shall occur and be continuing, the Company may, at its option and subject to receipt of prior approval by the Federal Reserve Board if such approval is then required under applicable capital guidelines or policies, redeem such series of Junior Subordinated Debt Securities in whole (but not in part) at any time within 90 days following the occurrence of such Tax Event or Capital Treatment Event, at a redemption price equal to 100% of the principal amount of such Junior Subordinated Debt Securities then outstanding plus accrued and unpaid interest to the date fixed for redemption, except as otherwise specified in the applicable prospectus supplement.
"Tax Event" means the receipt by a BNY Trust or the Company of an opinion of counsel experienced in such matters to the effect that, as a result of any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or as a result of any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement or decision is announced on or after the date of issuance of the related Trust Preferred Securities under the Trust Agreement, there is more than an insubstantial risk that (i) such BNY Trust is, or will be within 90 days of the date of such opinion, subject to United States Federal income tax with respect to income received or accrued on the corresponding series of Corresponding Junior Subordinated Debt Securities, (ii) interest payable by the Company on such series of Corresponding Junior Subordinated Debt Securities is not, or within 90 days of the date of such opinion, will not be, deductible by the Company, in whole or in part, for United States Federal income tax purposes, or (iii) such BNY Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges.
A "Capital Treatment Event" means the reasonable determination by the Company that, as a result of the occurrence of any amendment to, or change (including any announced prospective change) in, the laws (or any rules or regulations thereunder) of the United States or any political subdivision thereof or therein, or as a result of any official or administrative pronouncement or action or judicial decision interpreting or applying such laws, rules or regulations, which amendment or change is effective or which pronouncement, action or decision is announced on or after the date of issuance of the related Trust Preferred Securities, there is more than an insubstantial risk that the Company will not be entitled to treat an amount equal to the aggregate Liquidation Amount of the Trust Preferred Securities as "Tier 1 Capital" (or the then equivalent thereof) for purposes of the capital adequacy guidelines of the Federal Reserve, as then in effect and applicable to the Company.
Notice of any redemption will be mailed at least 45 days but not more than 75 days before the redemption date to each Holder of Junior Subordinated Debt Securities to be redeemed at its registered address. Unless the Company defaults in payment of the redemption price, on and after the redemption date interest shall cease to accrue on such Junior Subordinated Debt Securities or portions thereof called for redemption.
Modification of the Junior Indenture
From time to time the Company and the Junior Indenture Trustee may, without
the consent of the holders of any series of Junior Subordinated Debt Securities,
amend, waive or supplement the Junior Indenture for specified purposes,
including, among other things, curing ambiguities, defects or inconsistencies
(provided that any such action does not materially adversely affect the interest
of the holders of any series of Junior Subordinated Debt Securities or, in the
case of Corresponding Junior Subordinated Debt Securities, the holders of the
Related Trust Preferred Securities so long as they remain outstanding) and
qualifying, or maintaining the qualification of, the Junior Indenture under the
Trust Indenture Act. The Junior Indenture contains provisions permitting the
Company and the Junior Indenture Trustee, with the consent of the holders of not
less than a majority in principal amount of each outstanding series of Junior
Subordinated Debt Securities affected, to modify the Junior Indenture in a
manner affecting adversely the rights of the holders of such series of the
Junior Subordinated Debt Securities in any material respect; provided, that no
such modification may, without the consent of the holder of each outstanding
Junior Subordinated Debt Security so affected, (i) change the Stated Maturity of
any series of Junior Subordinated Debt Securities (except as otherwise specified
in the applicable prospectus supplement), or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon or
(ii) reduce the percentage of principal amount of Junior Subordinated Debt
Securities of any series, the holders of which are required to consent to any
such modification of the Junior Indenture, provided that, in the case of
Corresponding Junior Subordinated Debt Securities, so long as any of the Related
Trust Preferred Securities remain outstanding, (a) no such modification may be
made that adversely affects the holders of such Trust Preferred Securities in
any material respect, and no termination of the Junior Indenture may occur, and
no waiver of any event of default or compliance with any covenant under the
Junior Indenture may be effective, without the prior consent of the holders of
at least a majority of the aggregate Liquidation Amount of all outstanding
Related Trust Preferred Securities affected unless and until the principal of
the Corresponding Junior Subordinated Debt Securities and all accrued and unpaid
interest thereon have been paid in full and certain other conditions have been
satisfied and (b) where a consent under the Junior Indenture would require the
consent of each holder of Corresponding Junior Subordinated Debt Securities, no
such consent will be given by the Property Trustee without the prior consent of
each holder of Related Trust Preferred Securities.
In addition, the Company and the Junior Indenture Trustee may execute, without the consent of any holder of Junior Subordinated Debt Securities, any supplemental Junior Indenture for the purpose of creating any new series of Junior Subordinated Debt Securities.
Junior Subordinated Debt Security Events of Default
The Junior Indenture provides that any one or more of the following described events with respect to a series of Junior Subordinated Debt Securities that has occurred and is continuing constitutes a "Debenture Event of Default" with respect to such series of Junior Subordinated Debt Securities:
(i) failure for 30 days to pay any interest on such series of Junior Subordinated Debt Securities, including any Additional Interest in respect thereof, when due (subject to the deferral of any interest payment in the case of an Extension Period);
(ii) failure to pay any principal or premium, if any, on such series of Junior Subordinated Debt Securities when due whether at maturity or upon redemption;
(iii) failure to observe or perform any other covenants contained in the indenture for 90 days after written notice to the Company from the Junior Indenture Trustee or the holders of at least 25% in aggregate outstanding principal amount of such affected series of outstanding Junior Subordinated Debt Securities; or
(iv) certain events in bankruptcy, insolvency or reorganization of the Company.
The holders of a majority in aggregate outstanding principal amount of Junior Subordinated Debt Securities of each series affected have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Junior Indenture Trustee. The Junior Indenture Trustee or the holders of not less than 25% in aggregate outstanding principal amount of Junior Subordinated Debt Securities of each series affected may declare the principal (or, if the Junior Subordinated Debt Securities of such series are Discount Securities, such portion of
the principal amount as may be specified in a prospectus supplement) due and payable immediately upon a Debenture Event of Default, and, in the case of Corresponding Junior Subordinated Debt Securities, should the Junior Indenture Trustee or such holders of such Corresponding Junior Subordinated Debt Securities fail to make such declaration, the holders of at least 25% in aggregate Liquidation Amount of the Related Trust Preferred Securities shall have such right. The holders of a majority in aggregate outstanding principal amount of Junior Subordinated Debt Securities of each series affected may annul such declaration. In the case of Corresponding Junior Subordinated Debt Securities, should the holders of such Corresponding Junior Subordinated Debt Securities fail to annul such declaration and waive such default, the holders of a majority in aggregate Liquidation Amount of the Related Trust Preferred Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of each series of Junior Subordinated Debt Securities affected thereby may, on behalf of the holders of all the Junior Subordinated Debt Securities of such series, waive any default, except a default in the payment of principal or interest (including any Additional Interest) (unless such default has been cured and a sum sufficient to pay all matured installments of interest (including any Additional Interest) and principal due otherwise than by acceleration has been deposited with the Junior Indenture Trustee) or a default in respect of a covenant or provision which under the Junior Indenture cannot be modified or amended without the consent of the holder of each outstanding Junior Subordinated Debenture of such series. In the case of Corresponding Junior Subordinated Debt Securities, should the holders of such Corresponding Junior Subordinated Debt Securities fail to waive such default, the holders of a majority in aggregate Liquidation Amount of the Related Trust Preferred Securities shall have such right. The Company is required to file annually with the Junior Indenture Trustee a certificate as to whether or not the Company is in compliance with all the conditions and covenants applicable to it under the Junior Indenture.
In case a Debenture Event of Default shall occur and be continuing as to a series of Corresponding Junior Subordinated Debt Securities, the Property Trustee will have the right to declare the principal of and the interest on such Corresponding Junior Subordinated Debt Securities, and any other amounts payable under the Junior Indenture, to be forthwith due and payable and to enforce its other rights as a creditor with respect to such Corresponding Junior Subordinated Debt Securities.
Enforcement of Certain Rights by Holders of Trust Preferred Securities
If a Debenture Event of Default with respect to a series of Corresponding Junior Subordinated Debt Securities has occurred and is continuing and such event is attributable to the failure of the Company to pay interest or principal on such Corresponding Junior Subordinated Debt Securities on the date such interest or principal is due and payable, a holder of the Related Trust Preferred Securities may institute a legal proceeding directly against the Company for enforcement of payment to such holder of the principal of or interest (including any Additional Interest) on such Corresponding Junior Subordinated Debt Securities having a principal amount equal to the aggregate Liquidation Amount of the Related Trust Preferred Securities of such holder (a "Direct Action"). The Company may not amend the Junior Indenture to remove the foregoing right to bring a Direct Action without the prior written consent of the holders of all of the Related Trust Preferred Securities outstanding. If the right to bring a Direct Action is removed, the applicable BNY Trust may become subject to the reporting obligations under the Exchange Act. The Company shall have the right under the Junior Indenture to set-off any payment made to such holder of the Related Trust Preferred Securities by the Company in connection with a Direct Action.
The holders of such Related Trust Preferred Securities will not be able to exercise directly any remedies other than those set forth in the preceding paragraph available to the holders of the Junior Subordinated Debt Securities unless there shall have been an event of default under the Trust Agreement. See "Description of Trust Preferred Securities--Events of Default; Notice".
Consolidation, Merger, Sale of Assets and Other Transactions
The Junior Indenture provides that the Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and no Person shall consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless:
(i) in case the Company consolidates with or merges into another Person (and the Company is not the surviving Person) or conveys or transfers its properties and assets substantially as an entirety to any Person, the successor Person is organized under the laws of the United States or any state or the District of Columbia, and such successor Person expressly assumes the Company's obligations on the Junior Subordinated Debt Securities issued under the Junior Indenture;
(ii) immediately after giving effect to such transaction, no Debenture Event of Default, and no event which, after notice or lapse of time or both, would become a Debenture Event of Default, shall have occurred and be continuing; and
(iii) certain other conditions as prescribed by the Junior Indenture are met.
The general provisions of the Junior Indenture do not afford holders of the Junior Subordinated Debt Securities protection in the event of a highly leveraged transaction, takeover, merger, recapitalization or similar restructuring or change in control or other transaction involving the Company that may adversely affect holders of the Junior Subordinated Debt Securities.
Satisfaction and Discharge
The Junior Indenture provides that when, among other things, all Junior Subordinated Debt Securities not previously delivered to the Junior Indenture Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee, and the Company deposits or causes to be deposited with the Debenture Trustee funds, in trust, for the purpose and in an amount in the currency or currencies in which
the Junior Subordinated Debt Securities are payable sufficient to pay and discharge the entire indebtedness on the Junior Subordinated Debt Securities not previously delivered to the Junior Indenture Trustee for cancellation, for the principal (and premium, if any) and interest (including any Additional Interest) to the date of the deposit or to the Stated Maturity, as the case may be,
then the Junior Indenture will cease to be of further effect (except as to the Company's obligations to pay all other sums due pursuant to the Junior Indenture and to provide the officers' certificates and opinions of counsel described therein), and the Company will be deemed to have satisfied and discharged the Junior Indenture.
Defeasance and Covenant Defeasance
The Junior Indenture provides, if such provision is made applicable to the Junior Subordinated Debt Securities of any series (which will be indicated in the prospectus supplement applicable thereto), that the Company may elect either:
(A) to defease ("defeasance") and be discharged from any and all obligations with respect to such Junior Subordinated Debt Securities then outstanding (including the provisions described under "--Subordination" and except for the obligations to register the transfer or exchange of such Junior Subordinated Debt Securities, to replace temporary or mutilated, destroyed, lost or stolen Junior Subordinated Debt Securities, to maintain an office or agency in respect of the Junior Subordinated Debt Securities and to hold moneys for payment in trust) or
(B) to be released from its obligations with respect to such Junior Subordinated Debt Securities then outstanding under any sections of the Junior Indenture applicable to such Junior Subordinated Debt Securities that are subject to covenant defeasance ("covenant defeasance") upon the deposit with the Debenture Trustee (or other qualifying trustee), in trust for such purpose, of money, and/or U.S. Government Obligations which through the payment of principal and interest in accordance with their terms will provide money in an amount sufficient, without reinvestment, to pay the principal of (and premium, if any) and interest on such Junior Subordinated Debt Securities to maturity or redemption, as the case may be, and any mandatory sinking fund or analogous payments thereon.
As a condition to defeasance or covenant defeasance, the Company must deliver to the Debenture Trustee an Opinion of Counsel (as specified in the Junior Indenture) to the effect that the holders of such Junior Subordinated Debt Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance or covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had not occurred. Such opinion, in the case of defeasance under clause (A) above, must refer to and be based upon a ruling of the Internal Revenue Service issued to the Company or published as a revenue ruling or upon a change in applicable Federal income tax law, in any such case after the date of the Junior Indenture.
Under current Federal income tax law, defeasance would likely be treated as a taxable exchange of such Junior Subordinated Debt Securities for interests in the defeasance trust. As a consequence a holder would recognize gain or loss equal to the difference between the holder's cost or other tax basis for such Junior Subordinated Debt Securities and the value of the holder's proportionate interest in the defeasance trust, and thereafter would be required to include in income a proportionate share of the income, gain and loss of the defeasance trust. Under current Federal income tax law, covenant defeasance would ordinarily not be treated as a taxable exchange of such Junior Subordinated Debt Securities. Purchasers of such Junior Subordinated Debt Securities should consult their own advisors with respect to the tax consequences to them of such defeasance and covenant defeasance, including the applicability and effect of tax laws other than the Federal income tax law.
The Company may exercise its defeasance option with respect to Junior Subordinated Debt Securities notwithstanding its prior exercise of its covenant defeasance option. If the Company exercises its defeasance option, payment of the Junior Subordinated Debt Securities may not be accelerated because of an Event of Default. If the Company exercises its covenant defeasance option, payment of such Junior Subordinated Debt Securities may not be accelerated by reference to the covenants noted under clause (B) above. However, if such an acceleration were to occur, the realizable value at the acceleration date of the money and U.S. Government Obligations in the defeasance
trust could be less than the principal and interest then due on such Junior Subordinated Debt Securities, in that the required deposit in the defeasance trust is based upon scheduled cash flows rather than market value, which will vary depending upon interest rates and other factors.
The prospectus supplement may further describe the provisions, if any, applicable to defeasance or covenant defeasance with respect to the Junior Subordinated Debt Securities of a particular series.
Conversion or Exchange
If and to the extent indicated in the applicable prospectus supplement, the Junior Subordinated Debt Securities of any series may be convertible or exchangeable into Junior Subordinated Debt Securities of another series or into other securities of the Company. The specific terms on which Junior Subordinated Debt Securities of any series may be so converted or exchanged will be set forth in the applicable prospectus supplement. Such terms may include provisions for conversion or exchange, either mandatory, at the option of the holder, or at the option of the Company, in which case the number or principal amount of such other securities to be received by the holders of Junior Subordinated Debt Securities would be calculated as of a time and in the manner stated in the applicable prospectus supplement.
Subordination
The Junior Subordinated Debt Securities will be subordinate in right of payment, to the extent set forth in the Junior Indenture, to all Senior Debt of the Company. If the Company defaults in the payment of any principal, premium, if any, or interest, if any, or any other amount payable on any Senior Debt when the same becomes due and payable, whether at maturity or at a date fixed for redemption or by declaration of acceleration or otherwise, then, unless and until such default has been cured or waived or has ceased to exist or all Senior Debt has been paid, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) may be made or agreed to be made on the Junior Subordinated Debt Securities, or in respect of any redemption, repayment, retirement, purchase or other acquisition of any of the Junior Subordinated Debt Securities.
As used in this section, "Senior Debt" means any obligation of the Company to its creditors, whether now outstanding or subsequently incurred, other than any obligation as to which, in the instrument creating or evidencing the obligation or pursuant to which the obligation is outstanding, it is provided that such obligation is not Senior Debt, but does not include trade accounts payable and accrued liabilities arising in the ordinary course of business. Senior Debt includes the Company's Senior Subordinated Debt Securities and any Senior Subordinated Debt Securities issued in the future with substantially similar subordination terms, but does not include the Junior Subordinated Debt Securities of any series or any Junior Subordinated Debt Securities issued in the future with subordination terms substantially similar to those of the Junior Subordinated Debt Securities. Substantially all of the existing indebtedness of the Company constitutes Senior Debt.
Indebtedness of the Company which is senior to the Junior Subordinated Debentures, at March 31, 2001, totaled approximately $5,073,349,038. Indebtedness existing under the Junior Indenture, at March 31, 2001, totaled approximately $1,546,393,500. These amounts do not include indebtedness of subsidiaries of the Company.
In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(ii) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors, or
(iv) any other marshaling of the assets of the Company,
then all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made on account of the Junior Subordinated Debt Securities.
In such event, any payment or distribution on account of the Junior Subordinated Debt Securities, whether in cash, securities or other property, that would otherwise (but for the subordination provisions) be payable or deliverable in respect of the Junior Subordinated Debt Securities will be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders until all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) has been paid in full.
In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Debt, the holders of Junior Subordinated Debt Securities, together with the holders of any obligations of the Company ranking on a parity with the Junior Subordinated Debt Securities, will be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on the Junior Subordinated Debt Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, will be made on account of any capital stock or obligations of the Company ranking junior to the Junior Subordinated Debt Securities. If any payment or distribution on account of the Junior Subordinated Debt Securities of any character or any security, whether in cash, securities or other property is received by any holder of any Junior Subordinated Debt Securities in contravention of any of the terms hereof and before all the Senior Debt has been paid in full, such payment or distribution or security will be received in trust for the benefit of, and must be paid over or delivered and transferred to, the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all such Senior Debt in full. By reason of such subordination, in the event of the insolvency of the Company, holders of Senior Debt may receive more, ratably, and holders of the Junior Subordinated Debt Securities may receive less, ratably, than the other creditors of the Company. Such subordination will not prevent the occurrence of any Event of Default under the Junior Indenture.
The Junior Subordinated Indenture places no limitation on the amount of additional Senior Debt that may be incurred by the Company. The Company expects from time to time to incur additional indebtedness constituting Senior Debt.
Trust Expenses
Pursuant to the Expense Agreement for each series of Corresponding Junior Subordinated Debt Securities, the Company, as holder of the Trust Common Securities, will irrevocably and unconditionally agree with each BNY Trust that holds Junior Subordinated Debt Securities that the Company will pay to such BNY Trust, and reimburse such BNY Trust for, the full amounts of any costs, expenses or liabilities of the BNY Trust, other than obligations of the BNY Trust to pay to the holders of any Trust Preferred Securities or other similar interests in the BNY Trust the amounts due such holders pursuant to the terms of the Trust Preferred Securities or such other similar interests, as the case may be. Such payment obligation will include any such costs, expenses or liabilities of the BNY Trust that are required by applicable law to be satisfied in connection with a termination of such BNY Trust.
Governing Law
The Junior Indenture and the Junior Subordinated Debt Securities will be governed by and construed in accordance with the laws of the State of New York.
Information Concerning the Junior Indenture Trustee
The Junior Indenture Trustee shall have and be subject to all the duties and responsibilities specified with respect to an indenture trustee under the Trust Indenture Act. Subject to such provisions, the Junior Indenture Trustee is under no obligation to exercise any of the powers vested in it by the Junior Indenture at the request of any holder of Junior Subordinated Debt Securities, unless offered reasonable indemnity by such holder against the costs, expenses and liabilities which might be incurred thereby. The Junior Indenture Trustee is not required to expend or risk its own funds or otherwise incur personal financial liability in the performance of its duties if the Junior Indenture Trustee reasonably believes that repayment or adequate indemnity is not reasonably assured to it.
Corresponding Junior Subordinated Debt Securities
The Corresponding Junior Subordinated Debt Securities may be issued in one or more series of Junior Subordinated Debt Securities under the Junior Indenture with terms corresponding to the terms of a series of Related Trust Preferred Securities. In that event, concurrently with the issuance of each BNY Trust's Trust Preferred Securities, such BNY Trust will invest the proceeds thereof and the consideration paid by the Company for the Trust Common Securities of such BNY Trust in such series of Corresponding Junior Subordinated Debt Securities issued by the Company to such BNY Trust. Each series of Corresponding Junior Subordinated Debt Securities will be in the principal amount equal to the aggregate stated Liquidation Amount of the Related Trust Preferred Securities and the Trust Common Securities of such BNY Trust and will rank on a parity with all other series of Junior Subordinated Debt Securities. Holders of the Related Trust Preferred Securities for a series of Corresponding Junior Subordinated Debt Securities will have the rights in connection with modifications to the Junior Indenture or upon occurrence of Debenture Events of Default, as described under "--Modification of Junior Indenture" and "--Debenture Events of Default", unless provided otherwise in the prospectus supplement for such Related Trust Preferred Securities.
Unless otherwise specified in the applicable prospectus supplement, if a Tax Event or a Capital Treatment Event in respect of a BNY Trust shall occur and be continuing, the Company may, at its option and subject to prior approval of the Federal Reserve Board if then so required under applicable capital guidelines or policies, redeem the Corresponding Junior Subordinated Debt Securities at any time within 90 days of the occurrence of such Tax Event or Capital Treatment Event, in whole but not in part, subject to the provisions of the Junior Indenture and whether or not such Corresponding Junior Subordinated Debt Securities are then otherwise redeemable at the option of the Company. Unless provided otherwise in the related prospectus supplement, the redemption price for any Corresponding Junior Subordinated Debt Securities shall be equal to 100% of the principal amount of such Corresponding Junior Subordinated Debt Securities then outstanding plus accrued and unpaid interest to the date fixed for redemption. For so long as the applicable BNY Trust is the holder of all the outstanding Corresponding Junior Subordinated Debt Securities, the proceeds of any such redemption will be used by the BNY Trust to redeem the corresponding Trust Securities in accordance with their terms. In lieu of such redemption, the Company has the right to dissolve the applicable BNY Trust and to distribute such Corresponding Junior Subordinated Debt Securities to the holders of the related series of Trust Securities in liquidation of such BNY Trust. See "Description of Trust Preferred Securities--Redemption or Exchange-- Distribution of Corresponding Junior Subordinated Debentures" for a more detailed discussion. The Company may not redeem a series of Corresponding Junior Subordinated Debt Securities in part unless all accrued and unpaid interest has been paid in full on all outstanding Corresponding Junior Subordinated Debt Securities of such series for all interest periods terminating on or prior to the Redemption Date.
The Company will covenant in the Junior Indenture, as to each series of Corresponding Junior Subordinated Debt Securities, that if and so long as (i) the BNY Trust of the related series of Trust Securities is the holder of all such Corresponding Junior Subordinated Debt Securities, (ii) a Tax Event in respect of such BNY Trust has occurred and is continuing and (iii) the Company has elected to redeem such Corresponding Junior Subordinated Debt Securities or dissolve such BNY Trust, and has not revoked such election, the Company will pay to such BNY Trust Additional Sums (as defined under "Description of Trust Preferred Securities--Redemption or Exchange"). The Company will also covenant, as to each series of Corresponding Junior Subordinated Debt Securities, (i) to maintain directly or indirectly 100% ownership of the Trust Common Securities of the BNY Trust to which such Corresponding Junior Subordinated Debt Securities have been issued, provided that certain successors which are permitted pursuant to the Junior Indenture may succeed to the Company's ownership of the Trust Common Securities, (ii) not to voluntarily terminate, wind-up or liquidate any BNY Trust, except (a) in connection with a distribution of Corresponding Junior Subordinated Debt Securities to the holders of the Trust Preferred Securities in exchange therefor upon liquidation of such BNY Trust or (b) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement, in either such case, if so specified in the applicable prospectus supplement upon prior approval of the Federal Reserve, if then so required under applicable Federal Reserve capital guidelines or policies, and (iii) to use its reasonable efforts, consistent with the terms and provisions of the related Trust Agreement, to cause such BNY Trust to be classified as a grantor trust and not as an association taxable as a corporation for United States Federal income tax purposes.
DESCRIPTION OF TRUST PREFERRED SECURITIES
This summary of certain provisions of the Trust Preferred Securities and each Trust Agreement is not complete. For a complete description you should read each Trust Agreement. Wherever particular defined terms of a Trust Agreement are referred to herein or in a prospectus supplement, such defined terms are incorporated herein or therein by reference. The form of the Trust Agreement is incorporated as an exhibit to the registration statement of which this prospectus is a part by reference to the Company's Registration Statement on Form S-3 (Nos. 333-70187, 333-70187-01, 333-70187-02, 333-70187-03 and 333- 70187-04).
Pursuant to the terms of the Trust Agreement for each BNY Trust, each BNY Trust will sell Trust Preferred Securities to the public and Trust Common Securities to the Company. The Trust Preferred Securities represent preferred beneficial interests in the BNY Trust that sold them. Holders of such Trust Preferred Securities will be entitled to receive Distributions and amounts payable on redemption or liquidation ahead of holders of the Trust Common Securities. A more complete discussion appears under the heading "-- Subordination of Trust Common Securities". Holders of the Trust Preferred Securities will also be entitled to other benefits as described in the corresponding Trust Agreement.
Each of the BNY Trusts is a legally separate entity and the assets of one are not available to satisfy the obligations of any of the others.
General
The Trust Preferred Securities of a BNY Trust will rank on a parity, and payments will be made thereon pro rata, with the Trust Common Securities of that BNY Trust except as described under "--Subordination of Trust Common Securities". Legal title to the Corresponding Junior Subordinated Debt Securities will be held and administered by the Property Trustee in trust for the benefit of the holders of the Related Trust Preferred Securities and Trust Common Securities.
Each Guarantee Agreement executed by the Company for the benefit of the holders of a BNY Trust's Trust Preferred Securities will be a Guarantee on a subordinated basis with respect to the Related Trust Preferred Securities but will not guarantee payment of Distributions or amounts payable on redemption or liquidation of such Trust Preferred Securities when the related BNY Trust does not have funds on hand available to make such payments. See "Description of Guarantees."
Distributions
Distributions on the Trust Preferred Securities will be cumulative, will accrue from the date of original issuance and will be payable on such dates as specified in the applicable prospectus supplement. In the event that any date on which Distributions are payable on the Trust Preferred Securities is not a Business Day, payment of the Distribution payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect to any such delay) except that, if such Business Day is in the next succeeding calendar year, payment of such Distribution shall be made on the immediately preceding Business Day, in either case with the same force and effect as if made on such date (each date on which Distributions are payable in accordance with the foregoing, a "Distribution Date"). A "Business Day" shall mean any day other than a Saturday or a Sunday, or a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or a day on which the corporate trust office of the Property Trustee or the Junior Indenture Trustee is closed for business.
Each BNY Trust's Trust Preferred Securities represent preferred beneficial interests in the applicable BNY Trust, and the Distributions on each Preferred Security will be payable at a rate specified in the applicable prospectus supplement for such Trust Preferred Securities. Distributions to which holders of Trust Preferred Securities are entitled will accumulate additional Distributions at the rate per annum if and as specified in the applicable prospectus supplement. The term "Distributions" as used herein includes any such additional Distributions unless otherwise stated.
If an Extension Period occurs with respect to the Corresponding Junior Subordinated Debt Securities, distributions on the Related Trust Preferred Securities will be correspondingly deferred. See "Description of Junior Subordinated Debt Securities--Option to Defer Interest Payments."
The revenue of each BNY Trust available for distribution to holders of its Trust Preferred Securities will be limited to payments under the Corresponding Junior Subordinated Debt Securities in which the BNY Trust will invest the proceeds from the issuance and sale of its Trust Securities. See "Description of Junior Subordinated Debt Securities--Corresponding Junior Subordinated Debt Securities." If the Company does not make interest payments on such Corresponding Junior Subordinated Debt Securities, the Property Trustee will not have funds available to pay Distributions on the Related Trust Preferred Securities. The payment of Distributions (if and to the extent the BNY Trust has funds legally available for the payment of such Distributions and cash sufficient to make such payments) is guaranteed by the Company on a limited basis as set forth herein under "Description of Guarantees".
Distributions on the Trust Preferred Securities will be payable to the holders thereof as they appear on the register of such BNY Trust at the close of business on the relevant record dates, which, as long as the Trust Preferred Securities remain in book-entry form, will be one Business Day prior to the relevant Distribution Date. Subject to any applicable laws and regulations and the provisions of the applicable Trust Agreement, each such payment will be made as described under "Book-Entry Issuance." In the event any Trust Preferred Securities are not in book-entry form, the relevant record date for such Trust Preferred Securities shall be the date at least 15 days prior to the relevant Distribution Date, as specified in the applicable prospectus supplement.
Redemption or Exchange
Mandatory Redemption. Upon the repayment or redemption, in whole or in part, of any Corresponding Junior Subordinated Debt Securities, whether at maturity or upon earlier redemption as provided in the Junior Indenture, the proceeds from such repayment or redemption shall be applied by the Property Trustee to redeem a Like Amount of the Trust Securities, upon not less than 30 nor more than 60 days notice, at a redemption price (the "Redemption Price") equal to the aggregate Liquidation Amount of such Trust Securities plus accumulated but unpaid Distributions thereon to the date of redemption (the "Redemption Date") and the related amount of the premium, if any, paid by the Company upon the concurrent redemption of such Corresponding Junior Subordinated Debt Securities. See "Description of Junior Subordinated Debt Securities--Redemption". If less than all of any series of Corresponding Junior Subordinated Debt Securities are to be repaid or redeemed on a Redemption Date, then the proceeds from such repayment or redemption shall be allocated to the redemption pro rata of the Related Trust Preferred Securities and the Trust Common Securities based upon the relative Liquidation Amounts of such classes. The amount of premium, if any, paid by the Company upon the redemption of all or any part of any series of any Corresponding Junior Subordinated Debt Securities to be repaid or redeemed on a Redemption Date shall be allocated to the redemption pro rata of the Related Trust Preferred Securities and the Trust Common Securities. The Redemption Price will be payable on each Redemption Date only to the extent that the Issuer Trust has funds then on hand and available in the Payment Account for the payment of such Redemption Price.
The Company will have the right to redeem any series of Corresponding Junior Subordinated Debt Securities (i) on or after such date as may be specified in the applicable prospectus supplement, in whole at any time or in part from time to time, (ii) at any time, in whole (but not in part), upon the occurrence of a Tax Event or Capital Treatment Event or (iii) as may be otherwise specified in the applicable prospectus supplement, in each case subject to receipt of prior approval by the Federal Reserve Board if then so required under applicable Federal Reserve capital guidelines or policies.
Distribution of Corresponding Junior Subordinated Debt Securities. Subject to the Company having received prior approval of the Federal Reserve Board to do so if such approval is then required under applicable capital guidelines or policies of the Federal Reserve Board, the Company has the right at any time to terminate any BNY Trust and, after satisfaction of the liabilities of creditors of such BNY Trust as provided by applicable law, cause such Corresponding Junior Subordinated Debt Securities in respect of the Trust Preferred Securities and Trust Common Securities issued by such BNY Trust to be distributed to the holders of such Trust Preferred Securities and Trust Common Securities in liquidation of such BNY Trust.
Tax Event or Capital Treatment Event Redemption. If a Tax Event or Capital Treatment Event in respect of a series of Trust Preferred Securities and Trust Common Securities shall occur and be continuing, the Company has the right to redeem the Corresponding Junior Subordinated Debt Securities in whole (but not in part) and thereby cause a mandatory redemption of such Trust Preferred Securities and Trust Common Securities in whole (but not in part) at the Redemption Price within 90 days following the occurrence of such Tax Event or Capital Treatment Event. In the event a Tax Event or Capital Treatment Event in respect of a series of Trust Preferred Securities and Trust Common Securities has occurred and is continuing and the Company does not elect to redeem the Corresponding Junior Subordinated Debt Securities and thereby cause a mandatory redemption of such Trust Preferred Securities or to liquidate the related BNY Trust and cause the Corresponding Junior Subordinated Debt Securities to be distributed to holders of such Trust Preferred Securities and Trust Common Securities in exchange therefor upon liquidation of the BNY Trust as described above, such Trust Preferred Securities will remain outstanding and Additional Sums may be payable on the Corresponding Junior Subordinated Debt Securities.
"Additional Sums" means the additional amounts as may be necessary in order that the amount of Distributions then due and payable by a BNY Trust on the outstanding Trust Preferred Securities and Trust Common Securities of the BNY Trust shall not be reduced as a result of any additional taxes, duties and other governmental charges to which such BNY Trust has become subject as a result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of any series of Trust
Securities, Trust Securities of such series having a Liquidation Amount equal to
the principal amount of Corresponding Junior Subordinated Debt Securities to be
contemporaneously redeemed in accordance with the Junior Indenture, the proceeds
of which will be used to pay the Redemption Price of such Trust Securities, and
(ii) with respect to a distribution of Corresponding Junior Subordinated Debt
Securities to holders of any series of Trust Securities in connection with a
dissolution or liquidation of the related BNY Trust, Corresponding Junior
Subordinated Debt Securities having a principal amount equal to the Liquidation
Amount of the Trust Securities in respect of which such distribution is made.
"Liquidation Amount" means the stated liquidation amount per Trust Security of $25 (or such other stated amount as is set forth in the applicable prospectus supplement).
After the liquidation date fixed for any distribution of Corresponding Junior Subordinated Debt Securities for any Trust Preferred Securities:
(i) such Trust Preferred Securities will no longer be deemed to be outstanding,
(ii) The Depository Trust Company ("DTC") (for a more detailed explanation of DTC, see "Book-Entry Issuance") or its nominee, as the record holder of such Trust Preferred Securities, will receive a registered global certificate or certificates representing the Corresponding Junior Subordinated Debt Securities to be delivered upon such distribution, and
(iii) any certificates representing such Trust Preferred Securities not held by DTC or its nominee will be deemed to represent the Corresponding Junior Subordinated Debt Securities having a principal amount equal to the stated Liquidation Amount of such Trust Preferred Securities, and bearing accrued and unpaid interest in an amount equal to the accrued and unpaid Distributions on such Trust Preferred Securities until such certificates are presented to the Administrative Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the Trust Preferred Securities or the Corresponding Junior Subordinated Debt Securities that may be distributed in exchange for Trust Preferred Securities if a dissolution and liquidation of a BNY Trust were to occur. Accordingly, the Trust Preferred Securities that an investor may purchase, or the Corresponding Junior Subordinated Debt Securities that the investor may receive on dissolution and liquidation of a BNY Trust, may trade at a discount to the price that the investor paid to purchase the Trust Preferred Securities offered hereby.
Redemption Procedures
Trust Preferred Securities redeemed on each Redemption Date shall be redeemed at the Redemption Price with the applicable proceeds from the contemporaneous redemption of the Corresponding Junior Subordinated Debt
Securities. Redemptions of the Trust Preferred Securities shall be made and the Redemption Price shall be payable on each Redemption Date only to the extent that the related BNY Trust has funds on hand available for the payment of such Redemption Price. See also "--Subordination of Trust Common Securities".
If the Property Trustee gives a notice of redemption in respect of any Trust Preferred Securities, then, while such Trust Preferred Securities are in book- entry form, by 12:00 noon, New York City time, on the Redemption Date, to the extent funds are available, the Property Trustee will deposit irrevocably with DTC funds sufficient to pay the applicable Redemption Price and will give DTC irrevocable instructions and authority to pay the Redemption Price to the holders of such Trust Preferred Securities. See "Book-Entry Issuance". If such Trust Preferred Securities are no longer in book-entry form, the Property Trustee, to the extent funds are available, will irrevocably deposit with the paying agent for such Trust Preferred Securities funds sufficient to pay the applicable Redemption Price and will give such paying agent irrevocable instructions and authority to pay the Redemption Price to the holders thereof upon surrender of their certificates evidencing such Trust Preferred Securities. Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any Trust Preferred Securities called for redemption shall be payable to the holders of such Trust Preferred Securities on the relevant record dates for the related Distribution Dates. If notice of redemption shall have been given and funds deposited as required, then upon the date of such deposit, all rights of the holders of such Trust Preferred Securities so called for redemption will cease, except the right of the holders of such Trust Preferred Securities to receive the Redemption Price and any Distribution payable in respect of the Trust Preferred Securities on or prior to the Redemption Date, but without interest on such Redemption Price, and such Trust Preferred Securities will cease to be outstanding. In the event that any date fixed for redemption of Preferred Securities is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on such date. In the event that payment of the Redemption Price in respect of Trust Preferred Securities called for redemption is improperly withheld or refused and not paid either by a BNY Trust or by the Company pursuant to the related Guarantee as described under "Description of Guarantees", Distributions on such Trust Preferred Securities will continue to accrue at the then applicable rate from the Redemption Date originally established by such BNY Trust for such Trust Preferred Securities to the date such Redemption Price is actually paid, in which case the actual payment date will be the date fixed for redemption for purposes of calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States Federal securities law), the Company or its subsidiaries may at any time and from time to time purchase outstanding Trust Preferred Securities by tender, in the open market or by private agreement.
Payment of the Redemption Price on the Trust Preferred Securities and any distribution of Corresponding Junior Subordinated Debt Securities to holders of Trust Preferred Securities shall be made to the applicable record holders thereof as they appear on the register for such Trust Preferred Securities on the relevant record date, which, as long as the Trust Preferred Securities remain in book-entry form, shall be one Business Day prior to the relevant Redemption Date or liquidation date, as applicable; provided, however, that in the event that such Trust Preferred Securities are not in book-entry form, the relevant record date for such Trust Preferred Securities shall be a date at least 15 days prior to the Redemption Date or liquidation date, as applicable, as specified in the applicable prospectus supplement.
If less than all of the Trust Preferred Securities and Trust Common Securities issued by a BNY Trust are to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of such Trust Preferred Securities and Trust Common Securities to be redeemed shall be allocated pro rata to the Trust Preferred Securities and the Trust Common Securities based upon the relative Liquidation Amounts of such classes. The particular Trust Preferred Securities to be redeemed shall be selected on a pro rata basis not more than 60 days prior to the Redemption Date by the Property Trustee from the outstanding Trust Preferred Securities not previously called for redemption, by such customary method as the Property Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to $25 or an integral multiple of $25 in excess thereof, unless a different amount is specified in the applicable prospectus supplement) of the Liquidation Amount of Preferred Securities of a denomination larger than $25 (or such other denomination as is specified in the applicable prospectus supplement). The Property Trustee shall promptly notify the Securities Registrar in writing of the Trust Preferred Securities
selected for redemption and, in the case of any Trust Preferred Securities selected for partial redemption, the Liquidation Amount thereof to be redeemed. For all purposes of each Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Trust Preferred Securities shall relate, in the case of any Trust Preferred Securities redeemed or to be redeemed only in part, to the portion of the aggregate Liquidation Amount of Trust Preferred Securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each holder of Trust Securities to be redeemed at its registered address. Unless the Company defaults in payment of the Redemption Price on the Corresponding Junior Subordinated Debt Securities, on and after the Redemption Date interest will cease to accrue on such Junior Subordinated Debt Securities or portions thereof (and Distributions will cease to accrue on the Related Trust Preferred Securities or portions thereof) called for redemption.
Subordination of Trust Common Securities
Payment of Distributions on, and the Redemption Price of, each BNY Trust's Trust Preferred Securities and Trust Common Securities, as applicable, shall be made pro rata based on the Liquidation Amount of such Trust Preferred Securities and Trust Common Securities; provided, however, that if on any Distribution Date, Redemption Date or liquidation date a Debenture Event of Default shall have occurred and be continuing, no payment of any Distribution on, or Redemption Price of, or Liquidation Distribution in respect of, any of such BNY Trust's Trust Common Securities, and no other payment on account of the redemption, liquidation or other acquisition of such Trust Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions on all of such BNY Trust's outstanding Trust Preferred Securities for all Distribution periods terminating on or prior thereto, or in the case of payment of the Redemption Price the full amount of such Redemption Price on all of such BNY Trust's outstanding Preferred Securities then called for redemption, or in the case of payment of the Liquidation Distribution the full amount of such Liquidation Distribution on all outstanding Trust Preferred Securities, shall have been made or provided for, and all funds available to the Property Trustee shall first be applied to the payment in full in cash of all Distributions on, or Redemption Price of, such BNY Trust's Trust Preferred Securities then due and payable.
In the case of any event of default under the applicable Trust Agreement resulting from a Debenture Event of Default, the Company as holder of such BNY Trust's Trust Common Securities will have no right to act with respect to any such Event of Default under the applicable Trust Agreement until the effect of all such Events of Default with respect to such Trust Preferred Securities have been cured, waived or otherwise eliminated. Until any such Events of Default under the applicable Trust Agreement with respect to the Trust Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the holders of such Trust Preferred Securities and not on behalf of the Company as holder of such BNY Trust's Trust Common Securities, and only the holders of such Trust Preferred Securities will have the right to direct the Property Trustee to act on their behalf.
Liquidation Distribution Upon Termination
Pursuant to each Trust Agreement, each BNY Trust shall terminate on the first to occur of:
(i) the expiration of its term;
(ii) certain events of bankruptcy, dissolution or liquidation of the holder of the Trust Common Securities;
(iii) the distribution of a Like Amount of the Corresponding Junior Subordinated Debt Securities to the holders of its Trust Securities, if the Company, as Depositor, has given written direction to the Property Trustee to terminate such BNY Trust (subject to the Company having received prior approval of the Federal Reserve if then so required under applicable capital guidelines or policies) Such written direction by the Company is optional and solely within the discretion of the Company;
(iv) redemption of all of such BNY Trust's Preferred Securities as described under "--Redemption or Exchange--Mandatory Redemption"; and
(v) the entry of an order for the dissolution of such BNY Trust by a court of competent jurisdiction.
If an early termination occurs as described in clause (ii), (iii) or (v) above, the relevant BNY Trust shall be liquidated by the related BNY Trust Trustees as expeditiously as such BNY Trust Trustees determine to be possible by distributing, after satisfaction of liabilities to creditors of such BNY Trust as provided by applicable law, to the holders of such Trust Securities in exchange therefor a Like Amount of the Corresponding Junior Subordinated Debt Securities, unless such distribution is determined by the Property Trustee not to be practical, in which event such holders will be entitled to receive out of the assets of such BNY Trust available for distribution to holders, after satisfaction of liabilities to creditors of such BNY Trust as provided by applicable law, an amount equal to, in the case of holders of Trust Preferred Securities, the aggregate of the Liquidation Amount plus accrued and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"). If such Liquidation Distribution can be paid only in part because such BNY Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by such BNY Trust on its Trust Preferred Securities shall be paid on a pro rata basis. The holder(s) of such BNY Trust's Trust Common Securities will be entitled to receive distributions upon any such liquidation pro rata with the holders of its Trust Preferred Securities, except that if a Debenture Event of Default has occurred and is continuing, the Trust Preferred Securities shall have a priority over the Trust Common Securities.
Events of Default; Notice
Any one of the following events constitutes an "Event of Default" under each Trust Agreement with respect to the Trust Preferred Securities issued thereunder (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default under the Junior Indenture (see "Description of Junior Subordinated Debt Securities--Debenture Events of Default"); or
(ii) default by the Property Trustee in the payment of any Distribution when it becomes due and payable, and continuation of such default for a period of 30 days; or
(iii) default by the Property Trustee in the payment of any Redemption Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of any covenant or warranty of the BNY Trust Trustees in such Trust Agreement (other than a covenant or warranty a default in the performance of which or the breach of which is dealt with in clause (ii) or (iii) above), and continuation of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the defaulting BNY Trust Trustee or Trustees by the holders of at least 25% in aggregate Liquidation Amount of the outstanding Trust Preferred Securities of the applicable BNY Trust, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" under such Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with respect to the Property Trustee and the failure by the Company to appoint a successor Property Trustee within 90 days thereof.
Within five Business Days after the occurrence of any Event of Default actually known to the Property Trustee, the Property Trustee shall transmit notice of such Event of Default to the holders of such BNY Trust's Trust Preferred Securities, the Administrative Trustees and the Company, as Depositor, unless such Event of Default shall have been cured or waived. The Company, as Depositor, and the Administrative Trustees are required to file annually with the Property Trustee a certificate as to whether or not they are in compliance with all the conditions and covenants applicable to them under each Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the Trust Preferred Securities shall have a preference over the Trust Common Securities as described above. See "--Liquidation Distribution Upon Termination." The existence of an Event of Default does not entitle the holders of Trust Preferred Securities to accelerate the maturity thereof.
Removal of BNY Trust Trustees
Unless a Debenture Event of Default shall have occurred and be continuing, any BNY Trust Trustee may be removed at any time by the holder of the Trust Common Securities. If a Debenture Event of Default has occurred and is continuing, the Property Trustee and the Delaware Trustee may be removed at such time by the holders of a majority in Liquidation Amount of the outstanding Trust Preferred Securities. In no event will the holders of the Trust Preferred Securities have the right to vote to appoint, remove or replace the Administrative Trustees, which voting rights are vested exclusively in the Company as the holder of the Trust Common Securities. No resignation or removal of a BNY Trust Trustee and no appointment of a successor trustee shall be effective until the acceptance of appointment by the successor trustee in accordance with the provisions of the applicable Trust Agreement.
Co-trustees and Separate Property Trustee
Unless an Event of Default shall have occurred and be continuing, at any time or from time to time, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property may at the time be located, the Company, as the holder of the Trust Common Securities, and the Administrative Trustees shall have power to appoint one or more persons either to act as a co-trustee, jointly with the Property Trustee, of all or any part of such Trust Property, or to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such person or persons in such capacity any property, title, right or power deemed necessary or desirable, subject to the provisions of the applicable Trust Agreement. In case a Debenture Event of Default has occurred and is continuing, the Property Trustee alone shall have power to make such appointment.
Merger or Consolidation of BNY Trust Trustees
Any Person into which the Property Trustee, the Delaware Trustee or any Administrative Trustee that is not a natural person may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of such Trustee, shall automatically become the successor of such Trustee under each Trust Agreement, provided such Person shall be otherwise qualified and eligible.
Mergers, Consolidations, Amalgamations or Replacements of the BNY Trusts
A BNY Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation or other Person, except as described below. A BNY Trust may, at the request of the Company, with the consent of the Administrative Trustees and without the consent of the holders of the related Trust Preferred Securities, merge with or into, consolidate, amalgamate, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to a trust organized as such under the laws of any State; provided, that:
(i) such successor entity either (a) expressly assumes all of the obligations of such BNY Trust with respect to such Trust Preferred Securities or (b) substitutes for such Trust Preferred Securities other securities having substantially the same terms as such Trust Preferred Securities (the "Successor Securities") so long as the Successor Securities rank the same as such Trust Preferred Securities in priority with respect to distributions and payments upon liquidation, redemption and otherwise,
(ii) the Company expressly appoints a trustee of such successor entity possessing the same powers and duties as the Property Trustee as the holder of the Corresponding Junior Subordinated Debt Securities,
(iii) the Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or other organization on which such Trust Preferred Securities are then listed, if any,
(iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Trust Preferred Securities to be downgraded by any nationally recognized statistical rating organization which assigns ratings to the Trust Preferred Securities,
(v) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the material rights, preferences and privileges of the holders of the Preferred Securities (including any Successor Securities) in any material respect,
(vi) such successor entity has a purpose identical to that of the BNY Trust,
(vii) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Company has received an opinion from independent counsel to the BNY Trust experienced in such matters to the effect that (a) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the material rights, preferences and privileges of the holders of the Preferred Securities (including any Successor Securities) in any material respect, and (b) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the BNY Trust nor such successor entity will be required to register as an investment company under the Investment Company Act of 1940, as amended (the "Investment Company Act"), and
(viii) the Company or any permitted successor or assignee owns all of the Trust Common Securities of such successor entity and guarantees the obligations of such successor entity under the Successor Securities at least to the extent provided by the related Guarantee.
Notwithstanding the foregoing, a BNY Trust shall not, except with the consent of holders of 100% in Liquidation Amount of the related Trust Preferred Securities, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the BNY Trust or the successor entity to be classified as an association taxable as a corporation or as other than a grantor trust for United States Federal income tax purposes.
There are no provisions that afford holders of any Trust Preferred Securities protection in the event of a sudden and dramatic decline in credit quality of the Company resulting from any highly leveraged transaction, takeover, merger, recapitalization or similar restructuring or change in control of the Company. Nor are there any provisions that require the repurchase of any Trust Preferred Securities upon a change in control of the Company.
Voting Rights; Amendment of Each Trust Agreement
Except as provided below and under "Description of Guarantees--Amendments and Assignment" and as otherwise required by law and the applicable Trust Agreement, the holders of the Trust Preferred Securities will have no voting rights or the right to in any manner otherwise control the administration, operation or management of the relevant BNY Trust.
Each Trust Agreement may be amended from time to time by the Company, the Property Trustee and the Administrative Trustees, without the consent of the holders of the Trust Preferred Securities (i) to cure any ambiguity, correct or supplement any provisions in such Trust Agreement that may be inconsistent with any other provision, or to make any other provisions with respect to matters or questions arising under such Trust Agreement, which shall not be inconsistent with the other provisions of such Trust Agreement provided that any such amendment does not adversely affect the interests of any holder of Trust Securities, or (ii) to modify, eliminate or add to any provisions of such Trust Agreement to such extent as shall be necessary to ensure that the relevant BNY Trust will be classified for United States Federal income tax purposes as a grantor trust or as other than an association taxable as a corporation at all times that any Trust Securities are outstanding, to ensure that the Corresponding Junior Subordinated Debt Securities will be treated as indebtedness of the Company or to ensure that such BNY Trust will not be required to register as an "investment company" under the Investment Company Act; provided however, that such amendments do not adversely affect in any material respect the rights of the holders of the Trust Preferred Securities. Any amendments of such Trust Agreement shall become effective when notice
thereof is given to the holders of Trust Securities. Each Trust Agreement may be amended by the related BNY Trust Trustees and the Company with (i) the consent of holders representing not less than a majority (based upon Liquidation Amounts) of the outstanding Trust Securities, and (ii) receipt by such BNY Trust Trustees of an opinion of counsel to the effect that such amendment or the exercise of any power granted to such BNY Trust Trustees in accordance with such amendment will not cause such BNY Trust to be taxable as a corporation or affect such BNY Trust's status as a grantor trust for United States Federal income tax purposes or such BNY Trust's exemption from status as an "investment company" under the Investment Company Act, provided that without the consent of each holder of Trust Securities, such Trust Agreement may not be amended to (i) change the amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the amount of any Distribution required to be made in respect of the Trust Securities as of a specified date or (ii) restrict the right of a holder of Trust Securities to institute suit for the enforcement of any such payment on or after such date.
So long as any Corresponding Junior Subordinated Debt Securities are held by the Property Trustee, the related BNY Trust Trustees shall not (i) direct the time, method and place of conducting any proceeding for any remedy available to the Junior Indenture Trustee, or executing any trust or power conferred on the Property Trustee with respect to such Corresponding Junior Subordinated Debt Securities, (ii) waive any past default that is waivable under the Junior Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Junior Subordinated Debt Securities shall be due and payable or (iv) consent to any amendment, modification or termination of the Junior Indenture or such Corresponding Junior Subordinated Debt Securities, where such consent shall be required, without, in each case, obtaining the prior approval of the holders of a majority in aggregate Liquidation Amount of all outstanding Trust Preferred Securities; provided, however, that where a consent under the Junior Indenture would require the consent of each holder of Corresponding Junior Subordinated Debt Securities affected thereby, no such consent shall be given by the Property Trustee without the prior consent of each holder of the Related Trust Preferred Securities. The BNY Trust Trustees shall not revoke any action previously authorized or approved by a vote of the holders of the Trust Preferred Securities except by subsequent vote of the holders of such Trust Preferred Securities. The Property Trustee shall notify each holder of Trust Preferred Securities of any notice of default with respect to the Corresponding Junior Subordinated Debt Securities. In addition to obtaining the foregoing approvals of the holders of the Trust Preferred Securities, prior to taking any of the foregoing actions, the BNY Trust Trustees shall obtain an opinion of counsel experienced in such matters to the effect that the BNY Trust will not be classified as an association taxable as a corporation for United States Federal income tax purposes on account of such action and such action would not cause the BNY Trust to be classified as other than a grantor trust for United States Federal income tax purposes.
Any required approval of holders of Trust Preferred Securities may be given at a meeting of holders of Trust Preferred Securities convened for such purpose or pursuant to written consent. The Property Trustee will cause a notice of any meeting at which holders of Trust Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such holders is to be taken, to be given to each holder of record of Trust Preferred Securities in the manner set forth in each Trust Agreement.
No vote or consent of the holders of Trust Preferred Securities will be required for a BNY Trust to redeem and cancel its Trust Preferred Securities in accordance with the applicable Trust Agreement.
Notwithstanding that holders of Trust Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Preferred Securities that are owned by the Company, the BNY Trust Trustees or any affiliate of the Company or any BNY Trust Trustees, shall, for purposes of such vote or consent, be treated as if they were not outstanding.
Global Trust Preferred Securities
Unless otherwise set forth in a prospectus supplement, any Trust Preferred Securities will be represented by fully registered global certificates issued as global Trust Preferred Securities to be deposited with a depositary with respect to that series, instead of paper certificates issued to each individual holder. The depositary arrangements that will apply, including the manner in which principal of and premium, if any, and interest on global Trust Preferred Securities and other payments will be payable are discussed in more detail under the heading "Book-Entry Issuance."
Payment and Paying Agency
Payments in respect of Trust Preferred Securities represented by global certificates shall be made to DTC as described under "Book-Entry Issuance." If any Trust Preferred Securities are not represented by global certificates, such payments shall be made by check mailed to the address of the holder entitled thereto as such address shall appear on the Register. Unless otherwise specified in the applicable prospectus supplement, the paying agent (the "Paying Agent") shall initially be the Property Trustee and any co-paying agent chosen by the Property Trustee and reasonably acceptable to the Administrative Trustees and the Company. The Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written notice to the Property Trustee and the Company. In the event that the Property Trustee shall no longer be the Paying Agent, the Administrative Trustees shall appoint a successor (which shall be a bank or trust company acceptable to the Administrative Trustees and the Company) to act as Paying Agent.
Registrar and Transfer Agent
Unless otherwise specified in the applicable prospectus supplement, the Property Trustee will act as registrar and transfer agent for the Preferred Securities.
Registration of transfers of Trust Preferred Securities will be effected without charge by or on behalf of each BNY Trust, but upon payment of any tax or other governmental charges that may be imposed in connection with any transfer or exchange. The BNY Trusts will not be required to register or cause to be registered the transfer of their Trust Preferred Securities after such Trust Preferred Securities have been called for redemption.
Information Concerning the Property Trustee
The Property Trustee, other than during the occurrence and continuance of an Event of Default, undertakes to perform only such duties as are specifically set forth in each Trust Agreement and, after such Event of Default, must exercise the same degree of care and skill as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the Property Trustee is under no obligation to exercise any of the powers vested in it by the applicable Trust Agreement at the request of any holder of Trust Preferred Securities unless it is offered reasonable indemnity against the costs, expenses and liabilities that might be incurred thereby. If no Event of Default has occurred and is continuing and the Property Trustee is required to decide between alternative causes of action, construe ambiguous provisions in the applicable Trust Agreement or is unsure of the application of any provision of the applicable Trust Agreement, and the matter is not one on which holders of Trust Preferred Securities are entitled under such Trust Agreement to vote, then the Property Trustee shall take such action as is directed by the Company and if not so directed, shall take such action as it deems advisable and in the best interests of the holders of the Trust Securities and will have no liability except for its own bad faith, negligence or willful misconduct.
Miscellaneous
The Administrative Trustees are authorized and directed to conduct the affairs of and to operate the BNY Trusts in such a way that no BNY Trust will be deemed to be an "investment company" required to be registered under the Investment Company Act or classified as an association taxable as a corporation or as other than a grantor trust for United States Federal income tax purposes and so that the Corresponding Junior Subordinated Debt Securities will be treated as indebtedness of the Company for United States Federal income tax purposes. In this connection, the Company and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust of each BNY Trust or each Trust Agreement, that the Company and the Administrative Trustees determine in their discretion to be necessary or desirable for such purposes. The Company and the BNY Trustees may amend each Trust Agreement without the consent of the holders of the related Trust Preferred Securities and even if such amendment would adversely affect the interests of such holders, as shall be necessary to ensure that each BNY Trust will be classified for United States Federal income tax purposes as a grantor trust and will not be required to register as an investment company under the Investment Company Act and to ensure that the Corresponding Junior Subordinated Debentures will be treated as indebtedness of the Company. A more detailed discussion appears under the heading "--Voting Rights; Amendment of Each Trust Agreement."
Holders of the Trust Preferred Securities have no preemptive or similar rights.
No BNY Trust may borrow money or issue debt or mortgage or pledge any of its assets.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Company at the same time each BNY Trust issues its Trust Preferred Securities. Each Guarantee is for the benefit of the holders from time to time of such Trust Preferred Securities. Bank One, National Association will act as indenture trustee ("Guarantee Trustee") under each Guarantee for the purposes of compliance with the Trust Indenture Act and each Guarantee will be qualified as an indenture under the Trust Indenture Act. The Guarantee Trustee will hold each Guarantee for the benefit of the holders of the related BNY Trust's Trust Preferred Securities.
This summary of certain terms and provisions of the Guarantees, is not complete. For a complete description you should read each Guarantee. The form of the Guarantee has been filed as an exhibit to the registration statement of which this prospectus forms a part. The Junior Indenture is qualified under the Trust Indenture Act.
When we refer to Trust Preferred Securities we mean the Trust Preferred Securities issued by the related BNY Trust to which a Guarantee relates.
General
The Company will irrevocably and unconditionally agree to pay in full on a subordinated basis, to the extent set forth herein, the Guarantee Payments to the holders of the Trust Preferred Securities, as and when due, regardless of any defense, right of set-off or counterclaim that such BNY Trust may have or assert other than the defense of payment. The following payments or distributions with respect to the Trust Preferred Securities, to the extent not paid by or on behalf of the related BNY Trust (the "Guarantee Payments"), will be subject to the related Guarantee:
(i) any accumulated and unpaid Distributions required to be paid on such Trust Preferred Securities, to the extent that such BNY Trust has funds on hand available therefor at such time,
(ii) the Redemption Price with respect to any Trust Preferred Securities called for redemption, to the extent that such BNY Trust has funds on hand available therefor at such time, or
(iii) upon a voluntary or involuntary dissolution, winding up or liquidation of such BNY Trust (unless the Corresponding Junior Subordinated Debt Securities are distributed to holders of such Trust Preferred Securities in exchange therefor), the lesser of (a) the Liquidation Distribution and (b) the amount of assets of such BNY Trust remaining available for distribution to holders of Trust Preferred Securities after satisfaction of liabilities to creditors of such BNY Trust as required by applicable law.
The Company's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Company to the holders of the applicable Trust Preferred Securities or by causing the BNY Trust to pay such amounts to such holders.
Each Guarantee will be an irrevocable and unconditional guarantee on a subordinated basis of the related BNY Trust's obligations under the Trust Preferred Securities, but will apply only to the extent that such related BNY Trust has funds sufficient to make such payments, and is not a guarantee of collection. See "-- Status of the Guarantees"
If the Company does not make interest payments on the Corresponding Junior Subordinated Debt Securities held by the BNY Trust, the BNY Trust will not be able to pay Distributions on the Trust Preferred Securities and will not have funds legally available therefor. Each Guarantee constitutes an unsecured obligation of the Company and will rank subordinate and junior in right of payment to all Senior Debt of the Company. See "--Status of the Guarantees." Because the Company is a holding company, the right of the Company to participate in any
distribution of assets of any subsidiary upon such subsidiary's liquidation or reorganization or otherwise, is subject to the prior claims of creditors of that subsidiary, except to the extent the Company may itself be recognized as a creditor of that subsidiary. Accordingly, the Company's obligations under the Guarantees will be effectively subordinated to all existing and future liabilities of the Company's subsidiaries, and claimants should look only to the assets of the Company for payments thereunder. See "The Company." Except as otherwise provided in the applicable prospectus supplement, the Guarantees do not limit the incurrence or issuance of other secured or unsecured debt of the Company, including Senior Debt, whether under the Junior Indenture, any other existing indenture or any other indenture that the Company may enter into in the future or otherwise.
The Company has, through the applicable Guarantee, the applicable Trust Agreement, the applicable series of Corresponding Junior Subordinated Debt Securities, the Junior Indenture and the applicable Expense Agreement, taken together, fully, irrevocably and unconditionally guaranteed all of the related BNY Trust's obligations under the related Trust Preferred Securities. No single document standing alone or operating in conjunction with fewer than all of the other documents constitutes such guarantee. It is only the combined operation of these documents that has the effect of providing a full, irrevocable and unconditional guarantee of a BNY Trust's obligations under its related Trust Preferred Securities. See "Relationship Among the Trust Preferred Securities, the Corresponding Junior Subordinated Debt Securities and the Guarantees."
Status of the Guarantees
Each Guarantee will constitute an unsecured obligation of the Company and will rank subordinate and junior in right of payment to all Senior Debt of the Company in the same manner as Corresponding Junior Subordinated Debt Securities.
Each Guarantee will rank equally with all other Guarantees issued by the Company. Each Guarantee will constitute a guarantee of payment and not of collection (i.e., the guaranteed party may institute a legal proceeding directly against the Company to enforce its rights under the Guarantee without first instituting a legal proceeding against any other person or entity). Each Guarantee will be held for the benefit of the holders of the related Trust Preferred Securities. Each Guarantee will not be discharged except by payment of the Guarantee Payments in full to the extent not paid by the BNY Trust or upon distribution to the holders of the Trust Preferred Securities of the Corresponding Junior Subordinated Debt Securities. None of the Guarantees places a limitation on the amount of additional Senior Debt that may be incurred by the Company. The Company expects from time to time to incur additional indebtedness constituting Senior Debt.
Amendments and Assignment
Except with respect to any changes which do not materially adversely affect the material rights of holders of the related Trust Preferred Securities (in which case no vote of the holders will be required), no Guarantee may be amended without the prior approval of the holders of not less than a majority of the aggregate Liquidation Amount of such outstanding Trust Preferred Securities. The manner of obtaining any such approval will be as set forth under "Description of Trust Preferred Securities--Voting Rights; Amendment of Each Trust Agreement." All guarantees and agreements contained in each Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Company and shall inure to the benefit of the holders of the related Trust Preferred Securities then outstanding. The Company may not assign its obligations under the Guarantees except in connection with a consolidation, merger or sale involving the Company that is permitted under the terms of the corresponding Junior Indenture and then only if any such successor or assignee agrees in writing to perform the Company's obligations under the Guarantees.
Events of Default
An event of default under each Guarantee will occur upon the failure of the Company to perform any of its payment obligations thereunder or to perform any non-payment obligations if such non-payment default remains unremedied for 30 days. The holders of not less than a majority in aggregate Liquidation Amount of the related Trust Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of such Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under such Guarantee.
The holders of not less than a majority in aggregate Liquidation Amount of the related Trust Preferred Securities have the right, by vote, to waive any past events of default and its consequences under each Guarantee. If such a waiver occurs, any such event of default will cease to exist and be deemed to have been cured under the terms of the Guarantee.
Any holder of the Trust Preferred Securities may institute a legal proceeding directly against the Company to enforce its rights under such Guarantee without first instituting a legal proceeding against the BNY Trust, the Guarantee Trustee or any other person or entity.
The Company, as guarantor, is required to file annually with the Guarantee Trustee a certificate as to whether or not the Company is in compliance with all the conditions and covenants applicable to it under the Guarantee.
Information Concerning the Guarantee Trustee
The Guarantee Trustee, other than during the occurrence and continuance of a default by the Company in performance of any Guarantee, undertakes to perform only such duties as are specifically set forth in each Guarantee and, after default with respect to any Guarantee, must exercise the same degree of care and skill as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the Guarantee Trustee is under no obligation to exercise any of the powers vested in it by any Guarantee at the request of any holder of any Trust Preferred Securities unless it is offered reasonable indemnity against the costs, expenses and liabilities that might be incurred thereby. However, such a requirement does not relieve the Guarantee Trustee of its obligations to exercise its rights and powers under the Guarantee upon the occurrence of an event of default.
Termination of the Guarantees
Each Guarantee will terminate and be of no further force and effect upon full payment of the Redemption Price of the related Trust Preferred Securities, upon full payment of the amounts payable upon liquidation of the related BNY Trust or upon distribution of Corresponding Junior Subordinated Debt Securities to the holders of the related Trust Preferred Securities in exchange therefor. Each Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any holder of the related Trust Preferred Securities must restore payment of any sums paid under such Trust Preferred Securities or such Guarantee.
Governing Law
Each Guarantee will be governed by and construed in accordance with the laws of the State of New York.
The Expense Agreement
Pursuant to the Expense Agreement that will be entered into by the Company under each Trust Agreement (the "Expense Agreement"), the Company will, as holder of the Trust Common Securities, irrevocably and unconditionally guarantee to each Person or entity to whom the BNY Trust becomes indebted or liable, the full payment of any costs, expenses or liabilities of the BNY Trust, other than obligations of the BNY Trust to pay to the holders of any Trust Preferred Securities or other similar interests in the BNY Trust of the amounts due such holders pursuant to the terms of the Trust Preferred Securities or such other similar interests, as the case may be. The Expense Agreement will be enforceable by third parties.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE CORRESPONDING JUNIOR SUBORDINATED DEBT SECURITIES, THE EXPENSE AGREEMENT AND THE GUARANTEES
This section relates to Junior Subordinated Debt Securities which are issued by a BNY Trust and accordingly are Corresponding Junior Subordinated Debt Securities for a series of Related Trust Preferred Securities.
Full and Unconditional Guarantee
Payments of Distributions and other amounts due on the Trust Preferred Securities (to the extent the related BNY Trust has funds available for the payment of such Distributions) are irrevocably guaranteed by the Company as and to the extent set forth under "Description of Guarantees." Taken together, the Company's obligations under each series of Corresponding Junior Subordinated Debt Securities, the Junior Indenture, the related Trust Agreement, the related Expense Agreement, and the related Guarantee provide, in the aggregate, a full, irrevocable and unconditional guarantee of payments of Distributions and other amounts due on the Related Trust Preferred Securities. No single document standing alone or operating in conjunction with fewer than all of the other documents constitutes such guarantee. It is only the combined operation of these documents that has the effect of providing a full, irrevocable and unconditional guarantee of the related BNY Trust's obligations under the Related Trust Preferred Securities. If and to the extent that the Company does not make payments on any series of Corresponding Junior Subordinated Debt Securities, such BNY Trust will not pay Distributions or other amounts due on its Related Trust Preferred Securities. The Guarantees do not cover payment of Distributions when the related BNY Trust does not have sufficient funds to pay such Distributions. In such event, the remedy of a holder of any Trust Preferred Securities is to institute a legal proceeding directly against the Company pursuant to the terms of the Junior Indenture for enforcement of payment of amounts of such Distributions to such holder after the applicable due dates. The obligations of the Company under each Guarantee are subordinate and junior in right of payment to all Senior Debt of the Company.
Sufficiency of Payments
As long as payments of interest and other payments are made when due on each series of Corresponding Junior Subordinated Debt Securities, such payments will be sufficient to cover Distributions and other payments due on the Related Trust Preferred Securities, primarily because:
(i) the aggregate principal amount of each series of Corresponding Junior Subordinated Debt Securities will be equal to the sum of the aggregate stated Liquidation Amount of the Related Trust Preferred Securities and related Trust Common Securities;
(ii) the interest rate and interest and other payment dates on each series of Corresponding Junior Subordinated Debt Securities will match the Distribution rate and Distribution and other payment dates for the Related Trust Preferred Securities;
(iii) the Company shall pay, under the related Expense Agreement, for all and any costs, expenses and liabilities of such BNY Trust except the BNY Trust's obligations to holders of its Trust Preferred Securities under such Trust Preferred Securities; and
(iv) each Trust Agreement provides that the BNY Trust will not engage in any activity that is not consistent with the limited purposes of such BNY Trust.
Notwithstanding anything to the contrary in the Junior Indenture, the Company has the right to set-off any payment it is otherwise required to make thereunder with and to the extent the Company has theretofore made, or is concurrently on the date of such payment making, a payment under the related Guarantee.
Enforcement Rights of Holders of Trust Preferred Securities
A holder of any related Trust Preferred Security may institute a legal proceeding directly against the Company to enforce its rights under the related Guarantee without first instituting a legal proceeding against the Guarantee Trustee, the related BNY Trust or any other person or entity.
A default or event of default under any Senior Debt of the Company would not constitute a default or Event of Default under the Junior Indenture. However, in the event of payment defaults under, or acceleration of, Senior Debt of the Company, the subordination provisions of the Junior Indenture provide that no payments may be made in respect of the Corresponding Junior Subordinated Debt Securities until such Senior Debt has been paid in full or any payment default thereunder has been cured or waived. Failure to make required payments on any series of Corresponding Junior Subordinated Debt Securities would constitute an Event of Default under the Junior Indenture.
Limited Purpose of BNY Trusts
Each BNY Trust's Trust Preferred Securities evidence a preferred and undivided beneficial interest in such BNY Trust, and each BNY Trust exists for the sole purpose of issuing its Trust Preferred Securities and Trust Common Securities and investing the proceeds thereof in Corresponding Junior Subordinated Debt Securities and engaging in only those other activities necessary or incidental thereto. A principal difference between the rights of a holder of a Trust Preferred Security and a holder of a Corresponding Junior Subordinated Debenture is that a holder of a Corresponding Junior Subordinated Debenture is entitled to receive from the Company the principal amount of and interest accrued on Corresponding Junior Subordinated Debt Securities held, while a holder of Trust Preferred Securities is entitled to receive Distributions from such BNY Trust (or from the Company under the applicable Guarantee) if and to the extent such BNY Trust has funds available for the payment of such Distributions.
Rights Upon Termination
Upon any voluntary or involuntary termination, winding-up or liquidation of any BNY Trust not involving the distribution of the Corresponding Junior Subordinated Debt Securities, the holders of the related Trust Preferred Securities will be entitled to receive, out of the assets held by such BNY Trust, the Liquidation Distribution in cash. See "Description of Trust Preferred Securities--Liquidation Distribution Upon Termination." Upon any voluntary or involuntary liquidation or bankruptcy of the Company, the Property Trustee, as holder of the Corresponding Junior Subordinated Debt Securities, would be a subordinated creditor of the Company, subordinated in right of payment to all Senior Debt as set forth in the Junior Indenture, but entitled to receive payment in full of principal and interest, before any stockholders of the Company receive payments or distributions. Since the Company is the guarantor under each Guarantee and has agreed, under the related Expense Agreement, to pay for all costs, expenses and liabilities of each BNY Trust (other than the BNY Trust's obligations to the holders of its Trust Preferred Securities), the positions of a holder of such Trust Preferred Securities and a holder of such Corresponding Junior Subordinated Debt Securities relative to other creditors and to stockholders of the Company in the event of liquidation or bankruptcy of the Company are expected to be substantially the same.
DESCRIPTION OF PREFERRED STOCK
Summary
The following summary contains a description of certain general terms of the Preferred Stock. The particular terms of any series of preferred stock being offered by us under this shelf registration (the "Preferred Stock") will be described in the prospectus supplement relating to that series of Preferred Stock. Those terms may include:
. the specific title and stated value,
. number of shares or fractional interests therein,
. any dividend, liquidation, redemption, voting and other rights,
. the terms for conversion into Common Stock or other preferred stock or for exchange for Common Stock or other Debt Securities,
. the securities exchanges, if any, on which such Preferred Stock is to be listed,
. the initial public offering price, and the number of shares, if any, to be purchased by the underwriters.
The terms of any series of Preferred Stock being offered may differ from the terms set forth below. If the terms differ, those terms will also be disclosed in the prospectus supplement relating to that series of Preferred Stock. The following summary is not complete. You should refer to the Certificate of Amendment to the Company's Certificate of Incorporation relating to the series of the Preferred Stock for the complete terms of that Preferred Stock. That Certificate of Amendment will be filed with the SEC promptly after the offering of the Preferred Stock.
General
Under the Company's Certificate of Incorporation, the Board of Directors of the Company is authorized, without further stockholder action, to provide for the issuance of up to 5,000,000 shares of Preferred Stock, without par value, (the "No Par Preferred Stock") and 5,000,000 shares of Class A Preferred Stock, par value $2.00 per share (the "Class A Preferred Stock" and together with the No Par Preferred Stock, being collectively referred to as the "Preferred Stock"). The Preferred Stock may be issued in one or more series, with such designations of titles; dividend rates; special or relative rights in the event of liquidation, distribution or sale of assets or dissolution or winding up of the Company; any sinking fund provisions; any redemption or purchase account provisions; any conversion provisions; and any voting rights thereof, as shall be set forth as and when established by the Board of Directors of the Company. The shares of any series of Preferred Stock will be, when issued, fully paid and non-assessable and holders thereof will have no preemptive rights in connection therewith.
The liquidation preference of any series of Preferred Stock is not necessarily indicative of the price at which shares of such series of Preferred Stock will actually trade at or after the time of their issuance. The market price of any series of Preferred Stock can be expected to fluctuate with changes in market and economic conditions, the financial condition and prospects of the Company and other factors that generally influence the market prices of securities.
Rank
Any series of the No Par Preferred Stock or Class A Preferred Stock will, with respect to dividend rights and rights on liquidation, winding up and dissolution rank (i) senior to all classes of common stock of the Company and with all equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank junior to the No Par Preferred Stock or Class A Preferred Stock, as the case may be (collectively referred to as the "Junior Securities"); (ii) on a parity with all equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank on a parity with the No Par Preferred Stock or Class A Preferred Stock, as the case may be, including the Company's 7.75% Cumulative Convertible Preferred Stock (collectively referred to as the "Parity Securities"); and (iii) junior to all equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank senior to the No Par Preferred Stock or Class A Preferred Stock, as the case may be (collectively referred to as the "Senior Securities"). All shares of No Par Preferred Stock and Class A Preferred Stock will, regardless of series, be of equal rank. As used in any Certificate of Amendment for these purposes, the term "equity securities" will not include debt securities convertible into or exchangeable for equity securities.
Dividends
Holders of each series of Preferred Stock will be entitled to receive, when, as and if declared by the Board of Directors of the Company out of funds legally available therefor, cash dividends at such rates and on such dates as are set forth in the prospectus supplement relating to such series of Preferred Stock. Dividends will be payable to holders of record of Preferred Stock as they appear on the books of the Company (or, if applicable, the records of the Depositary referred to below under "Description of Depositary Shares") on such record dates as shall be fixed by the Board of Directors. Dividends on any series of Preferred Stock may be cumulative or non-cumulative.
The Company's ability to pay dividends on its Preferred Stock is subject to policies established by the Federal Reserve Board and under the New York Banking Law. See "Certain Regulatory Considerations--Dividends."
No full dividends may be declared or paid or funds set apart for the payment of dividends on any Parity Securities unless dividends shall have been paid or set apart for such payment on the No Par Preferred Stock and Class A Preferred Stock. If full dividends are not so paid, the No Par Preferred Stock and Class A Preferred Stock shall share dividends pro rata with the Parity Securities.
Conversion
The prospectus supplement for any series of Preferred Stock will state the terms, if any, on which shares of that series are convertible into shares of another series of Preferred Stock or Common Stock.
For any series of Preferred Stock which is convertible, the Company shall at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued No Par Preferred Stock or Class A Preferred Stock, as the case may be, or Common Stock or shares held in its treasury or both, for the purpose of effecting the conversion of the shares of such series of Preferred Stock, the full number of shares of No Par Preferred Stock, Class A Preferred Stock or Common Stock, as the case may be, then deliverable upon the conversion of all outstanding shares of such series.
No fractional shares or scrip representing fractional shares of Preferred Stock or Common Stock will be issued upon the conversion of shares of any series of convertible Preferred Stock. Each holder to whom fractional shares would otherwise be issued will instead be entitled to receive, at the Company's election, either (a) a cash payment equal to the current market price of such holder's fractional interest or (b) a cash payment equal to such holder's proportionate interest in the net proceeds (following the deduction of applicable transaction costs) from the sale promptly by an agent, on behalf of such holders, of shares of Preferred Stock or Common Stock representing the aggregate of such fractional shares.
The holders of any series of shares of Preferred Stock at the close of business on a dividend payment record date will be entitled to receive the dividend payable on such shares (except that holders of shares called for redemption on a redemption date occurring between such record date and the dividend payment date shall not be entitled to receive such dividend on such dividend payment date but instead will receive accrued and unpaid dividends to such redemption date) on the corresponding dividend payment date notwithstanding the conversion thereof or the Company's default in payment of the dividend due. Except as provided above, the Company will make no payment or allowance for unpaid dividends, whether or not in arrears, on converted shares or for dividends on the shares of No Par Preferred Stock, Class A Preferred Stock or Common Stock issued upon conversion.
Exchangeability
The holders of shares of Preferred Stock of any series may be obligated at any time or at maturity to exchange such shares for Common Stock or debt securities of the Company. The terms of any such exchange and any such debt securities will be described in the prospectus supplement relating to such series of Preferred Stock.
Redemption
A series of Preferred Stock may be redeemable at any time, in whole or in part, at the option of the Company or the holder thereof upon terms and at the redemption prices set forth in the prospectus supplement relating to such series.
In the event of partial redemptions of Preferred Stock, whether by mandatory or optional redemption, the shares to be redeemed will be determined by lot or pro rata, as may be determined by the Board of Directors of the Company or by any other method determined to be equitable by the Board of Directors.
On and after a redemption date, unless the Company defaults in the payment of the redemption price, dividends will cease to accrue on shares of Preferred Stock called for redemption and all rights of holders of such shares will terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies, except in certain narrowly defined circumstances, may not exercise any option to redeem shares of preferred stock included as Tier 1 Capital without the prior approval of the Federal Reserve. Ordinarily, the Federal Reserve Board would not permit such a redemption unless (1) the shares are redeemed with the proceeds of a sale by the bank holding company of common stock or perpetual preferred stock or (2) the Federal Reserve determines that the bank holding company's condition and circumstances warrant the reduction of a source of permanent capital.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, holders of each series of Preferred Stock that ranks senior to the Junior Securities will be entitled to receive out of assets of the
Company available for distribution to shareholders, before any distribution is made on any Junior Securities, including Common Stock, distributions upon liquidation in the amount set forth in the prospectus supplement relating to such series of Preferred Stock, plus an amount equal to any accrued and unpaid dividends. If upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, the amounts payable with respect to the Preferred Stock of any series and any other Parity Securities are not paid in full, the holders of the Preferred Stock of such series and the Parity Securities will share ratably in any such distribution of assets of the Company in proportion to the full liquidation preferences to which each is entitled. After payment of the full amount of the liquidation preference to which they are entitled, the holders of such series of Preferred Stock will not be entitled to any further participation in any distribution of assets of the Company.
Voting Rights
Except as indicated below or in the prospectus supplement relating to a particular series of Preferred Stock or except as expressly required by applicable law, the holders of shares of Preferred Stock will have no voting rights.
Under regulations adopted by the Federal Reserve, if the holders of shares
of any series of Preferred Stock of the Company become entitled to vote for the
election of directors, such series may then be deemed a "class of voting
securities" and a holder of 25% or more of such series (or a holder of 5% if it
otherwise exercises a "controlling influence" over the Company) may then be
subject to regulation as a bank holding company in accordance with the BHC Act.
In addition, at such time as such series is deemed a class of voting securities,
(i) any other bank holding company may be required to obtain the approval of the
Federal Reserve Board to acquire or retain 5% or more of such series, and (ii)
any person other than a bank holding company may be required to file with the
Federal Reserve Board under the Change in Bank Control Act, a federal law, to
acquire or retain 10% or more of such series.
Preferred Stock outstanding
As of the date hereof, the Company has issued and outstanding no shares of No Par Preferred Stock and 16,320 shares of Class A Preferred Stock with an aggregate liquidation preference of $.4 million. The 7.75% Cumulative Convertible Preferred Stock (16,320 shares) is the only series of Class A Preferred Stock outstanding. The shares of outstanding Class A Preferred Stock are fully paid and non-assessable. The Company has also authorized a series of No Par Preferred Stock in connection with its preferred stock purchase rights plan. See "Description of Preferred Stock Purchase Rights."
Holders of shares of 7.75% Cumulative Convertible Preferred Stock are entitled to cumulative dividends, when declared by the Company's Board of Directors.
In the event of any voluntary or involuntary liquidation, distribution or sale of assets, dissolution, or winding up of the Company, the holder of a share of outstanding Preferred Stock will be entitled to receive prior to any payment upon the Company's Common Stock, cash in the amount of $25 in the case of the 7.75% Cumulative Convertible Preferred Stock.
Holders of 7.75% Cumulative Convertible Preferred Stock have no general voting rights but have the right to vote in certain events. When an amount equal to at least six quarterly dividends payable on the 7.75% Cumulative Convertible Preferred Stock is in arrears, the number of directors of the Company will be increased by two and the holders of 7.75% Cumulative Convertible Preferred Stock, voting separately as a class with the holders of any one or more other series of Preferred Stock of the Company ranking on a parity with the 7.75% Cumulative Convertible Preferred Stock either as to payment of dividends or upon liquidation, dissolution or winding up and upon which like voting rights have been conferred and are exercisable, will be entitled at the next annual meeting of shareholders of the Company and each subsequent annual meeting of shareholders to elect two directors to fill such vacancies. In each case, such right shall continue until there are no dividends in arrears upon the Company's No Par Preferred Stock or Class A Preferred Stock.
The 7.75% Cumulative Convertible Preferred Stock is redeemable at any time at the option of the Company and is convertible at any time into Common Stock at the option of the holders. The conversion rights of the 7.75% Cumulative Convertible Preferred Stock will terminate at the close of business on the tenth day preceding the date fixed for redemption of shares of such series.
The Bank of New York is the Transfer Agent, Registrar and Dividend Disbursement Agent for the Company's No Par Preferred Stock and Class A Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
The following summary is not complete. You should refer to the applicable provisions of the forms of the Company's Deposit Agreement and Depositary Receipt relating to the Preferred Stock for a complete statement of the terms and rights of the Depositary Shares. These documents are incorporated by reference and have been filed with the SEC in Amendment No. 1 to the Company's Registration Statement on Form S-3 (No. 33-51984).
General
The Company may, at its option, elect to offer fractional shares of Preferred Stock, rather than full shares of Preferred Stock. In the event such option is exercised, the Company will issue Depositary Receipts, each of which will represent a fraction (to be set forth in the prospectus supplement relating to a particular series of Preferred Stock) of a share of a particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary Shares will be deposited under a Deposit Agreement (the "Deposit Agreement") between the Company and a bank or trust company selected by the Company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000 (the "Depositary"). Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, redemption, conversion and liquidation rights).
Depositary Shares will be evidenced by depositary receipts issued pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary Receipts will be distributed to those persons purchasing the fractional shares of Preferred Stock in accordance with the terms of the offering.
Pending the preparation of definitive Depositary Receipts, the Depositary may, upon the written order of the Company or any holder of deposited Preferred Stock, execute and deliver temporary Depositary Receipts which are substantially identical to, and entitle the holders thereof to all the rights pertaining to, the definitive Depositary Receipts. Definitive Depositary Receipts will be prepared thereafter without unreasonable delay, and temporary Depositary Receipts will be exchangeable for definitive Depositary Receipts at the Company's expense.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash distributions received in respect of the deposited Preferred Stock to the record holders of Depositary Shares relating to such Preferred Stock in proportion to the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will distribute property received by it to the record holders of Depositary Shares entitled thereto. If the Depositary determines that it is not feasible to make such distribution, it may, with the approval of the Company, sell such property and distribute the net proceeds from such sale to such holders.
Redemption or Exchange of Stock
If a series of Preferred Stock represented by Depositary Shares is to be redeemed or exchanged, the Depositary Shares will be redeemed from the proceeds received by the Depositary resulting from the redemption, in whole or in part, of such series of Preferred Stock held by the Depositary, or exchanged for the Common Stock or debt securities to be issued in exchange for the Preferred Stock (as the case may be, in accordance with the terms of such series of Preferred Stock). The Depositary Shares will be redeemed or exchanged by the Depositary at a price per Depositary Share equal to the applicable fraction of the redemption price per share or market value of Common Stock or debt
securities per Depositary Share paid in respect of the shares of Preferred Stock so redeemed or exchanged. Whenever the Company redeems or exchanges shares of Preferred Stock held by the Depositary, the Depositary will redeem or exchange as of the same date the number of Depositary Shares representing shares of Preferred Stock so redeemed or exchanged. If fewer than all the Depositary Shares are to be redeemed or exchanged, the Depositary Shares to be redeemed or exchanged will be selected by the Depositary by lot or pro rata or by any other equitable method as may be determined by the Company.
Withdrawal of Stock
Any holder of Depositary Shares may, upon surrender of the Depositary Receipts at the corporate trust office of the Depositary (unless the related Depositary Shares have previously been called for redemption), receive the number of whole shares of the related series of Preferred Stock and any money or other property represented by such Depositary Receipts. Holders of Depositary Shares making such withdrawals will be entitled to receive whole shares of Preferred Stock on the basis set forth in the related prospectus supplement for such series of Preferred Stock, but holders of such whole shares of Preferred Stock will not thereafter be entitled to deposit such Preferred Stock under the Deposit Agreement or to receive Depositary Receipts therefor. If the Depositary Shares surrendered by the holder in connection with such withdrawal exceed the number of Depositary Shares that represent the number of whole shares of Preferred Stock to be withdrawn, the Depositary will deliver to such holder at the same time a new Depositary Receipt evidencing such excess number of Depositary Shares.
Voting Deposited Preferred Stock
Upon receipt of notice of any meeting at which the holders of any series of deposited Preferred Stock are entitled to vote, the Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such series of Preferred Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the relevant series of Preferred Stock) will be entitled to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of the Preferred Stock represented by such holder's Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the amount of such series of Preferred Stock represented by such Depositary Shares in accordance with such instructions, and the Company will agree to take all reasonable actions which may be deemed necessary by the Depositary in order to enable the Depositary to do so. The Depositary will abstain from voting shares of the Preferred Stock to the extent it does not receive specific instructions from the holder of Depositary Shares representing such Preferred Stock.
Conversion Rights
Any holder of Depositary Shares, upon surrender of the Depositary Receipts therefor and delivery of instructions to the Depositary, may cause the Company to convert any specified number of whole or fractional shares of Preferred Stock represented by the Depositary Shares into the number of whole shares of Common Stock or Preferred Stock (as the case may be, in accordance with the terms of such series of the Preferred Stock) of the Company obtained by dividing the aggregate liquidation preference of such Depositary Shares by the Conversion Price (as such term is defined in the Certificate of Amendment) then in effect, as such Conversion Price may be adjusted by the Company from time to time as provided in the Certificate of Amendment. In the event that a holder delivers Depositary Receipts to the Depositary for conversion which in the aggregate are convertible either into less than one whole share of such Common Stock or Preferred Stock or into any number of whole shares of such Common Stock or Preferred Stock plus an excess constituting less than one whole share of such Common Stock or Preferred Stock, the holder shall receive payment in lieu of such fractional share.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any time be amended by agreement between the Company and the Depositary. However, any amendment which materially and adversely alters the rights of the holders of Depositary Shares representing Preferred Stock of any series will not be effective unless such amendment has been approved by the holders of at least 66 2/3% of the Depositary Shares then outstanding representing Preferred Stock of such series. Every holder of an outstanding
Depositary Receipt at the time any such amendment becomes effective, or any transferee of such holder, shall be deemed, by continuing to hold such Depositary Receipt, or by reason of the acquisition thereof, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. The Deposit Agreement automatically terminates if (i) all outstanding Depositary Shares have been redeemed; or (ii) each share of Preferred Stock has been converted into Common Stock or Preferred Stock or has been exchanged for Common Stock or debt securities; or (iii) there has been a final distribution in respect of the Preferred Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of Depositary Shares.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company will pay all charges of the Depositary in connection with the initial deposit of the relevant series of Preferred Stock and any redemption or exchange of such Preferred Stock. Holders of Depositary Receipts will pay other transfer and other taxes and governmental charges and such other charges or expenses as are expressly provided in the Deposit Agreement to be for their accounts.
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering to the Company notice of its election to do so, and the Company may at any time remove the Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Such successor Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000.
Miscellaneous
The Depositary will forward all reports and communications from the Company which are delivered to the Depositary and which the Company is required to furnish to the holders of the deposited Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or delayed by law or any circumstance beyond its control in performing its obligations under the Deposit Agreement. The obligations of the Company and the Depositary under the Deposit Agreement will be limited to performance in good faith of their duties thereunder and they will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares, Depositary Receipts or shares of Preferred Stock unless satisfactory indemnity is furnished. They may rely upon written advice of counsel or accountants, or upon information provided by holders of Depositary Receipts or other persons believed to be competent and on documents believed to be genuine.
DESCRIPTION OF COMMON STOCK
The following summary is not complete. You should refer to the applicable provisions of the Company's Restated Certificate of Incorporation pursuant to which the outstanding series of preferred stock were issued, and to the New York Business Corporation Law for a complete statement of the terms and rights of the Common Stock.
The Company is authorized to issue 2,400,000,000 shares of Common Stock, par value $7.50 per share. As of May 31, 2001, 736,521,806 shares of Common Stock were outstanding. The Common Stock is listed on the New York Stock Exchange. Its symbol is BK.
Dividends--The holders of the Common Stock of the Company are entitled to receive dividends, when, as and if declared by the Board of Directors out of any funds legally available therefor.
The Company's ability to pay dividends on its Common Stock is subject to policies established by the Federal Reserve Board and under the New York Banking Law. See "Certain Regulatory Considerations--Dividends."
Voting--Holders of Common Stock are entitled to one vote for each share held on all matters as to which shareholders are entitled to vote. The holders of the Common Stock do not have cumulative voting rights.
Liquidation Rights--Upon liquidation of the Company, holders of Common Stock are entitled to receive pro rata the net assets of the Company after satisfaction in full of the prior rights of creditors (including holders of the Company's Debt Securities) of the Company and holders of any preferred stock. The principal source of funds for payment of dividends by the Company is dividends paid by its subsidiary banks. See "Certain Regulatory Considerations-- Dividends."
Miscellaneous--Holders of Common Stock do not have any preferential or preemptive right with respect to any securities of the Company or any conversion rights. The Common Stock is not subject to redemption. The outstanding shares of Common Stock are fully paid and non-assessable.
The Bank of New York is the Transfer Agent, Registrar and Dividend Disbursement Agent for the Common Stock of the Company.
The New York Business Corporation Law restricts certain business combinations. The statute prohibits certain New York corporations from engaging in a merger or other business combination with a holder of 20% or more of the corporation's outstanding voting stock ("acquiring person") for a period of five years following acquisition of the stock unless the merger or other business combination, or the acquisition of the stock, is approved by the corporation's board of directors prior to the date of the stock acquisition. The statute also prohibits consummation of such a merger or other business combination at any time unless the transaction has been approved by the corporation's board of directors or by a majority of the outstanding voting stock not beneficially owned by the acquiring person or certain "fair price" conditions have been met. Under the provisions of the statute, the Company may amend its by-laws by a vote of the shareholders to elect not to be governed by this statute. As of the date of this prospectus, the by-laws of the Company have not been so amended.
DESCRIPTION OF PREFERRED STOCK PURCHASE RIGHTS
The following summary is not complete. You should refer to Rights Agreement, dated as of December 10, 1985, and amended as of June 13, 1989, April 30, 1993, and March 8, 1994 (as amended, the "Rights Agreement"), between the Company and The Bank of New York, as Rights Agent for a complete statement of the terms and rights of the Preferred Stock Purchase Rights.
The Rights Agreement is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part. A copy of the Rights Agreement can be obtained as described under "Available Information" or by writing to the Rights Agent: The Bank of New York, 101 Barclay Street, New York, New York 10007, Attention: Shareholder Relations Department-11th Floor.
On December 10, 1985, the Company adopted a preferred stock purchase rights plan. This plan was amended as of June 13, 1989, April 30, 1993 and March 8, 1994. The entire plan, as amended is also referred to as the "Plan". Under the Plan the Company declared a dividend of one right (a "Right" and, collectively, the "Rights") for each outstanding share of Common Stock.
As of the date of this prospectus the Rights are not represented by separate certificates. Instead, each share of Common Stock also represents a Right.
When the dividend of one Right per share was declared it was declared on shares of Common Stock that were then outstanding as well as shares of Common Stock that would be issued by the Company thereafter, but before the Separation Date. Anyone who acquires shares of Common Stock, before the Separation Date, issued upon conversion of or exchange for any shares of Preferred Stock will receive one Right for each share of Common Stock.
Subject to adjustment upon the occurrence of certain events described below, each Right may be exercised by the holder thereof to purchase one/one- thousandth of a share of a new series of the Company's No Par Preferred Stock (the "Purchase Rights Preferred Stock") for $200 (the "Exercise Price"), 10 days after the earliest of:
(i) the date of public announcement that a person or group (an "Acquiring Person") has acquired 20% or more of the Company's Common Stock,
(ii) the date of approval under the BHC Act or the date of notice of nondisapproval under the Change in Bank Control Act for any person to acquire 25% or more of the outstanding shares of the Company's Common Stock and
(iii) the date of commencement of or first public announcement of the intent of any person to commence a tender or exchange offer to acquire 25% or more of the outstanding shares of the Company's Common Stock. The first date on which the right to purchase the Purchase Rights Preferred Stock could be exercised is referred to herein as the Separation Date.
The Exercise Price, the number of Rights outstanding and the Redemption Price will be adjusted in the event
(i) of a stock dividend on, or subdivision or combination of, the Common Stock or
(ii) that the Company issues in a reclassification, merger or consolidation any shares of capital stock in respect of or in lieu of existing Common Stock.
If there is a merger or other business combination between the Company and an Acquiring Person, or if certain other events occur involving an Acquiring Person, each Right (if not previously exercised) would entitle the holder to purchase $200 in market value of the Acquiring Person's stock (or, in certain events, the stock of another company) for $100.
In addition, if a Separation Date occurs other than as a result of a merger, business combination or other event referred to above and a person or group acquires 20% or more of the outstanding shares of the Common Stock, each Right (if not previously exercised and other than Rights beneficially owned by an Acquiring Person) would entitle the holder to purchase $200 in market value of the Company's Common Stock for $100.
Prior to the Separation Date, the Rights cannot be transferred apart from the Common Stock and are represented solely by the Common Stock certificates. If the Separation Date occurs, separate certificates representing the Rights will be mailed to holders of the Common Stock as of such date, and the Rights could then begin to trade separately from the Common Stock.
The Rights are redeemable by the Company at $.05 per Right (the "Redemption Price"), subject to adjustment upon the occurrence of certain events, at any time prior to the occurrence of the Separation Date. The Rights will expire on the earliest of (i) the time at which the Rights are exchanged for Common Stock or Purchase Rights Preferred Stock as described herein, (ii) the time at which the Rights are redeemed as described herein, and (iii) the close of business on March 7, 2004.
The Rights do not have any voting rights and are not entitled to dividends. The terms of the Rights may be amended without the consent of the holders, provided the amendment does not adversely affect the interests of the holders.
Each share of Purchase Rights Preferred Stock will have a liquidation preference of $200,000 ($200 for every one/one-thousandth of a share of Purchase Rights Preferred Stock) and have a dividend rate equal to the dividends on 1,000 shares of Common Stock. The Purchase Rights Preferred Stock will have no sinking fund, but is redeemable at the option of the Company two years after the Separation Date at the liquidation preference per share. The Purchase Rights Preferred Stock will have certain limited voting rights.
The Rights may have certain anti-takeover effects. The Rights may cause substantial dilution to an Acquiring Person if it attempts to merge with, or engage in certain other transactions with, the Company. The Rights should
not, however, interfere with any merger or other business combination approved by the Company's Board of Directors prior to the occurrence of a Separation Date because the Rights may be redeemed prior to such time.
BOOK-ENTRY ISSUANCE
If any Debt Securities or Trust Preferred Securities (collectively, "Book Entry Securities") are to be represented by global certificates, The Depository Trust Company ("DTC") will act as securities depositary for all of the Book Entry Securities, unless otherwise referred to in the prospectus supplement relating to an offering of the particular series of Book Entry Securities.
The following is a summary of the depository arrangements applicable to such securities issued in global form and for which DTC acts as depositary. If there are any changes from this summary they will appear in a prospectus supplement.
If any securities are to be issued in global form, you will not receive a paper certificate representing the Debt Securities you have purchased. Instead the Company will deposit with DTC or its custodian one or more fully-registered global certificates ("Global Certificates") registered in the name of Cede & Co. (DTC's nominee) for the Book Entry Securities, representing in the aggregate the total number of a BNY Trust's Trust Preferred Securities, aggregate principal balance of Junior Subordinated Debt Securities or aggregate principal amount of Debt Securities, respectively.
Since the Global Certificate is registered in the name of DTC or its nominee, DTC or its nominee is said to have legal or record ownership of the Global Certificate. Persons who buy interests in the Global Security by purchasing securities are said to own a beneficial interest in the Global Security.
Only institutions (sometimes referred to as "participants") that have accounts with DTC or its nominee or persons that may hold interests through participants, such as individual members of the public, may own beneficial interests in a Global Certificate.
Ownership of beneficial interests in a Global Certificate by participants will be evidenced only by, and the transfer of that ownership interest will be effected only through, records maintained by DTC or its nominee.
Ownership of beneficial interests in a Global Certificate by persons that hold through participants will be evidenced only by, and the transfer of that ownership interest within that participant will be effected only through, records maintained by that participant.
DTC has no knowledge of the actual beneficial owners of the Book-Entry Securities. Beneficial owners will not receive written confirmation from DTC of their purchase, but beneficial owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the participants through which the beneficial owners purchased the securities.
DTC alone is responsible for any aspect of its records, any nominee or any participant relating to, or payments made on account of, beneficial interests in a Global Certificate or for maintaining, supervising or reviewing any of the records of DTC, any nominee or any participant relating to such beneficial interests.
The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in definitive form. Such laws may impair the ability to transfer beneficial interests in a Global Certificate.
We have been advised by DTC that upon the issuance of a Global Certificate and the deposit of that Global Certificate with DTC, DTC will immediately credit, on its book-entry registration and transfer system, the respective principal amounts represented by that Global Certificate to the accounts of its participants.
The Company will pay principal of, and interest or premium on, securities represented by a Global Certificate registered in the name of or held by DTC or its nominee to the relevant Trustee who in turn will make payments to DTC or its nominee, as the case may be, as the registered owner and holder of the Global Certificate representing
those securities in immediately available funds. We have been advised by DTC that upon receipt of any payment of principal of, or interest or premium on, a Global Certificate, DTC will immediately credit, on its book-entry registration and transfer system, accounts of participants with payments in amounts proportionate to their respective beneficial interests in the principal amount of that Global Certificate as shown in the records of DTC. Payments by participants to owners of beneficial interests in a Global Certificate held through those participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in "street name", and will be the sole responsibility of those participants, subject to any statutory or regulatory requirements as may be in effect from time to time.
A Global Certificate is exchangeable for definitive securities (paper certificates) registered in the name of, and a transfer of a Global Certificate may be registered to, any person other than DTC or its nominee, only if:
(a) DTC notifies us that it is unwilling or unable to continue as depositary for that Global Certificate or if at any time DTC ceases to be registered under the Exchange Act;
(b) we determine in our discretion that the Global Certificate shall be exchangeable for definitive securities in registered form; or
(c) in the case of Debt Securities, there shall have occurred and be continuing an Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default with respect to the Debt Securities.
Any Global Certificate representing a Debt Security that is exchangeable pursuant to the preceding paragraph will be exchangeable in whole for definitive Debt Securities in registered form, of like tenor and of an equal aggregate principal amount as the Global Certificate, in denominations specified in the applicable prospectus supplement (if other than $1,000 and integral multiples of $1,000). The definitive Debt Securities will be registered by the registrar in the name or names instructed by DTC. We expect that such instructions may be based upon directions received by DTC from its participants with respect to ownership of beneficial interests in the Global Certificate. Unless otherwise indicated in a prospectus supplement any principal, premium and interest will be payable, the transfer of the definitive Debt Securities will be registerable and the definitive Debt Securities will be exchangeable at the corporate trust office of The Bank of New York in the Borough of Manhattan, The City of New York, provided that payment of interest may be made at the option of the Company by check mailed to the address of the person entitled to that interest payment as of the record date and as shown on the register for the Debt Securities.
Any Global Certificate representing a Trust Preferred Security that is exchangeable pursuant to (a) or (b) above will be exchangeable in whole for definitive Trust Preferred Securities in registered form, of like tenor and of an equal aggregate principal amount as the Global Certificate, in denominations specified in the applicable prospectus supplement (if other than $25.00 and integral multiples of $25.00). The definitive Trust Preferred Securities will be registered by the registrar in the name or names instructed by DTC. We expect that such instructions may be based upon directions received by DTC from its participants with respect to ownership of beneficial interests in the Global Certificate. Any Distributions and other payments will be payable, the transfer of the definitive Trust Preferred Securities will be registerable and the definitive Trust Preferred Securities will be exchangeable at the corporate trust office of The Bank of New York in the Borough of Manhattan, The City of New York, provided that such payment may be made at the option of the Company by check mailed to the address of the person entitled to that payment as of the record date and as shown on the register for the Trust Preferred Securities.
DTC may discontinue providing its services as securities depositary with respect to any of the Book Entry Securities at any time by giving reasonable notice to the relevant Trustee and the Company. In the event that a successor securities depositary is not obtained, definitive Debt Security or Trust Preferred Security or certificates representing such Debt Security or Trust Preferred Security are required to be printed and delivered. The Company, at its option, may decide to discontinue use of the system of book-entry transfers through DTC (or a successor depositary). After an Event of Default under the applicable Indenture, the holders of a majority in liquidation amount of Trust Preferred Securities or aggregate principal amount of Debt Securities may determine to discontinue the system of book-entry transfers through DTC. In any such event, definitive certificates for such Trust Preferred Securities or Debt Securities will be printed and delivered.
Except as provided above, owners of the beneficial interests in a Global Security will not be entitled to receive physical delivery of Debt Securities in definitive form and will not be considered the holders of securities for any purpose under the Indentures, and no Global Security shall be exchangeable except for another Global Security of like denomination and tenor to be registered in the name of DTC or its nominee. Accordingly, each person owning a beneficial interest in a Global Security must rely on the procedures of DTC and, if that person is not a participant, on the procedures of the participant through which that person owns its interest, to exercise any rights of a holder under the Global Security or the Indentures.
Redemption notices will be sent to Cede & Co. as the registered holder of the Book Entry Securities. If less than all of a series of the Debt Securities or a BNY Trust's Trust Securities are being redeemed, DTC will determine the amount of the interest of each direct participant to be redeemed in accordance with its then current procedures.
Although voting with respect to the Book Entry Securities is limited to the holders of record of the Book Entry Securities, in those instances in which a vote is required, neither DTC nor Cede & Co. will itself consent or vote with respect to Book Entry Securities. Under its usual procedures, DTC would mail an omnibus proxy (the "Omnibus Proxy") to the relevant Trustee as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those direct participants to whose accounts such Book Entry Securities are credited on the record date (identified in a listing attached to the Omnibus Proxy).
DTC has advised us that DTC is a limited purpose trust company organized under the laws of the State of New York, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered under the Exchange Act. DTC was created to hold securities of its participants and to facilitate the clearance and settlement of securities transactions among its participants in such securities through electronic book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTC's participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is owned by a number of its participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National Association of Securities Dealers, Inc. Access to DTC's book-entry system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
The information in this section concerning DTC and DTC's book-entry system has been obtained from sources that the BNY Trusts and the Company believe to be accurate, but the BNY Trusts and the Company assume no responsibility for the accuracy thereof. Neither the BNY Trusts nor the Company has any responsibility for the performance by DTC or its Participants of their respective obligations as described herein or under the rules and procedures governing their respective operations.
VALIDITY OF SECURITIES
Unless otherwise indicated below or in the applicable prospectus supplement, the validity of the securities will be passed upon for the Company by Paul A. Immerman, Senior Counsel of The Bank of New York and for the underwriters by Pillsbury Winthrop LLP, One Battery Park Plaza, New York, New York 10004. Pillsbury Winthrop LLP from time to time performs legal services for the Company and its affiliates.
Unless otherwise indicated in the applicable prospectus supplement, certain matters of Delaware law relating to the validity of the Trust Preferred Securities, the enforceability of the Trust Agreements and the formation of the BNY Trusts will be passed upon by Pepper Hamilton LLP, 1201 Market Street, Wilmington, Delaware 19899, special Delaware counsel to the Company and the BNY Trusts.
Unless otherwise indicated in the applicable prospectus supplement, the validity of the Guarantees and the Junior Subordinated Securities will be passed upon for the Company by Sullivan & Cromwell, 125 Broad Street, New York, New York 10004.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2000, as set forth in their report, which is incorporated in this prospectus by reference. Such consolidated financial statements are incorporated by reference in reliance on their report given on their authority as experts in accounting and auditing.
PLAN OF DISTRIBUTION
Securities offered by the Company and each BNY Trust
The securities to be offered by the Company and each BNY Trust may be sold in a public offering to or through agents, underwriters or dealers designated from time to time or directly to purchasers. The Company and each BNY Trust may sell its securities as soon as practicable after effectiveness of the registration statement of which this prospectus forms a part. The names of any underwriters or dealers involved in the sale of the securities in respect of which this prospectus is delivered, the amount or number of securities to be purchased by any such underwriters and any applicable commissions or discounts will be set forth in the applicable prospectus supplement.
Underwriters may offer and sell securities at a fixed price or prices, which may be changed, or from time to time at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. In connection with the sale of Debt Securities and Trust Preferred Securities, underwriters may be deemed to have received compensation from the Company and/or the applicable BNY Trust in the form of underwriting discounts or commissions and may also receive commissions. Underwriters may sell securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters.
Any underwriters utilized may engage in stabilizing transactions and syndicate covering transactions in accordance with Rule 104 under the Exchange Act. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate covering transactions involve purchases of the securities in the open market after the distribution has been completed in order to cover syndicate short positions. Such stabilizing transactions and syndicate covering transactions may cause the price of the securities to be higher than it would otherwise be in the absence of such transactions.
Any underwriting compensation paid by the Company and/or the applicable BNY Trust to underwriters in connection with the offering of securities, and any discounts, concessions or commissions allowed by such underwriters to participating dealers, will be described in an accompanying prospectus supplement. Underwriters and dealers participating in the distribution of securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of such securities may be deemed to be underwriting discounts and commissions, under the Securities Act. Underwriters and dealers may be entitled under agreements with the Company and a BNY Trust, to indemnification against and contribution toward certain civil liabilities, including liabilities under the Securities Act, and to reimbursement by the Company for certain expenses.
In connection with the offering of the securities of the Company or any BNY Trust, the Company or such BNY Trust may grant to the underwriters an option to purchase additional securities to cover over-allotments, if any, at the initial public offering price (with an additional underwriting commission), as may be set forth in the accompanying prospectus supplement. If the Company or such BNY Trust grants any over-allotment option, the terms of such over-allotment option will be set forth in the prospectus supplement for such securities.
Underwriters and dealers may engage in transactions with, or perform services for, the Company and/or the applicable BNY Trust and/or any of their affiliates in the ordinary course of business. Certain of the underwriters and their associates may be customers of, including borrowers from, engage in transactions with, and perform services for, the Company, the Bank and other subsidiaries of the Company in the ordinary course of business.
Securities other than the Common Stock will be new issues of securities and will have no established trading market. Any underwriters to whom such securities are sold for public offering and sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. Such securities may or may not be listed on a national securities exchange or the NASDAQ National Market. No assurance can be given as to the liquidity of or the existence of trading markets for any securities other than the Common Stock.
This prospectus and applicable prospectus supplement may be used by BNY Capital Markets, Inc. and other affiliates of the Company in connection with offers and sales relating to the initial sale of the Securities and any market making transactions in the Securities. These transactions may be executed at negotiated prices that are related to prevailing market prices at the time of sale, or at other prices. The Company and its affiliates may act as principal or agent in these transactions.
BNY Capital Markets, Inc., an affiliate of the Company, may act as an underwriter or agent in connection with the offer and sale of the securities offered by the Company or each BNY Trust in connection with this prospectus. Each offering of securities will conform to the requirements of Rule 2720 of the Conduct Rules of the National Association of Securities Dealers, Inc.
Common Stock offered by a selling stockholder
Shares of Common Stock may be offered and sold by any selling stockholder who has acquired Common Stock from the Company in transactions that were not registered under the Securities Act. Sales of shares of Common Stock by a selling stockholder may be effected from time to time in one or more of the following transactions: (a) through brokers, acting as agent in transactions (which may involve block transactions), in special offerings, on any exchange where the Common Stock is traded, or otherwise, at market prices obtainable at the time of sale, at prices related to such prevailing market prices, at negotiated prices or at fixed prices; (b) to underwriters who will acquire the shares of Common Stock for their own account and resell them in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale (any public offering price and any discount or concessions allowed or reallowed or paid to dealers may be changed from time to time); (c) directly or through brokers or agents in private sales at negotiated prices; (d) to lenders pledged as collateral to secure loans, credit or other financing arrangements and any subsequent foreclosure, if any, thereunder; (e) through short sales, option exercises or other derivative transactions; or (f) by any other legally available means. Also, offers to purchase shares may be solicited by agents designated by any selling stockholder from time to time.
Any selling stockholder and any agents or broker-dealers that participate with such selling stockholder in the distribution of any of the shares of Common Stock may be deemed to be "underwriters" within the meaning of the Securities Act, and any discount or commission received by them and any profit on the resale of the shares purchased by them may be deemed to be underwriting discounts or commissions under the Securities Act.
In connection with a sale of shares of Common Stock by any selling stockholder pursuant to this prospectus, the following information will, to the extent then required, be provided in the applicable prospectus supplement relating to such sale: the identity of the selling stockholder, the manner in which the selling stockholder acquired the Common Stock from the Company, the number of shares to be sold, the purchase price, the public offering price, if applicable, the name of any underwriter, agent or broker-dealer, and any applicable commissions, discounts or other items constituting compensation to such underwriters, agents or broker-dealers with respect to the particular sale.
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Registration fee under the Securities Act of 1933, as amended.................................... $391,500
Blue Sky fees and expenses (including counsel fees).............................................. 9,000
Fees of rating agencies.......................................................................... 100,000
Printing and engraving........................................................................... 25,000
Accounting services.............................................................................. 35,000
Miscellaneous.................................................................................... 39,500
--------
Total........................................................................................ $600,000
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Item 15. Indemnification of Directors and Officers.
The By-laws of The Bank of New York Company, Inc. (the "Company") (Section 7.1) provide the following:
Except to the extent expressly prohibited by the New York Business Corporation Law, the Company shall indemnify any person made or threatened to be made a party to any action or proceeding, whether civil or criminal, by reason of the fact that such person or such person's testator or intestate is or was a director or officer of the Company or serves or served at the request of the Company, any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, penalties, amounts paid in settlement and reasonable expenses, including attorneys' fees, incurred in connection with such action or proceeding, or any appeal therein; provided that no such indemnification shall be made if a judgment or other final adjudication adverse to such person established that his or her acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled; and provided further that no such indemnification shall be required with respect to any settlement or other nonadjudicated disposition of any threatened or pending action or proceeding unless the Company has given its prior consent to such settlement or other disposition.
The Company may advance or promptly reimburse upon request any person entitled to indemnification hereunder for all expenses, including attorney's fees, reasonably incurred in defending any action or proceeding in advance of the final disposition thereof upon receipt of an undertaking by or on behalf of such person to repay such amount if such person is ultimately found not to be entitled to indemnification or, where indemnification is granted, to the extent the expenses so advanced or reimbursed exceed the amount to which such person is entitled; provided, however, that such person shall cooperate in good faith with any request by the Company that common counsel be utilized by the parties to an action or proceeding who are similarly situated unless to do so would be inappropriate due to actual or potential differing interests between or among such parties.
Nothing herein shall limit or affect any right of any person otherwise than hereunder to indemnification or expenses, including attorney's fees, under any statute, rule, regulation, certificate of incorporation, by-law, insurance policy, contract or otherwise.
Anything in these By-laws to the contrary notwithstanding, no elimination of this By-law, and no amendment to this By-law adversely affecting the right of any person to indemnification or advancement of expenses hereunder, shall be effective until the 60th day following notice to such person of such action, and no elimination of or amendment to this By-law shall deprive any person of his or her rights hereunder arising out of alleged or actual occurrences, acts or failures to act prior to such 60th day.
The Company shall not, except by elimination of or amendment to this By-law in a manner consistent with the preceding paragraph, take any corporate action or enter into any agreement which prohibits, or otherwise limits the rights of any person to, indemnification in accordance with the provisions of this By-law. The indemnification of
any person provided by this By-law shall continue after such person has ceased to be a director or officer of the Company and shall inure to the benefit of such person's heirs, executors, administrators and legal representatives.
The Company is authorized to enter into agreements with any of its directors or officers extending rights to indemnification and advancement of expenses to such person to the fullest extent permitted by applicable law, but the failure to enter into any such agreement shall not affect or limit the rights of such person pursuant to this By-law, it being expressly recognized hereby that all directors or officers of the Company by serving as such after the adoption hereof, are acting in reliance hereon and that the Company is estopped to contend otherwise.
In case any provision in this By-law shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Company to afford indemnification and advancement of expenses to its directors and officers, acting in such capacities or in the other capacities mentioned herein, to the fullest extent permitted by law.
For purposes of this By-law, the Company shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his or her duties to the Company also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan, and excise taxes assessed on a person with respect to any employee benefit plan pursuant to applicable law shall be considered indemnifiable expenses. For purposes of this By-law, the term "Company" shall include any legal successor to the Company, including any corporation which acquires all or substantially all of the assets of the Company in one or more transactions.
A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in the first paragraph of this By-law shall be indemnified as authorized in such paragraph. Except as provided in the preceding sentence and unless ordered by a court, indemnification under this By-law shall be made by the Company if, and only if, authorized in the specific case:
(1) By the Board of Directors acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in the first paragraph of this By-law, or,
(2) If such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs:
(a) by the Board of Directors upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the standard of conduct set forth in the first paragraph of this By-law has been met by such director or officer; or
(b) by the shareholders upon a finding that the director or officer has met the applicable standard of conduct set forth in such paragraph.
If any action with respect to indemnification of directors and officers is taken by way of amendment of these By-laws, resolution of directors, or by agreement, the Company shall, not later than the next annual meeting of shareholders, unless such meeting is held within three months from the date of such action and, in any event, within fifteen months from the date of such action, mail to its shareholders of record at the time entitled to vote for the election of directors a statement specifying the action taken.
With certain limitations, Sections 721 through 726 of the New York Business Corporation Law permit a corporation to indemnify a director or officer made a party to an action (i) by a corporation or in its right in order to procure a judgment in its favor unless he shall have breached his duties, or (ii) other than an action by or in the right of the corporation in order to procure a judgment in its favor if such director or officer acted in good faith and in a manner he reasonably believed to be in or, in certain cases, not opposed to such corporation's best interests, and additionally, in criminal actions, has no reasonable cause to believe his conduct was unlawful.
In addition, the Company maintains a directors' and officers' liability insurance policy.
Reference is made to the indemnity provisions in the Underwriting Agreement Standard Provisions which is filed as Exhibit 1.1 to this Registration Statement.
Under each Trust Agreement, the Company will agree to indemnify each of the Trustees of the Issuer with respect thereto or any predecessor Trustee for the Issuer, and to hold such Trustees harmless against any loss, damage, claims, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the Trust Agreements, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under the Trust Agreements.
Item 16. Exhibits.
Guarantees.*
5.3 Opinion of Richards, Layton & Finger, P.A. as to validity of the
Preferred Securities to be issued by BNY Capital V *
5.4 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital VI *
5.5 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital VII *
5.6 Opinion of Pepper Hamilton LLP as to validity of the Preferred
Securities to be issued by BNY Capital VIII *
12.1 Computation of ratio of earnings to fixed charges and combined fixed
charges and preferred stock dividend requirements incorporated by
reference to Exhibit 12 to the registrant's Quarterly Report on Form 10-
Q for the quarter ended March 31, 2001 (File No. 1-6152) and Exhibit 12
to registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000 (File No. 1-6152)
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Paul A. Immerman (to be included in 5.1).
23.3 Consent of Sullivan & Cromwell (to be included in 5.2).
* To be filed by amendment
Item 17. Undertakings.
Each of the undersigned Registrants, hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each Registrant pursuant to the provisions described under Item 15 above, or otherwise, each Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by each Registrant of expenses incurred or paid by a director, officer or controlling person of each Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, each Registrant will, unless in the opinion of its counsel the matter has been settled by the controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
Each of the undersigned Registrants hereby also undertakes:
(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post- effective amendment thereto) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in post-effective amendment by those
paragraphs is contained in periodic reports filed by a Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) to provide to the underwriter at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.
(5) That, for the purposes of determining any liability under the Securities Act of 1933:
(i) The information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective.
(ii) Each post-effective amendment that contains a form of prospectus shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, The Bank of New York Company, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on the 7th day of June, 2001.
The Bank of New York Company, Inc.
(Registrant)
By: /s/ Thomas A. Renyi
----------------------------------------
Thomas A. Renyi
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities indicated on the 7th day of June, 2001.
Signature Title
--------- -----
/s/ Thomas A. Renyi Chairman of the Board and Chief Executive Officer
------------------------------------------------------
(Thomas A. Renyi) (Principal Executive Officer) and Director
/s/ Bruce Van Saun Senior Executive Vice President (Principal Financial
------------------------------------------------------
(Bruce Van Saun) Officer)
Thomas J. Mastro Comptroller (Principal Accounting Officer)
------------------------------------------------------
(Thomas J. Mastro)
* Director
------------------------------------------------------
(J. Carter Bacot)
* Director
------------------------------------------------------
(Richard Barth)
* Director
------------------------------------------------------
(Frank J. Biondi, Jr.)
* Director
------------------------------------------------------
(William R. Chaney)
* Director
------------------------------------------------------
(Nicholas M. Donofrio)
* Vice Chairman and Director
------------------------------------------------------
(Alan R. Griffith)
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Signature Title
--------- -----
* President and Director
------------------------------------------------------
(Gerald L. Hassell)
* Director
------------------------------------------------------
(Richard J. Kogan)
* Director
------------------------------------------------------
(John A. Luke, Jr.)
* Director
------------------------------------------------------
(John C. Malone)
* Director
------------------------------------------------------
(Donald L. Miller)
* Director
------------------------------------------------------
(Catherine A. Rein)
* Director
------------------------------------------------------
(William C. Richardson)
* Director
------------------------------------------------------
(Brian L. Roberts)
------------------------------------------------------
________
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* Patricia A. Bicket, hereby signs this Registration Statement on Form S-3 on the 7th day of June, 2001 on behalf of each of the indicated persons for whom she is attorney-in-fact pursuant to a power of attorney filed herein.
/s/ Patricia A Bicket ------------------------------------ Patricia A. Bicket, Attorney-in-Fact |
Pursuant to the requirements of the Securities Act of 1933, as amended, BNY Capital V certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on the 7th day of June, 2001.
BNY Capital V
By: The Bank of New York Company, Inc.,
as Depositor
By: /s/ Bruce Van Saun
-------------------------
Bruce Van Saun
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Pursuant to the requirements of the Securities Act of 1933, as amended, BNY Capital VI certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on the 7th day of June, 2001.
BNY Capital VI
By: The Bank of New York Company, Inc.,
as Depositor
By: /s/ Bruce Van Saun
-------------------------
Bruce Van Saun
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Pursuant to the requirements of the Securities Act of 1933, as amended, BNY Capital VII certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on the 7th day of June, 2001.
BNY Capital VII
By: The Bank of New York Company, Inc.,
as Depositor
By: /s/ Bruce Van Saun
-------------------------
Bruce Van Saun
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Pursuant to the requirements of the Securities Act of 1933, as amended, BNY Capital VIII certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on the 7th day of June, 2001.
BNY Capital VIII
By: The Bank of New York Company, Inc.,
as Depositor
By: /s/ Bruce Van Saun
--------------------------
Bruce Van Saun
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EXHIBIT 1.1
The Bank of New York Company, Inc.
Underwriting Agreement Standard Provisions
(June 2001)
From time to time, The Bank of New York Company, Inc., a New York corporation (the "Company"), may enter into one or more pricing agreements (each, a "Pricing Agreement") in the form of Annex I hereto, together with, if such Pricing Agreement so specifies, a statutory business trust formed under the laws of the State of Delaware (each, a "Trust" and, collectively, the "Trusts") to offer and sell Preferred Securities (as defined herein). Each such Pricing Agreement, with such additions, deletions or modifications to these Underwriting Agreement Standard Provisions (these "Standard Provisions") as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, shall provide that the Company or the Trust identified in such Pricing Agreement (such Trust being the "Designated Trust" with respect to such Pricing Agreement), as the case may be, shall issue and sell to the firms named in Schedule I to such Pricing Agreement (such firms constituting the "Underwriters" with respect to such Pricing Agreement and the securities specified therein) certain securities of the Company or the Designated Trust, as the case may be, specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the "Firm Designated Securities"). If specified in such Pricing Agreement, the Company or the Designated Trust, as the case may be, may grant to the Underwriters the right to purchase at their election an additional number of such securities specified in such Pricing Agreement as provided in Section 3 hereof (with respect to such Pricing Agreement, the "Optional Designated Securities"). The Firm Designated Securities and the Optional Designated Securities, if any, with respect to such Pricing Agreement, are collectively called the "Designated Securities."
If the Designated Securities are to be issued and sold to the Underwriters
by the Company, such Designated Securities shall, as specified in the applicable
Pricing Agreement, consist of either (i) a series of the Company's senior debt
securities (the "Senior Debt Securities") to be issued pursuant to an indenture
dated as of July 18, 1991, as it may be supplemented from time to time (the
"Senior Indenture"), between the Company and Bankers Trust Company, as trustee,
(ii) a series of the Company's senior subordinated debt securities (the "Senior
Subordinated Debt Securities") to be issued pursuant to an indenture dated as of
October 1, 1993, as it may be supplemented from time to time (the "Senior
Subordinated Indenture"), between the Company and Chase Manhattan Trust Company,
National Association, as trustee, (iii) a series of the Company's junior
subordinated debt securities (the "Junior Subordinated Debt Securities") to be
issued pursuant to an indenture dated as of December 25, 1996, as it may be
supplemented from time to time (the "Junior Subordinated Indenture" and,
together with the Senior Indenture and the Senior Subordinated Indenture, each,
an "Indenture"), between the Company and Bank One, National Association, as
trustee (the "Junior Trustee"), (iv) a series of the Company's preferred stock,
without par value (the "No Par Preferred Stock"), or a series of the Company's
preferred stock, par value $2.00 per share (together with the No Par Preferred
Stock, the "Preferred Stock"), or (v) shares of the Company's common stock, par
value $7.50 per share (the "Common Stock"), including a preferred stock purchase
right for each such share
issued pursuant to a rights agreement dated as of December 10, 1985, as amended from time to time, between the Company and The Bank of New York, as rights agent. If specified in the applicable Pricing Agreement, the Preferred Stock shall be deposited by the Company against delivery of receipts (the "Depositary Receipts") to be issued by the bank or trust company named in such Pricing Agreement as the depositary (the "Depositary") under a deposit agreement, to be dated as of the date specified in such Pricing Agreement (the "Deposit Agreement"), among the Company, the Depositary and the holders from time to time of the Depositary Receipts issued thereunder. Such Depositary Receipts will evidence depositary shares (the "Depositary Shares") and each Depositary Share will represent the number of shares of Preferred Stock, or fractions thereof, specified in such Pricing Agreement.
If the Designated Securities are to be issued and sold to the Underwriters by the Designated Trust, such Designated Securities shall, as specified in the applicable Pricing Agreement, consist of preferred securities representing preferred beneficial interests in the Designated Trust (the "Preferred Securities") to be issued pursuant to an amended and restated trust agreement with a bank or trust company named in such Pricing Agreement to be dated as of the date specified in such Pricing Agreement (each, a "Trust Agreement"). The proceeds of the concurrent sale of such Preferred Securities to the public and of the common securities representing common ownership interests in the Designated Trust (the "Common Securities") to the Company are to be invested in a series of Junior Subordinated Debt Securities specified in such Pricing Agreement (the "Corresponding Junior Subordinated Debt Securities"). Such Preferred Securities will be guaranteed by the Company (each, a "Guarantee") to the extent set forth in a guarantee agreement to be dated as of the date specified in such Pricing Agreement (each, a "Guarantee Agreement") between the Company and a bank or trust company named in such Pricing Agreement (the "Guarantee Trustee"). In connection with the issuance and sale of such Preferred Securities, the Designated Trust will enter into an expense agreement to be dated as of the date specified in such Pricing Agreement (each, an "Expense Agreement") with the Company pursuant to which the Company will reimburse the Designated Trust for certain expenses set forth therein.
The terms of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement with respect thereto as described herein.
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 will act without any firm being designated as their representative. These Standard Provisions shall not be construed as an obligation of the Company or any Trust, as the case may be, to sell any of its securities or as an obligation of any Underwriter to purchase any of such securities. The obligation of the Company or any Trust, as the case may be, to issue and sell any of its securities and the obligation of any Underwriter to purchase any of such securities shall be evidenced by the Pricing Agreement with respect to only the Designated Securities specified therein. Each Pricing Agreement shall specify the number of Firm Designated Securities, the maximum number of Optional Designated Securities, if any, the initial public offering price of the Designated Securities or the manner of determining such price, certain terms of such Designated
Securities, including the terms on which and terms of the securities into which such Designated Securities will be exchangeable or convertible, if any, 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, if any, the number of such Designated Securities to be purchased by each Underwriter and the compensation, if any, payable to the Underwriters with respect thereto and shall set forth the date, time and manner of delivery of such Firm Designated Securities and Optional Designated Securities, if any, and payment therefor. The Pricing Agreement shall be in the form of an executed writing (which may be in counterparts) and may be evidenced by an exchange of facsimile communications or any other rapid transmission device designed to produce a written record of communications transmitted. These Standard Provisions will be incorporated by reference in the Pricing Agreement with any such additions, deletions or modifications hereto as the parties thereto may determine and shall be deemed to be a part of the Pricing Agreement to the same extent as if such provisions had been set forth in full therein. The term "Pricing Agreement" as used herein shall refer to the Pricing Agreement relating to particular Designated Securities, including the incorporation therein of these Standard Provisions as so modified. The obligations of the Underwriters under each Pricing Agreement shall be several and not joint.
2. Each of the Company and the Designated Trust, if applicable, jointly and severally, represents and warrants to, and agrees with, each of the Underwriters that (it being understood that additional representations and warranties may be agreed to by the Representatives and the Company and the Designated Trust, if applicable, in the Pricing Agreement to reflect, among other things, any conversion or exchange features relating to the Designated Securities):
(a) A registration statement on Form S-3 (the file number of which shall be specified in the Pricing Agreement) (the "Initial Registration Statement") in respect of certain securities of the Company and the Trusts, including the Designated Securities, 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, have been declared effective by the Commission in such form; other than the registration statement, if any (the file number of which shall be specified in the Pricing Agreement), increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) of the rules and regulations of the Commission under the Securities Act of 1933, as amended (the "Act"), which became effective under the Act upon filing, no other document with respect to the Initial Registration Statement or document incorporated by reference therein has heretofore been filed 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 any 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 used in connection with the offering and sale of the Designated Securities (other than in making confirmations of sales of such Designated Securities) is hereinafter called a "Preliminary Prospectus"; the various parts of the Initial Registration Statement and any Rule 462(b) Registration Statement, 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 any Statement of Eligibility under the
Trust Indenture Act (as defined herein) (Form T-1) of a trustee contained
therein, if applicable, or such part of such Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, and including, to the extent
applicable, the information deemed to be included therein pursuant to Rule 430A
of the rules and regulations of the Commission under the Act, each as amended at
the time such part of such registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the prospectus
relating to the securities of the Company and the Trusts registered under any
prior registration statement, the Initial Registration Statement or the Rule
462(b) Registration Statement, as the case may be, in the form in which it has
most recently been filed 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 such 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 such 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 such 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) of the rules and
regulations of the Commission under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the date
of such filing).
(b) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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 Exchange Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that 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 Company and, if applicable, to the Designated Trust by an Underwriter 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, the rules and regulations of the Commission thereunder, and, if applicable, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, as to the Registration Statement and any amendment thereto, do not and will not, as of the applicable effective date as to the Registration Statement and such amendment 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 and, as to the Prospectus and any amendment or supplement thereto, do not and will not, as of the applicable filing date as to the Prospectus and such amendment or supplement, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that 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 Company and, if applicable, to the Designated Trust by an Underwriter through the Representatives expressly for use in the Prospectus as amended or supplemented relating to such Designated Securities or, if applicable, to that part of the Registration Statement which shall constitute the Statement of Eligibility under the Trust Indenture Act (Form T-1) of a trustee.
(d) Since the date of the latest audited financial statements included in or incorporated by reference in the Registration Statement and the Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in the creditworthiness of the Company and its subsidiaries on a consolidated basis otherwise than as set forth or contemplated in the Prospectus.
(e) Each of the Company and The Bank of New York (the "Bank") has been duly organized and is validly existing as a corporation or banking corporation, as the case may be, and is an existing corporation or banking corporation, as the case may be, in good standing under the laws of the State of New York.
(f) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
nonassessable; and all of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued, are fully paid and nonassessable
(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) If the Designated Securities are to be issued and sold to the Underwriters by the Company, in the case of either Senior Debt Securities, Senior Subordinated Debt Securities or Junior Subordinated Debt Securities, the Designated Securities have been duly authorized by the Company and, when validly issued by the Company and validly authenticated and delivered by the applicable trustee pursuant to the applicable Indenture, will constitute valid and legally binding obligations of the Company enforceable against the Company 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 equitable principles.
Additionally:
(1) In the case of Senior Debt Securities, such Senior Debt Securities will be entitled to the benefits provided by the Senior Indenture; the Senior Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified under the Trust Indenture Act and the Senior Indenture constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equitable principles; and such Senior Debt Securities and the Senior Indenture will conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented with respect to such Senior Debt Securities;
(2) In the case of Senior Subordinated Debt Securities, such Senior Subordinated Debt Securities will be entitled to the benefits provided by the Senior Subordinated Indenture; the Senior Subordinated Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified under the Trust Indenture Act and the Senior Subordinated Indenture constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equitable principles; and such Senior Subordinated Debt Securities and the Senior Subordinated Indenture will conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented with respect to such Senior Subordinated Debt Securities; and
(3) In the case of Junior Subordinated Debt Securities, such Junior Subordinated Debt Securities will be entitled to the benefits of the Junior Subordinated Indenture; the Junior Subordinated Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified under the Trust Indenture Act and the Junior Subordinated Indenture constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equitable principles; and such Junior Subordinated Debt Securities and the Junior Subordinated Indenture will conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented with respect to such Junior Subordinated Debt Securities.
(h) If the Designated Securities are to be issued and sold to the Underwriters by the Company, in the case of either shares of Preferred Stock or Common Stock, such shares have been duly authorized and, when such shares are issued and delivered pursuant to the Pricing Agreement with respect to such shares, such shares will be duly and validly issued and fully paid and non- assessable; and such shares will conform in all material respects to the descriptions thereof contained in the Prospectus as amended or supplemented with respect to such shares.
(i) If the Designated Securities are to be issued and sold to the Underwriters by the Company, in the case of Depositary Shares, such Depositary Shares have been duly authorized and, when such Depositary Shares are issued and delivered pursuant to the Deposit Agreement and the Pricing Agreement with respect to such Depositary Shares, the related Depositary Receipts will entitle the holders thereof to the rights specified in such Depositary Receipts and in the Deposit Agreement; and such Depositary Shares will conform in all material respects to the descriptions thereof contained in the Prospectus as amended or supplemented with respect to such Depositary Shares.
(j) If the Designated Securities are to be issued and sold to the Underwriters by the Company, the issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Pricing Agreement, the Deposit Agreement and the applicable Indenture, if any, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (i) 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, (ii) the Certificate of Incorporation or By-laws of the Company or the charter or by-laws of any of its subsidiaries or (iii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties except, in the case of clauses (i) and (iii), any such conflict, breach or violation that would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole, or on the issuance and sale of the Designated Securities; 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 or the consummation by the Company of the transactions contemplated by the Pricing Agreement, the Deposit Agreement or the applicable Indenture, if any, except such as have been, or will have been prior to the Time of Delivery (as defined in Section 4 hereof), obtained under the Act and the Trust Indenture Act, if applicable, 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.
(k) If the Designated Securities are to be issued and sold to the Underwriters by the Designated Trust:
(1) 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 the Pricing Agreement and the Designated Securities and to consummate the transactions contemplated by the Pricing Agreement; 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 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, 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 and the Trust Agreement of the Designated Trust and described in the Prospectus as amended and supplemented with respect to the 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;
(2) 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 Designated Securities are issued and delivered pursuant to the Pricing Agreement, the 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; and the Designated Securities will conform in all material respects to the descriptions thereof contained in the Prospectus as amended or supplemented with respect to the Designated Securities;
(3) 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 other similar rights;
(4) 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 non-assessable beneficial interests in the Designated Trust and will conform in all material respects to the descriptions thereof contained in the Prospectus as amended or supplemented with respect to the Designated Securities; the issuance of the Common Securities is not subject to preemptive or other similar rights; and, at the Time of Delivery, all of the issued and outstanding Common Securities of the Designated Trust will be directly owned by the Company, free and clear of all liens, encumbrances, equities or claims;
(5) The Guarantee Agreement, the Trust Agreement, the Corresponding Junior Subordinated Debt Securities, the Expense Agreement and the Junior Subordinated Indenture (collectively referred to as the "Company Agreements") have each been duly authorized by the Company; the Junior Subordinated Indenture has been duly executed and delivered by the Company and constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equitable principles; except for the Junior Subordinated Indenture, each Company Agreement, when validly executed and delivered by the Company and, in the case of the Guarantee, by the Guarantee Trustee, and, in the case of the Trust Agreement, by the Issuer Trustees (as defined in the Trust Agreement) and, in the case of the Corresponding Junior Subordinated Debt Securities, when validly issued by the Company and validly authenticated and delivered by the Junior Trustee pursuant to the Junior Subordinated Indenture, will constitute a valid and legally binding instrument or obligation, as the case may be, of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equitable principles; the Trust Agreement, the Junior Subordinated Indenture and the Guarantee Agreement have each been duly qualified under the Trust Indenture Act; the Corresponding Junior Subordinated Debt Securities are entitled to the benefits of the Junior Subordinated Indenture; and the Company Agreements will conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented with respect to the Designated Securities;
(6) 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, the purchase of the Corresponding Junior Subordinated Debt Securities by the Designated Trust and the consummation of the transactions herein and therein contemplated 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, the certificate of trust relating to the Designated Trust 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 Corresponding Junior Subordinated Debt Securities by the Designated Trust or the consummation by the Designated Trust of the transactions contemplated by the Pricing Agreement 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; and
(7) The issuance by the Company of the Guarantee, the issuance and delivery by the Company of the Corresponding Junior Subordinated Debt Securities, the compliance by the Company with all of the provisions of the Pricing Agreement and the Company Agreements and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, (i) 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, (ii) the Certificate of Incorporation or By-laws of the Company or the charter or by-laws of any of its subsidiaries or (iii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties except, in the case of clauses (i) and (iii), any such conflict, breach or violation that would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole, or on the issuance of the Guarantee or the Corresponding Junior Subordinated Debt Securities; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issuance of the Guarantee, the issuance and delivery of the Corresponding Junior Subordinated Debt Securities or the consummation by the Company of the transactions contemplated by the Pricing Agreement or the Company Agreements 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.
(l) 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, if applicable), 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, if applicable) considered as one enterprise.
(m) Neither the Designated Trust, if applicable, 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").
(n) The accounting firm named in the Prospectus as amended or supplemented as having certified the financial statements of the Company and its subsidiaries included in or incorporated by reference in such Prospectus are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(o) The Pricing Agreement has been duly authorized, executed and delivered by the Company and, if applicable, the Designated Trust.
3. Upon the execution of the Pricing Agreement applicable to the 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 Company or the Designated Trust, as the case may be, may specify in the Pricing Agreement applicable to any Designated Securities that the Company or the Designated Trust, as the case may be, thereby grants to the Underwriters the right (an "Over-allotment Option") to purchase at their election up to the number of Optional Designated Securities specified in such Pricing Agreement, on the terms set forth in the paragraph above, for the sole purpose of covering over-allotments in the sale of the Firm Designated Securities. Any such election to purchase Optional Designated Securities may be exercised only by written notice from the Representatives to the Company, and if applicable, to the Designated Trust, 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 Subsequent 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 if applicable, 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 the Company, and if applicable, the Designated Trust, has been advised by the Representatives have been attributed to such Underwriter, provided that, if the Company, and if applicable, 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 Company, shall be delivered by or on behalf of the Company or the Designated
Trust, as the case may be, 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 Company or the Designated Trust, as the case may be, 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 Company or the Designated Trust, as the case may be, 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 "Subsequent Time of Delivery". Each such time and date for delivery is herein called a "Time of Delivery".
5. The Company and the Designated Trust, if applicable, jointly and severally, agree with each of the Underwriters of the 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 the 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 to 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 such Designated Securities, of the suspension of the qualification of such Designated Securities or, if applicable, the Corresponding Junior Subordinated Debt Securities 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 the 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 such 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, if applicable, the Corresponding Junior Subordinated Debt Securities 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 Company nor any applicable Designated Trust 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 such Designated Securities or, if applicable, the Corresponding Junior Subordinated Debt Securities issuable upon termination of the Designated Trust, and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or, if applicable, 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 that 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 such 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 Initial Registration Statement (as defined in Rule 158(c) of the rules and regulations of the Commission under the Act), an earning 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 or the Designated Trust, as the case may be, Rule 158 of the rules and regulations of the Commission under the Act).
(e) If such Designated Securities are to be issued and sold to the
Underwriters by the Designated Trust, during the period beginning from the date
of the Pricing Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives and
(ii) the last Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of, except as provided in the
Pricing Agreement, 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 Junior
Subordinated Indenture) of the Company in a manner substantially similar to the
subordination of the Corresponding Junior Subordinated Debt Securities without
the prior written consent of the Representatives.
(f) If such Designated Securities are to be issued and sold to the Underwriters by the Company, during the period beginning from the date of the Pricing Agreement for such Designated Securities and continuing to and including the later of (i) the termination of trading restrictions for such Designated Securities, as notified to the Company by the Representatives and (ii) the last Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of, except as provided in the Pricing Agreement, any securities of the
Company (other than (a) pursuant to employee stock option, profit sharing or thrift plans or the Company's Dividend Reinvestment and Stock Purchase Plan, (b) on exercise of warrants outstanding on the date of such Pricing Agreement, (c) on the conversion of convertible securities outstanding on the date of such Pricing Agreement or (d) directly or indirectly to a corporation or subsidiary, division or other business unit thereof, or a similar transaction, provided, however, that such corporation or its shareholders shall receive shares of Preferred Stock or Common Stock or securities substantially similar thereto, or securities convertible into, or exchangeable for, such shares or any security substantially similar thereto) that are substantially similar to such Designated Securities, without the prior written consent of the Representatives.
(g) To furnish to the holders of such 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 Initial Registration Statement), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail.
(h) If the Company and, if applicable, the Designated Trust elect to
rely upon Rule 462(b) of the rules and regulations of the Commission under the
Act, the Company and, if applicable, the Designated Trust shall file a Rule
462(b) Registration Statement with the Commission in compliance with such Rule
462(b) by 10:00 p.m., Washington, D.C. time, on the date of the Pricing
Agreement with respect to such Designated Securities and the Company and, if
applicable, 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) of
the rules and regulations of the Commission 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 Company's and, if applicable, the Trust's
counsel and accountants in connection with the registration of the Designated
Securities 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, any blue sky 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
and, if applicable, the Guarantee and the Corresponding Junior Subordinated Debt
Securities 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 such
blue sky surveys or memoranda; (iv) any fees charged by securities rating
services for rating the Designated Securities and, if applicable, the
Corresponding Junior Subordinated Debt Securities; (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, if applicable, the issuance of the Guarantee and the
Corresponding Junior Subordinated Debt Securities; (vi) the cost of preparing
the Designated Securities and, if applicable, the Corresponding Junior
Subordinated Debt Securities; (vii) the fees and expenses of any trustee and any
agent of such trustee and the fees and disbursements of counsel for such trustee
in connection with the Trust Agreement, any Indenture, the Guarantee Agreement
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 Corresponding Junior
Subordinated Debt Securities, if necessary) on the New York Stock Exchange or
any other organization and the cost of registering the Designated Securities
(and the Corresponding Junior Subordinated Debt Securities, 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 Pricing Agreement that are not otherwise specifically provided for in
this Section 6. It is understood, however, that, except as provided in this
Section 6 and 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 the 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, if applicable, 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 such Designated Trust and the Company shall have performed all of their respective obligations hereunder and thereunder 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) Pillsbury Winthrop LLP, counsel for the Underwriters, shall have furnished to the Representatives such written opinion or opinions, dated each Time of Delivery for such Designated Securities, with respect to, as applicable, the incorporation of the Company and the formation of the Designated Trust, the validity of the Designated Securities, the Corresponding Junior Subordinated Debt Securities and the Guarantee and the Registration Statement and the Prospectus as amended or supplemented and such other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) Paul Immerman, Senior Counsel of The Bank of New York, or other counsel designated by the Company reasonably acceptable to the Representatives and specified in the applicable Pricing Agreement, shall have furnished to the Representatives such written opinion or opinions to the effect of paragraphs (1) through (6), inclusive, below, and, if the
Designated Securities are Preferred Securities, Sullivan & Cromwell, special counsel to the Company, or other counsel designated by the Company reasonably acceptable to the Representatives and specified in the applicable Pricing Agreement, shall have furnished to the Representatives such written opinion or opinions to the effect of paragraph (2), the first clause of paragraph (3), and paragraphs (4), 6(i), 6(ii), 6(iii) and 6(vi) below, in each case, dated each Time of Delivery for such Designated Securities, and in each case in form and substance satisfactory to the Representatives:
(1) Each of the Company and the Bank has been duly incorporated, and is an existing corporation or banking corporation, respectively, in good standing under the laws of the State of New York and the Company has the corporate power and authority to own its properties and conduct its business as described in the Prospectus as amended or supplemented relating to the Designated Securities;
(2) The Pricing Agreement with respect to the Designated Securities has been duly authorized, executed and delivered by the Company;
(3) Each part of the Registration Statement, when such part became effective, and the Prospectus as amended and supplemented, 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 Designated Securities, to the requirements of the Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder; and nothing which came to the attention of such counsel in the course of such counsel's review (as described in such opinion) has caused such counsel to believe that, insofar as relevant to the offering of the 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 amended and supplemented, 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 the 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 amended and supplemented, 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 as amended and supplemented except for those made under the captions in the Prospectus as amended or supplemented relating to the Designated Securities and to the underwriting arrangements relevant to the Designated Securities, in each case as identified in such opinion, insofar as they relate to provisions of documents therein described, and that such counsel does not express any opinion or belief as to the financial statements or other financial data contained in the Registration Statement or the Prospectus as amended and supplemented
or as to any Statement of the Eligibility under the Trust Indenture Act (Form T-1) of the applicable trustee);
(4) The statements set forth under the captions in the Prospectus as amended or supplemented relating to the Designated Securities and to the underwriting arrangements relevant to the Designated Securities, insofar as they relate to provisions of documents therein described, constitute accurate summaries of the terms thereof in all material respects;
(5) If the Designated Securities are to be issued and sold to the Underwriters by the Company:
(i) In the case of either Senior Debt Securities, Senior Subordinated Debt Securities or Junior Subordinated Debt Securities, the applicable Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equitable principles;
(ii) In the case of either Senior Debt Securities, Senior Subordinated Debt Securities or Junior Subordinated Debt Securities, the Designated Securities have been duly authorized, executed and delivered by the Company, authenticated and issued in conformity with the terms of the applicable Indenture, are entitled to the benefits of such Indenture and constitute valid and legally binding obligations of the Company enforceable against the Company 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 equitable principles;
(iii) In the case of shares of Preferred Stock or Common Stock, such shares have been duly authorized and validly issued and are fully paid and non-assessable;
(iv) In the case of Depositary Shares, the Depositary Shares have been duly authorized and the Deposit Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equitable principles; the Depositary Receipts have been duly issued in accordance with the Deposit Agreement and the persons in whose names the Depositary Receipts are registered will be entitled to the rights specified in the Depositary Receipts and in the Deposit Agreement;
(v) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date of such opinion under the Federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Designated Securities by the Company to the Underwriters, in accordance with the Pricing Agreement, have been obtained or made; provided, however, that such counsel need not express any opinion with respect to state securities laws; and
(vi) The execution and delivery by the Company of the applicable Indenture, the Deposit Agreement and the Pricing Agreement do not, and the issuance and sale of the Designated Securities in accordance with the Pricing Agreement and the performance by the Company of its obligations under the applicable Indenture, the Deposit Agreement, the Pricing Agreement and the Designated Securities will not, violate the Company's 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 the agreements listed 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; provided, however, 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 that restrict transactions between United States persons and citizens or residents of certain foreign countries; provided, further, that insofar as performance by the Company and its obligations under the applicable Indenture, the Deposit Agreement, the Pricing Agreement and the Designated Securities 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.
(6) If the Designated Securities are to be issued and sold to the Underwriters by the Designated Trust:
(i) 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 against the Company 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 equitable principles; and the Trust Agreement, the Junior Subordinated Indenture and the Guarantee Agreement have each been duly qualified under the Trust Indenture Act;
(ii) The Corresponding Junior Subordinated Debt Securities have been duly authorized, executed and delivered by the Company, authenticated and issued in conformity with the terms of the Junior Subordinated Indenture, are entitled to the benefits of the Junior Subordinated Indenture and constitute valid and legally binding obligations of the Company enforceable against the Company
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 equitable principles;
(iii) The Designated Securities have been duly authorized by the Company, as depositor, on behalf of the Designated Trust;
(iv) 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 Corresponding Junior Subordinated Debt Securities and the execution and delivery by the Company of the Guarantee Agreement, in accordance with the Pricing Agreement, have been obtained or made; provided, however, that such counsel need not express any opinion with respect to state securities laws;
(v) The execution and delivery by the Company of the Company Agreements and the Pricing Agreement do not, and the issuance, sale and delivery of the Corresponding Junior Subordinated Debt Securities as contemplated by the Prospectus as amended and supplemented and the performance by the Company of its obligations under the Company Agreements and the Pricing Agreement will not, violate the Company's 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 listed 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; provided, however, that such counsel need not express any 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; provided, further, that insofar as performance by the Company of its obligations under the Company Agreements and the Pricing Agreement is concerned, such counsel need not express any opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights; and
(vi) The Designated Trust is not an "investment company" within the meaning of the Investment Company Act.
(d) If the Designated Securities are to be issued and sold to the Underwriters by the Designated Trust, Pepper Hamilton LLP, special Delaware counsel to the Designated Trust and the Company (or, if specified in the Pricing Agreement relating to such Designated Securities, such other special Delaware counsel reasonably acceptable to the Representatives), shall have furnished to the Representatives such written opinion or opinions, dated each Time of
Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, to the effect that:
(1) The Designated Trust has been duly created and is validly existing in good standing as a business trust under the laws of the State of Delaware, 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;
(2) Under the laws of the State of Delaware 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;
(3) The Trust Agreement constitutes a valid and legally binding obligation of the Company and the trustees named therein, enforceable against each of the Company and such trustees in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles;
(4) Under the laws of the State of Delaware and the Trust Agreement, the Designated Trust has the power and authority to (a) execute and deliver the Pricing Agreement and to perform its obligations under the Pricing Agreement, and (b) issue and perform its obligations under the Designated Securities and the Common Securities;
(5) Under the laws of the State of Delaware and the Trust Agreement, the execution and delivery by the Designated Trust of the Pricing Agreement 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;
(6) 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 non-assessable 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;
(7) The Common Securities have been duly authorized by the Trust Agreement and are validly issued and represent beneficial interests in the Designated Trust;
(8) Under the laws of the State of Delaware and the Trust Agreement, the issuance of the Designated Securities and the Common Securities is not subject to preemptive rights;
(9) The issuance and sale by the Designated Trust of the Designated Securities and the Common Securities, the execution and delivery of the Pricing Agreement and the performance by the Designated Trust of the 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;
(10) 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 (as defined in the Trust Agreement) 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 (10), such counsel need express no opinion concerning the securities laws of the State of Delaware; and
(11) 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.
(e) If the Designated Securities are to be issued and sold to the Underwriters by the Designated Trust, Sullivan & Cromwell, tax counsel for the Designated Trust and the Company, or other counsel designated by the Company reasonably acceptable to the Representatives and specified in the applicable Pricing Agreement, shall have furnished to the Representatives such written opinion, dated each Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, 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" or a similar caption set forth therein.
(f) If specified in the Pricing Agreement relating to the Designated Securities, counsel for the Depositary or the applicable trustee shall have furnished to the Representatives such written opinion or opinions, dated each Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, as to such matters reasonably requested by the Representatives and set forth in such Pricing Agreement.
(g) At each Time of Delivery with respect to the Designated Securities, Ernst & Young LLP (or, if specified in the Pricing Agreement relating to such Designated Securities, one or more other independent accountants reasonably acceptable to the Representatives) shall have furnished to the Representatives a letter or letters, dated the date of delivery thereof, in form and substance satisfactory to the Representatives, 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 as of the date of the Pricing Agreement with respect to such Designated Securities, there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus as so amended and supplemented, the effect of which is in the Representatives' judgment after consultation with the Company so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery 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) of the rules and regulations of the Commission 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) an outbreak or escalation of hostilities or other calamity or crisis having an adverse effect on the financial markets of the United States, 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 Designated Securities 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 at the applicable Time of Delivery shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange or other organization.
(l) The Designated Trust, if applicable, 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, if applicable, and the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Designated Trust, if applicable, and the Company herein at and as of such Time of Delivery, as to the performance by each of the Designated Trust, if applicable, 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 (g) of this Section 7 and as to such other matters as the Representatives may reasonably request.
(m) If required by the Pricing Agreement relating to the Designated Securities, any additional conditions to the purchase by the Underwriters of Optional Designated Securities at the Subsequent Time of Delivery.
8. (a) The Company and the Designated Trust, if applicable, 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 in any prior registration statement to which the Prospectus, as a combined prospectus under Rule 429 of the rules and regulations of the commission under the Act, relates) or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and such 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 through the Representative expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and the Designated Trust, if applicable, against any losses, claims, damages or liabilities to which the Company or such 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 through the Representatives expressly for use therein; and will reimburse the Company or such Designated Trust, as the case may be, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall without the
prior written consent of the indemnified party effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is a
party and indemnity has been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Designated Trust, if applicable, on the one hand and the Underwriters on the other from the offering of the Designated 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 such Designated Trust on the one hand and the Underwriters 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 such Designated Trust on the one hand and the Underwriters 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 Company and such Designated Trust bear to the total compensation received by such Underwriters in connection with the offering of the Designated Securities, in each case as set forth in 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 such Designated Trust on the one hand or the Underwriters 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 such Designated Trust and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter 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 as amended and supplemented with respect to the Designated Securities 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, if applicable, under this Section 8 shall be in addition to any liability which the Company or such 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 or such Designated Trust and to each person, if any, who controls the Company or such Designated Trust 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, if applicable, 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 such Designated Trust and the Company that they have so arranged for the purchase of such Designated Securities, or such Designated Trust and the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or such 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 such 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, if applicable, and the Company as provided in subsection
(a) above, the aggregate number of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate number of the Firm
Designated Securities or Optional Designated Securities, as the case may be, to
be purchased at the respective Time of Delivery, then such 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, if applicable, 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 such
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 to exercise 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, such Designated Trust or the
Company, except for the expenses to be borne by such 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, if applicable, 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 such Designated Trust, the Company, or any officer or director or controlling person of such 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, if applicable, nor
the Company shall then be under any liability to any Underwriter with respect to
the Firm Designated Securities or Optional Designated Securities covered by such
Pricing Agreement except as provided in Section 6 and Section 8 hereof; but, if
for any other reason, Designated Securities are not delivered by or on behalf of
such Designated Trust or the Company as provided herein, such 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 such 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 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, if applicable, or the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of such 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 such 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, if applicable, and the Company and, to the extent provided in Section 8 and Section 10 hereof, the officers and directors of such Designated Trust or the Company and each person who controls such Designated Trust, the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of any such Pricing Agreement. No purchaser of any of the Designated Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business.
15. EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Each Pricing Agreement may be executed by any one or more of the parties thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
[Date]
To the Underwriters named in
Schedule I hereto (the "Underwriters")
c/o (Name(s) and Address(es) of Representative(s))
Ladies and Gentlemen:
The Bank of New York Company, Inc., a New York corporation (the "Company"), and, if specified in Schedule II hereto, a statutory business trust formed under the laws of the State of Delaware (the "Designated Trust"), propose, subject to the terms and conditions stated herein and in the Underwriting Agreement Standard Provisions (June 2001) (the "Standard Provisions"), to issue and sell to the Underwriters the securities of the Company or the Designated Trust specified in Schedule II hereto (the "[Firm]/1/ Designated Securities"). [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 (it being understood that the term "Representatives" may also refer to a single firm acting as sole representative of the Underwriters if so specified herein or to Underwriters who will act without any firm being designated as their representative). Unless otherwise defined herein, terms defined in the Standard Provisions are used herein as therein defined. 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 address of the Representatives referred to in such Section 12 are set forth in 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.
/1/ The bracketed provisions contained in this form of Pricing Agreement shall be included if the Company or the Designated Trust, as the case may be, grants to the Underwriters the right to purchase at their election an additional number of Designated Securities specified herein.
Subject to the terms and conditions set forth herein and in the Standard Provisions incorporated herein by reference, [(a)] the Company or the Designated Trust, as the case may be, agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company or the Designated Trust, as the case may be, 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 Company or the Designated Trust, as the case may be, agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company or the Designated Trust, as the case may be, 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 Company or the Designated Trust, as the case may be, 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 Company or the Designated Trust, as the case may be, given within a period of __ 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 and the Company or the Designated Trust, as the case may be, otherwise agree in writing, no earlier than two or later than ten business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign and return to us ten counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Standard Provisions incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company and, if applicable, the Designated Trust. 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:
[NAME OF DESIGNATED TRUST, IF ANY
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 Representative(s) of the Underwriters
named in Schedule I hereto
By:___________________________
Name:
Title:
On behalf of each of the Underwriters
named in Schedule I hereto
Number of [Firm] [Number of Maximum
Designated Securities to be Optional Designated
Underwriter Purchased Securities to be Purchased]
----------------------------- ----------------------------- ---------------------------
Total ___________ ___________
=========== ===========
|
Title of Designated Securities:
Aggregate Principal Amount or Number of Designated Securities:
[Firm] Designated Securities:
[Maximum Optional Designated Securities:]
Initial Public Offering Price of Designated Securities:
Purchase Price to the Underwriters of Designated Securities:
Compensation of Underwriters:
Form of Designated Securities:
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 or such custodian.
Account for Payment of Purchase Price by Underwriters:
Registration Statement:
Initial Registration Statement File Number: 333-________ Rule 462(b) Registration Statement File Number, if any: 333-__________
Listing of Designated Securities:
Other Terms of Designated Securities (including any exchange or conversion features thereof):
[First] Time of Delivery:
[Subsequent Time of Delivery:
The time and date specified in the notice to be delivered by the Underwriters pursuant to Section 3 of the Standard Provisions.]
[Additional Closing Conditions to Purchase of Optional Designated Securities:]
Closing Location:
Name(s) and Address(es) of Representative(s):
If the Designated Securities are Depositary Shares:
Name of Depositary:
Deposit Agreement:
Depositary Shares Will Represent the Following Number of Shares of Preferred Stock:
If the Designated Securities are Preferred Securities:
Designated Trust:
Trust Agreement:
Guarantee Agreement:
Expense Agreement:
Corresponding Junior Subordinated Debt Securities:
Pursuant to Section 7(g) of the Underwriting Agreement Standard Provisions (June 2001), the Company's independent certified public accountants shall furnish a letter or 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;
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 and the Exchange Act and the applicable 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 under SAS 71, Interim Financial Information;
iii. On the basis of limited procedures, not constituting an audit, consisting of a limited review of the unaudited consolidated financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(1) the unaudited information with respect to the annual consolidated results of operations and financial position for fiscal years which was included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year does not agree with the corresponding amount in the audited consolidated financial statements for such fiscal years which was included or incorporated by reference in the Company's Annual Reports on Form 10-K for the last three fiscal years;
(2) the unaudited information with respect to the annual consolidated results of operations and financial position for such fiscal years which was included or incorporated by reference in the Prospectus does not agree with the corresponding amounts in the audited consolidated financial statements for such fiscal years which were included or incorporated by reference in the Company's Annual Reports on Form 10-K for the last three years;
(3) any material modifications should be made to 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 for them to be in conformity with generally accepted accounting principles and such unaudited consolidated financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10- Q and the applicable published rules and regulations thereunder;
(4) any unaudited financial data included in the Prospectus as at any time, or for any period ending, after the end of the latest interim period covered by a Quarterly Report on Form 10-Q of the Company do not agree with the corresponding amounts in the unaudited consolidated financial statements from which such data are derived;
(5) the unaudited financial data included in the Prospectus do not agree with the corresponding amounts in the unaudited financial statements which were not included in the Prospectus but from which were derived such financial data;
(6) as of a specified date not more than five days prior to the date of such letter, there have been any changes in the consolidated capital stock (other than issuances of capital stock upon exercise of options and stock appreciation rights, upon earn-outs of performance shares and upon conversions of convertible securities, in each case which were outstanding on the date of the latest audited financial statements included or incorporated by reference in the Prospectus) or any increase in the consolidated long-term debt of the Company and its subsidiaries, or any decreases in consolidated shareholders' equity or allowance for loan losses, in each case as compared with amounts shown in the latest consolidated statement of condition included or incorporated by reference in the Prospectus except in each case for changes which the Prospectus discloses have occurred or may occur or which are described in such letter; and
(7) for the period from the date of the latest complete consolidated financial statements included or incorporated by reference in the Prospectus to the specified date referred to in paragraph (6) above there were any decreases in consolidated net interest income, net interest income after provision for loan losses, or the 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; and
iv. In addition to the examination referred to in their reports included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in subparagraph (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information specified by the Underwriters which are derived from the general accounting records of the Company and its subsidiaries, which appear in the Prospectus (excluding documents incorporated by reference), in exhibits to the Registration Statement specified by the Underwriters or in documents incorporated by reference in the Prospectus specified by the Underwriters, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement.
II-2
All references in this Annex II to the Prospectus shall be deemed to refer 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.
II-3
REGISTRATION RIGHTS AGREEMENT dated as of _______, 2001 between The Bank of New York Company, Inc., a New York corporation (the "Company"), and Merrill Lynch International (the "Shareholder").
"1933 Act" means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
"Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in New York are authorized by law to close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, par value $7.50 per share.
"Prospectus" shall mean the prospectus that is a part of the Shelf Registration Statement at all times after the effective date of the Shelf Registration Statement, as the same may be amended.
"Purchase Agreement" means the Purchase Agreement between the Company and the Shareholder dated as of January 2, 2001.
"Person" means an individual, a corporation, a partnership, limited liability company, an association, a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"Registrable Securities" means all shares of Common Stock delivered by the Company to the Shareholder pursuant to the Purchase Agreement.
"Shelf Registration Statement" means the Shelf Registration Statement as defined in Section 2.1.
"Underwriter" means a securities dealer who purchases any Registrable Securities as principal and not as part of such dealer's market-making activities.
REGISTRATION RIGHTS
If the Shareholder so elects, an offering may be in the form of an underwritten offering, in which event the Shareholder shall have the right to act as the Underwriter.
REGISTRATION PROCEDURES; INDEMNIFICATION
3.1. In connection with any registration statement that includes Registrable Securities:
(a) The Company will notify the Shareholder, immediately, and confirm the notice in writing, (i) when the Shelf
Registration Statement, or any post-effective amendment to the Shelf Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of any request by the Commission to amend the Shelf Registration Statement or amend or supplement the Prospectus or for additional information after the Shelf Registration Statement shall have become effective, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Registered Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes and (iv) of the existence of any fact that results in the Shelf Registration Statement, the Prospectus or any document incorporated therein by reference containing an untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading.
(b) The Company will use its best efforts to prevent the issuance of any stop order suspending the effectiveness of the Shelf Registration Statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will furnish to the Shareholder, without charge, as many signed copies of the Shelf Registration Statement (as originally filed) and of all amendments thereto, whether filed before or after the Shelf Registration Statement becomes effective, copies of all exhibits and documents filed therewith, including documents incorporated by reference into the Prospectus, prospectus supplements, and signed copies of all consents and certificates of experts, as the Shareholder may reasonably request. The Company will deliver to the Shareholder, without charge, from time to time during the period when the Prospectus is required to be delivered under the Securities Act, such number of copies of the Prospectus (as supplemented or amended) as the Shareholder or agent may reasonably request.
(d) The Company will comply with the 1933 Act and the rules and regulations of the Commission thereunder, and the 1934 Act and the rules and regulations of the Commission thereunder so as to permit the completion of the distribution of the Registrable Securities in accordance with the intended method or methods of distribution contemplated in the Prospectus.
(e) The Company will use best efforts, in cooperation with the Shareholder, to qualify the Registrable Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Shareholder, may designate; provided, however, that the Company shall not be obligated to qualify the Registrable Securities for offering and sale under the applicable securities laws of such states and other jurisdictions where the Company will be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a broker or dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Registrable Securities have been qualified as above provided.
(f) The Company will use best efforts to effect the listing of the Registrable Securities covered by a Shelf Registration Statement on each securities exchange on which the Company's Common Stock is then listed.
(g) The Company will enter into such customary agreements, and take all such other actions in connection with the offering in order to expedite or facilitate the disposition of the Registrable Securities.
(h) The Company will pay and bear all costs and expenses incident to the performance of its obligations in connection with the Shelf Registration Statement, including, without limitation: (i) the preparation, printing and filing of the Shelf Registration Statement (including financial statements and exhibits), as originally filed and as amended, any preliminary prospectuses and the Prospectus and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Shareholder; (ii) the preparation, printing and distribution certificates representing the Registrable Securities and other documents relating to the performance of and compliance with this Agreement by the Company; (iii) the fees and disbursements of the Company's counsel and accountants; (iv) the qualification of the Registrable Securities under applicable securities laws and any filing for review of the offering with the National Association of Securities Dealers, Inc., including filing; (v) all fees and expenses incurred in connection with the listing, if any, of any of the Registrable Securities on any securities exchange; and (vi) the reasonable fees and disbursements of one counsel to review the Shelf Registration Statement on behalf of the Shareholder.
(i) Upon the request of the Shareholder or if required by the rules, regulations or instructions applicable to the registration form used by the Company, or by the 1933 Act in connection with the offering of Registrable Securities pursuant to the Shelf Registration Statement, the Company will prepare a prospectus supplement that complies with the 1933 Act and the rules and regulations of the Commission thereunder and that sets forth the aggregate amount of the Registrable Securities being sold, the price at which the Registrable Securities are to be sold, any discounts, commissions or other items constituting compensation, and such other information as the Shareholder and the Company deem appropriate in connection with the offering of the Registrable Securities prior to its being used or filed with the Commission.
(j) The Company will furnish to the Shareholder a signed counterpart, addressed to the Shareholder, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the Shareholder reasonably requests.
(k) The Company agrees to indemnify and hold harmless the Shareholder (in its capacity as such and it capacity as Underwriter), together with all officers, directors, agents,
employees of the Shareholder and each Person, if any, who controls the Shareholder within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage, joint or several, and expense whatsoever, as incurred, arising out of an untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading or arising out of an untrue statement of a material fact included in the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage, joint or several, and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or of any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever, based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the prior written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including fees and disbursements of counsel chosen by the Shareholder, reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever, based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is
(l) The Shareholder agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed a Shelf Registration Statement and
each Person, if any, who controls the Company and any other selling holder
within the meaning of Section 15 of the 1933 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 3.1(k), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of the Shareholder expressly for use in the Shelf Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(m) In order to provide for just and equitable contribution in circumstances under which the indemnity provided for in Sections 3.1(k) and (l) is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms, as between the Company, on the one hand, and the Shareholder, on the other hand, the Company and the Shareholder shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity incurred by the Company and the Shareholder, as
incurred, in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and of the Shareholder on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and the Shareholder on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Shareholder and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Shareholder agree that it would not be just and equitable if contribution pursuant to this Section 3.1(n) 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 Section 3.1(n). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 3.1(n) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigation, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(n) The indemnity and contribution agreements contained in this Section 3.1
shall remain operative and in full force and effect regardless of (i) any
termination of any underwriting or agency agreement, (ii) any investigation made
by or on behalf of the Shareholder or the Company or controlling person, or
(iii) the consummation of the sale or successive resales of the Registrable
Securities.
MISCELLANEOUS
if to the Company, to:
The Bank of New York Company, Inc.
One Wall Street
New York, NY 10286
Attention: Bruce Van Saun
Telecopy No.: (212) 635-1121
With a copy to:
The Bank of New York Company, Inc.
One Wall Street
New York, NY 10286
Attention: General Counsel
Telecopy No.: (212) 635-1698
if to the Shareholder, to:
Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
with a copy to:
Peter T. Simor, Esq.
Brown & Wood LLP
One World Trade Center
New York, New York 10048
Telecopy: (212) 839-5599
or such other address or telecopier number as such party may hereafter specify for the purpose by notice to the other party hereto. Each such notice, request or other communication shall be effective when delivered at the address specified in this Section 4.2.
(b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
No representation, inducement, promise, understanding, condition or warranty not set forth herein or therein has been made or relied upon by any of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
THE BANK OF NEW YORK COMPANY, INC.
By:____________________________
Name:
Title:
MERRILL LYNCH INTERNATIONAL
By:____________________________
Name:
Title:
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
THE BANK OF NEW YORK COMPANY, INC.
Under Section 807 of the Business Corporation Law
The undersigned, being Chairman and Chief Executive Officer and Assistant Secretary of The Bank of New York Company, Inc., a New York Corporation, hereby certify that:
1. The name of the Corporation is The Bank of New York Company, Inc., and the name under which it was formed was The B. N. Y. Company, Inc.
2. The certificate of incorporation of the Corporation was filed by the Department of State on July 9, 1968.
3. The text of article FOURTH of the certificate of incorporation of the Corporation is hereby amended to increase the authorized Common Stock (par value $7.50 per share) from 1,600,000,000 to 2,400,000,000 shares, additionally the corporation will amend its service of process address.
4. The Restated Certificate of Incorporation was authorized by vote of the Board of Directors followed by the affirmative vote of a majority of all outstanding shares entitled to vote thereon at a meeting of the shareholders.
As so amended and restated, the Certificate of Incorporation of the Corporation will read as follows:
FIRST: The name of the Corporation is The Bank of New York Company, Inc.
SECOND: The purposes for which the Corporation is formed are:
1. To engage in and carry on the business of a bank holding company.
2. To acquire, hold, create interests in, or dispose of real or personal property, tangible or intangible, of any kind in any manner.
THIRD: The office of the Corporation in the State of New York is located in the City and County of New York.
FOURTH: The aggregate number of shares which the Corporation shall have the authority to issue is two billionfour hundred ten million (2,410,000,000) of which two billion
four hundred million (2,400,000,000) shares (par value $7.50 per share) shall be designated as Common Stock; five million (5,000,000) shares, without par value, shall be designated as Preferred Stock; and five million (5,000,000) shares (par value $2.00 per share) shall be designated as Class A Preferred Stock.
The rights, preferences and limitations of said classes of stock are as follows:
1. Shares of the Preferred Stock may be issued from time to time by the Board of Directors as shares of one or more series of Preferred Stock, and the Board of Directors is expressly authorized, prior to issuance, in the resolution or resolutions providing for the issue of shares of each particular series, to fix the following:
(a) The distinctive serial designation of such series which shall distinguish it from other series;
(b) The number of shares included in such series, which number may be increased or decreased from time to time unless otherwise provided by the Board of Directors in creating the series;
(c) The annual dividend rate (or method of determining such rate) for shares of such series and the date or dates upon which such dividends shall be payable;
(d) Whether dividends on the shares of such series shall be cumulative, and, in the case of shares of any series having cumulative dividend rights, the date or dates or method of determining the date or dates from which dividends on the shares of such series shall be cumulative;
(e) The amount or amounts which shall be paid out of the assets of the Corporation to the holders of the shares of such series upon voluntary or involuntary liquidation, dissolution or winding up of the Corporation;
(f) The price or prices at which, the period or periods within which and the terms and conditions upon which the shares of such series may be redeemed, in whole or in part, at the option of the Corporation;
(g) The obligation, if any, of the Corporation to purchase or redeem shares of such series pursuant to a sinking fund or otherwise and the price or prices at which, the period or periods within which and the terms and conditions upon which the shares of such series shall be redeemed, in whole or in part, pursuant to such obligation;
(h) The period or periods within which and the terms and conditions, if any, including the price or prices or the rate or rates of conversion and the terms and conditions of any adjustments thereof, upon which the shares of such series shall be convertible at the option of the holder into shares of any class of stock or into shares of any other series of Preferred Stock, except into shares of a class having rights or preferences as to dividends or distribution of assets upon liquidation which are prior or superior in rank to those of the shares being converted;
(i) The voting rights, if any, of the shares of such series in addition to those required by law, including the number of votes per share; and
(j) Any other relative rights, preferences or limitations of the shares of the series not inconsistent herewith or with applicable law.
2. All shares of Preferred Stock (a) shall rank senior to the Common Stock in respect of the right to receive dividends and the right to receive payments out of the assets of the Corporation upon voluntary or involuntary liquidation, dissolution or winding up of the Corporation, (b) shall be of equal rank, regardless of series, and (c) shall be identical in all respects except as provided in paragraph 1 above. The shares of any one series of the Preferred Stock shall be identical with each other in all respects except as to the dates from and after which dividends thereon shall be cumulative. In case the stated dividends or the amounts payable on liquidation are not paid in full, the shares of all series of the Preferred Stock shall share ratably in the payment of dividends, including accumulations, if any, in accordance with the sums which would be payable on said shares if all dividends were declared and paid in full, and in any distribution of assets other than by way of dividends in accordance with the sums which would be payable on such distribution if all sums payable were discharged in full. All shares of Preferred Stock redeemed, purchased or otherwise acquired by the Corporation (including shares surrendered for conversion) shall be cancelled and thereupon restored to the status of authorized but unissued shares of Preferred Stock undesignated as to series.
3. Shares of the Class A Preferred Stock may be issued from time to time by the Board of Directors as shares of one or more series of Class A Preferred Stock, and the Board of Directors is expressly authorized, prior to issuance, in the resolution or resolutions providing for the issue of shares of each particular series, to fix the following:
(a) The distinctive serial designation of such series which shall distinguish it from other series;
(b) The number of shares included in such series, which number may be increased or decreased from time to time
unless otherwise provided by the Board of Directors in creating the series;
(c) The annual dividend rate (or method of determining such rate) for shares of such series and the date or dates upon which such dividends shall be payable;
(d) Whether dividends on the shares of such series shall be cumulative, and, in the case of shares of any series having cumulative dividend rights, the date or dates or method of determining the date or dates from which dividends on the shares of such series shall be cumulative;
(e) The amount or amounts which shall be paid out of the assets of the Corporation to the holders of the shares of such series upon voluntary or involuntary liquidation, dissolution or winding up of the Corporation;
(f) The price or prices at which, the period or periods within which and the terms and conditions upon which the shares of such series may be redeemed, in whole or in part, at the option of the Corporation;
(g) The obligation, if any, of the Corporation to purchase or redeem shares of such series pursuant to a sinking fund or otherwise and the price or prices at which, the period or periods within which and the terms and conditions upon which the shares of such series shall be redeemed, in whole or in part, pursuant to such obligation;
(h) The period or periods within which and the terms and conditions, if any, including the price or prices or the rate or rates of conversion and the terms and conditions of any adjustments thereof, upon which the shares of such series shall be convertible at the option of the holder into shares of any class of stock or into shares of any other series of Class A Preferred Stock, except into shares of a class having rights or preferences as to dividends or distribution of assets upon liquidation which are prior or superior in rank to those of the shares being converted;
(i) The voting rights, if any, of the shares of such series in addition to those required by law, including the number of votes per share; and
(j) Any other relative rights, preferences or limitations of the shares of the series not inconsistent herewith or with applicable law.
4. All shares of Class A Preferred Stock (a) shall rank senior to the Common Stock in respect of the right to receive dividends and the right to receive payments out of the assets of the Corporation upon voluntary or involuntary liquidation, dissolution or winding up of the Corporation, (b) shall regardless
of series be of equal rank with the Preferred Stock, and (c) shall be identical in all respects except as provided in paragraph 3 above. The shares of any one series of the Class A Preferred Stock shall be identical with each other in all respects except as to the dates from and after which dividends thereon shall be cumulative. In case the stated dividends or the amounts payable on liquidation are not paid in full, the shares of all series of the Class A Preferred Stock shall share ratably with all other shares of Class A Preferred Stock and all shares of Preferred Stock in the payment of dividends, including accumulations, if any, in accordance with the sums which would be payable on said shares if all dividends were declared and paid in full, and in any distribution of assets other than by way of dividends in accordance with the sums which would be payable on such distribution if all sums payable were discharged in full. All shares of Class A Preferred Stock redeemed, purchased or otherwise acquired by the Corporation (including shares surrendered for conversion) shall be cancelled and thereupon restored to the status of authorized but unissued shares of Class A Preferred Stock undesignated as to series.
5. Except as otherwise provided by the Board of Directors in accordance with paragraph 1 or 3 above in respect of any series of the Preferred Stock or the Class A Preferred Stock, and except as otherwise required by law, all voting rights of the Corporation shall be vested exclusively in the holders of the shares of Common Stock who shall be entitled to one vote per share.
(B) The term "Reference Package" shall initially mean 1,000 shares of Common Stock, par value $7.50 per share ("Common Stock"), of the Corporation. In the event the Corporation shall at any time after the Separation Date (as defined in the Rights Agreement, dated as of December 10, 1985 and amended as of June 13, 1989, April 30, 1993 and March 8, 1994 (as so amended and as such may be further amended from time to time, the "Rights Agreement"), between the Corporation and The Bank of New York, as Rights Agent) (1) declare or pay a dividend on any capital stock comprising part of the Reference Package payable in capital stock, (2) subdivide any capital stock comprising part of the Reference Package, (3) combine any capital stock comprising part of the Reference Package into a smaller number of shares or (4) issue in a reclassification, merger or consolidation any shares of capital stock in respect of or in lieu of any existing capital stock comprising part of the Reference Package, then and in each such case the Reference Package after such event shall be the capital stock that a holder of the Reference Package immediately prior to such event would hold thereafter as a result thereof.
(C) No full dividends shall be declared or paid or set apart for payment on the Preferred Stock of any series ranking, as to dividends, on a parity with or junior to this Series for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on this Series for all dividend payment periods terminating on or prior to the date of payment of such full cumulative dividends. When dividends are not paid in full, as aforesaid, upon the shares of this Series and any other Preferred Stock ranking on a parity as to dividends with this Series, all dividends declared upon shares of this Series and any other Preferred Stock ranking on a parity as to dividends with this Series shall be declared pro rata so that the amount of dividends declared per share on this Series and such other Preferred Stock shall in all cases bear to each other the same ratio that accumulated dividends per share on the shares of this Series and such other Preferred Stock bear to each other. Holders of shares of this Series shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends, as herein provided on this Series. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on this Series which may be in arrears.
(D) So long as any shares of this Series are outstanding, no dividend (other than a dividend in Common Stock or in any other stock ranking junior to this Series as to dividends and upon liquidation) shall be declared or paid or set aside for payment or other distribution declared or made upon the Common Stock or upon any other stock ranking junior to or on a parity with this Series as to dividends or upon liquidation, nor shall any Common Stock nor any other stock of the Corporation ranking junior to or on a parity with this Series as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation (except by conversion into or exchange for stock of the Corporation ranking junior to this Series as to dividends and upon liquidation) unless, in each case, the full cumulative dividends (including the dividend to be due upon payment of such dividend, distribution, redemption, purchase or other acquisition) on all outstanding shares of this Series shall have been, or shall contemporaneously be, paid.
(B) In the event that fewer than all the outstanding shares of this Series are to be redeemed, the number of shares to be redeemed and the method for selection of those shares shall be as determined by the Board of Directors.
(C) In the event the Corporation shall redeem shares of this Series, notice of such redemption shall be given by
first class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the redemption date, to each holder of record of the shares to be redeemed, at such holder's address as the same appears on the stock register of the Corporation. Each such notice shall state: (1) the redemption date; (2) the number of shares of this Series to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price; (4) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; and (5) that dividends on the shares to be redeemed will cease to accrue on such redemption date.
(D) Notice having been mailed as aforesaid, from and after the redemption date (unless default shall be made by the Corporation in providing money for the payment of the redemption price) dividends on the shares of this Series so called for redemption shall cease, and said shares shall no longer be deemed to be outstanding, and all rights of the holders thereof as shareholders of the Corporation (except the right to receive from the Corporation the redemption price) shall cease. Upon surrender in accordance with said notice of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), such shares shall be redeemed by the Corporation at the redemption price aforesaid. In case fewer than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof.
(E) Any shares of this Series which shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued shares of Preferred Stock, without designation as to series until such shares are once more designated as part of a particular series by the Board of Directors.
(B) Unless the vote or consent of the holders of a greater number of shares shall then be required by law, the consent of the holders of at least a majority of all of the shares of this Series and all other series of Preferred Stock ranking on a parity with shares of this Series, either as to dividends or upon liquidation, at the time outstanding, given in person or by proxy, either in writing or by a vote at a meeting called for the purpose at which holders of shares of this Series and such other series of Preferred Stock shall vote together as a single class without regard to series, shall be necessary for authorizing, effecting or validating the creation, authorization or issue of any shares of any class of stock of the Corporation ranking prior to the shares of this Series as to dividends or upon liquidation, or the reclassification of any authorized stock of the Corporation into any such prior shares, or the creation, authorization or issue of any obligation or security convertible into or evidencing the right to purchase any such prior shares;
(C) Unless the vote or consent of the holders of a greater number of shares shall then be required by law, the consent of the holders of at least a majority of all of the shares of this Series and all other series of Preferred Stock ranking on a parity with this Series, either as to dividends or upon liquidation, at the time outstanding, given in person or by proxy, either in writing or by a vote at a meeting called for the purpose at which the holders of shares of this Series and such other series of Preferred Stock shall vote together as a single class without regard to series, shall be necessary for authorizing, effecting or validating the sale, lease or conveyance of all or substantially all the property or business of the Corporation or
(D) If at the time of any annual meeting of shareholders for the election of directors a default in preference dividends on the Preferred Stock shall exist, the number of directors constituting the Board of Directors of the Corporation shall be increased by two, and the holders of the Preferred Stock of all series (whether or not the holders of such series of Preferred Stock would be entitled to vote for the election of directors if such default in preference dividends did not exist), shall have the right at such meeting, voting together as a single class without regard to series, to the exclusion of the holders of Common Stock, to elect two directors of the Corporation to fill such newly created directorships. Such right shall continue until there are no dividends in arrears upon the Preferred Stock. Whenever all arrears in dividends on the Preferred Stock then outstanding shall have been and dividends for the current quarterly dividend period shall have been paid or declared and set apart for payment, then the right of the holders of such Preferred Stock to elect such additional directors (herein called a "Preferred Director"), shall cease (but subject always to the same provisions for the vesting of such voting rights in the case of any similar future arrearages in dividends) and the terms of office of all persons elected as directors by the holders of such Preferred Stock shall forthwith terminate and the number of the Board of Directors shall be reduced accordingly. Any Preferred Director may be removed by, and shall not be removed except by, the vote of the holders of record of the outstanding shares of Preferred Stock, voting together as a single class without regard to series, at a meeting of the shareholders, or of the holders of shares of Preferred Stock, called for the purpose. So long as a default in any preference dividends on the Preferred Stock shall exist (1) any vacancy in the office of a Preferred Director may be filled (except as provided in the following clause (2)) by an instrument in writing signed by the remaining Preferred Director and filed with the Corporation and (2) in the case of the removal of any Preferred Director, the vacancy may be filled by the vote of the holders of the outstanding shares of Preferred Stock, voting together as a single class without regard to series, at the same meeting at which such removal shall be voted or at a meeting
of holders of shares of Preferred Stock called for the purpose. Each director appointed as aforesaid by the remaining Preferred Director shall be deemed, for all purposes hereof, to be a Preferred Director. For the purposes hereof, a "default in preference dividends" on the Preferred Stock shall be deemed to have occurred whenever the amount of accumulated dividends upon this Series shall be equivalent to or greater than the sum of the dividend amounts payable on the preceding six dividend payment dates or whenever the amount of accrued dividends upon any other series of the Preferred Stock shall be equivalent to six full quarterly-yearly dividends or more, and, having so occurred, such default shall be deemed to exist thereafter until, but only until, all accumulated dividends on all shares of Preferred Stock of each and every series then outstanding shall have been paid to the end of the last preceding dividend period.
Whenever holders of this Series vote as a class with holders of other series of Preferred Stock, the vote per share of all such series of Preferred Stock will be computed on the basis of one vote for each $50.00 of liquidation value.
(B) After the payment to the holders of the shares of this Series of the full preferential amounts provided for in this Section (vi), the holders of this Series as such shall have no right or claim to any of the remaining assets of the Corporation.
(C) In the event the assets of the Corporation available for distribution to the holders of shares of this Series upon any dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to paragraph (A) of this Section (vi), no such distribution shall be made on account of any shares of any other class or series of Preferred Stock ranking on a parity with the shares of this Series upon such dissolution, liquidation or winding up unless proportionate distributive amounts shall be paid on account of the shares of this Series, ratably, in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such dissolution, liquidation or winding up.
(D) Unless the dissolution, liquidation or winding up of the Corporation, the holders of shares of this
Series then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its shareholders all amounts to which such holders are entitled pursuant to paragraph (A) of this Section (vi) before any payment shall be made to the holders of any class of capital stock of the Corporation ranking junior upon liquidation to this Series.
(vii) For purposes of this Series any stock of any class or classes of the Corporation shall be deemed to rank:
(A) prior to the shares of this Series, either as to dividends or upon liquidation, if the holders of such class or classes shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of this Series;
(B) on a parity with shares of this Series, either as to dividends or upon liquidation, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share or sinking fund provisions, if any, be different from those of this Series, if the holders of such stock shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in proportion to their respective dividend rates or liquidation prices, without preference or priority, one over the other, as between the holders of such stock and the holders of shares of this Series; and
(C) junior to shares of this Series, either as to dividends or upon liquidation, if such class shall be Common Stock or if the holders of shares of this Series shall be entitled to receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of such class or classes.
Dividend Period") from the original issue date to and including the day next preceding March 1, 1993, a rate of 8.60% per annum and (2) for each quarterly dividend period thereafter, which dividend periods ("Dividend Periods") shall commence on March 1, June 1, September 1 and December 1 in each year and shall end on and include the day next preceding the first day of the next Dividend Period, a rate of 8.60% per annum of the stated value thereof. Such dividends shall be cumulative from the date of original issue of the shares of this Series and shall be payable, when and as declared by the Board of Directors, or by a duly authorized committee of said Board, on March 1, June 1, September 1 and December 1 of each year, commencing March 1, 1993. Each such dividend shall be paid to the holders of record of shares of this Series as they appear on the stock register of the Corporation on such record date, not exceeding 50 days preceding the payment date thereof, as shall be fixed by the Board of Directors, or by a duly authorized committee of said Board. Dividends on account of arrears for any past Dividend Periods may be declared and paid at any time, without reference to any regular dividend payment date, to holders of record on such date, not exceeding 45 days preceding the payment date thereof, as may be fixed by the Board, or by any such committee.
(B) No full dividends shall be declared or paid or set apart for payment on the Preferred Stock of any series ranking, as to dividends, on a parity with or junior to this Series for any period unless full cumulative dividends then due to be paid have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on this Series for all dividend payment periods terminating on or prior to the date of payment of such full cumulative dividends. When dividends are not paid in full, as aforesaid, upon the shares of this Series and any other Preferred Stock ranking on a parity as to dividends with this Series, all dividends declared upon shares of this Series and any other Preferred Stock ranking on a parity as to dividends with this Series shall be declared pro rata so that the amount of dividends declared per share on this Series and such other Preferred Stock shall in all cases bear to each other the same ratio that accumulated dividends per share on the shares of this Series and such other Preferred Stock bear to each other. Holders of shares of this Series shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends, as herein provided on this Series. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on this Series which may be in arrears.
(C) So long as any shares of this Series are outstanding, no dividend (other than a dividend in Common Stock or in any other stock ranking junior to this Series as to dividends and upon liquidation and other than as provided in paragraph (B) of this Section (ii)) shall be declared or paid or set aside for payment or other distribution, declared or made upon the Common
Stock or upon any other stock ranking junior to or on a parity with this Series as to dividends or upon liquidation, nor shall any Common Stock nor any other stock of the Corporation ranking junior to or on parity with this Series as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation (except by conversion into or exchange for stock of the Corporation ranking junior to this Series as to dividends and upon liquidation) unless, in each case, the full cumulative dividends on all outstanding shares of this Series shall have been paid for all past dividend payment periods.
(D) Dividends payable on each share of the Series for each Dividend Period shall be computed by dividing the per annum dividend by four. Dividends payable on the shares of this Series for any period less than a full Dividend Period, including the Initial Dividend Period, shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
the Corporation or by any duly authorized committee thereof in its sole discretion to be fair and equitable, provided that such method satisfies any applicable requirements of any securities exchange on which the shares of this Series are listed.
(D) In the event the Corporation shall redeem shares of this Series, notice of such redemption (a "Notice of Redemption") shall be given by first class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the redemption date, to each holder of record of the shares of this Series to be redeemed as they appear on the stock register of the Corporation on the 7th day preceding the date of such Notice of Redemption, at such holder's address as the same appears on such stock register. Each such notice shall state: (1) the redemption date; (2) the number of shares of this Series to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price (specifying the amount of accrued and unpaid dividends to be included therein); (4) the place or places (which shall be in The City of New York) where certificates for such shares are to be surrendered for payment of the redemption price; and (5) that dividends on the shares to be redeemed will cease to accrue on such redemption date.
(F) Any of the shares of this Series which shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued shares of Preferred Stock, without designation as to series until such shares are once more designated as part of a particular series by the Board of Directors of the Corporation or any duly authorized committee thereof.
shares into or exchange such shares for shares of any other class or classes or of any other series of any class or classes of capital stock of the Corporation.
(A) Unless the vote or consent of the holders of a greater number of shares shall then be required by law, the consent of the holders of at least two-thirds of all of the shares of this Series at the time outstanding, given in person or by proxy, either in writing or by a vote at a meeting called for the purpose at which the holders of shares of this Series shall vote together as a separate class, shall be necessary for authorizing, effecting or validating the amendment, alteration or repeal of any of the provisions of the Certificate of Incorporation of the Corporation or of any certificate amendatory thereof or supplemental thereto (including any Certificates of Amendment or any similar document relating to any series of Preferred Stock) so as to affect adversely the preferences, rights, powers or privileges of this Series. For purposes of this provision, an increase in the authorized number of shares of the class of Preferred Stock or the authorization, creation or issue, or increase in the authorized amount, of any class or series of capital stock of the Corporation ranking on a parity with the shares of this Series either as to dividends or upon liquidation, or both, shall not be deemed to affect adversely the preferences, rights, powers or privileges of this Series.
(B) Unless the vote or consent of the holders of a greater number of shares shall then be required by law, the consent of the holders of at least two-thirds of all of the shares of this Series and all other series of Preferred Stock ranking on a parity with shares of this Series, either as to dividends or upon liquidation, at the time outstanding, given in person or by proxy, either in writing or by a vote at a meeting called for the purpose at which the holders of shares of this Series and such other series of Preferred Stock shall vote together as a single class without regard to series, shall be necessary for authorizing, effecting or validating the creation, authorization or issue of any shares of any class of stock of the Corporation ranking prior to the shares of this Series as to dividends or upon liquidation, or the reclassification of any authorized stock of the Corporation into any such prior shares, or the creation, authorization or issue of any obligation or security convertible into or evidencing the right to purchase any such prior shares.
(C) If at the time of any annual meeting of shareholders for the election of directors a default in preference dividends on any series of Preferred Stock shall exist, the number of directors constituting the Board of Directors of the Corporation shall be increased by two, and the holders of the Preferred Stock of all series (whether or not the holders of such series of Preferred Stock would be entitled to vote for the
election of directors if such default in preference dividends did not exist), shall have the right at such meeting, voting together as a single class without regard to series, to the exclusion of the holders of Common Stock, to elect two directors of the Corporation to fill such newly created directorships. Such right shall continue until there are no dividends in arrears upon the Preferred Stock of any series. Whenever all arrears in dividends on the Preferred Stock then outstanding shall have been and dividends for the current quarterly dividend period shall have been, paid or declared and set apart for payment, then the right of the holders of such Preferred Stock to elect such additional directors (herein called a "Preferred Director"), shall cease (but subject always to the same provisions for the vesting of such voting rights in the case of any similar future arrearages in dividends) and the terms of office of all persons elected as directors by the holders of such Preferred Stock shall forthwith terminate and the number of the Board of Directors shall be reduced accordingly. Any Preferred Director may be removed by, and shall not be removed except by, the vote of the holders of record of the outstanding shares of Preferred Stock, voting together as a single class without regard to series, to the exclusion of the holders of Common Stock, at a meeting of the shareholders or of the holders of shares of Preferred Stock, called for the purpose. So long as a default in any preference dividends on the Preferred Stock shall exist (1) any vacancy in the office of a Preferred Director may be filled (except as provided in the following clause (2)) by an instrument in writing signed by the remaining Preferred Director and filed with the Corporation and (2) in the case of the removal of any Preferred Director, the vacancy may be filled by the vote of the holders of the outstanding shares of Preferred Stock, voting together as a single class without regard to series, to the exclusion of the holders of Common Stock, at the same meeting at which such removal shall be voted or at a meeting of holders of shares of Preferred Stock called for the purpose. Each director appointed as aforesaid by the remaining Preferred Director shall be deemed, for all purposes hereof, to be a Preferred Director. For the purposes hereof, a "default in preference dividends" on the Preferred Stock shall be deemed to have occurred whenever the amount of accrued dividends upon any series of the Preferred Stock shall be equivalent to six full quarter-yearly dividends and, having so occurred, such default shall be deemed to exist thereafter until, but only until, all accrued dividends on all shares of Preferred Stock of each and every series then outstanding shall have been paid to the end of the last preceding quarterly dividend period.
Whenever holders of shares of this Series vote as a class with holders of other series of Preferred Stock, the vote per share of all such series of Preferred Stock will be computed on the basis of one vote for each $625.00 of liquidation value.
assets of the Corporation, before any payment or distribution shall be made on the Common Stock or on any other class of stock ranking junior to the Preferred Stock upon liquidation, the amount of $625 per share, plus a sum equal to all dividends (whether or not earned or declared) on such shares accumulated and unpaid thereon to the date of final distribution.
(B) After the payment to the holders of the shares of this Series of the full preferential amounts provided for in this Section (vi), the holders of this Series as such shall have no right or claim to any of the remaining assets of the Corporation.
(C) In the event the assets of the Corporation available for distribution to the holders of shares of this Series upon any dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to paragraph (A) of this Section (vi), no such distribution shall be made on account of any shares of any other class or series of Preferred Stock ranking on a parity with the shares of this Series upon such dissolution, liquidation or winding up unless proportionate distributive amounts shall be paid on account of the shares of this Series, ratably, in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such dissolution, liquidation or winding up.
(D) Upon the dissolution, liquidation or winding up of the Corporation, the holders of shares of this Series then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its shareholders all amounts to which such holders are entitled pursuant to paragraph (A) of this Section (vi) before any payment shall be made to the holders of any class of capital stock of the Corporation ranking junior upon liquidation to this Series.
(E) Neither the consolidation nor merger of the Corporation into or with another corporation or corporations, nor the sale, lease or exchange (for cash, shares of equity stock, securities or other consideration) of all or substantially all of the property and assets of the Corporation, nor the distribution to the stockholders of the Corporation of all or substantially all of the consideration for such sale, unless such consideration (apart from assumption of liabilities) or the net proceeds thereof consists substantially entirely of cash, shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Section (vi).
(vii) For purposes of this Series any stock of any class or classes of capital stock of the Corporation, or any series of shares of any such class, shall be deemed to rank:
(A) prior to the shares of this Series, either as to dividends or upon liquidation, if the holders of such class or classes or series shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of this Series;
(B) on a parity with shares of this Series, either as to dividends or upon liquidation, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share or sinking fund provisions, if any, be different from those of this Series, if the holders of such stock shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in proportion to their respective dividend rates or liquidation prices, without preference or priority, one over the other, as between the holders of such stock and the holders of shares of this Series; and
(C) junior to shares of this Series, either as to dividends or upon liquidation, if such class or classes or series shall be Common Stock or if the holders of shares of this Series shall be entitled to receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of such class or classes or series.
entitled to receive, when and as declared by the Board of Directors of the Corporation out of funds legally available therefor, cumulative dividends at the rate of $1.9375 per year on each share of Preferred Stock and no more, except that the dividend with respect to the initial dividend period shall be determined as provided in paragraph (B) of this Section (ii).
(B) (1) If the Original Issue Date occurs subsequent to the record date (a "Series B Record Date") for a dividend payment in respect of the Series B 7.75% Cumulative Convertible Preferred Stock, par value $2.00 per share (the "Series B Preferred Stock"), of National Community Banks, Inc. ("NCB") and prior to the corresponding dividend payment date (a "Series B Dividend Payment Date"), holders of shares of Preferred Stock who were holders of record of shares of Series B Preferred Stock on such Series B Record Date shall be entitled to receive, commencing on the Dividend Payment Date next succeeding the Original Issue Date, when and as declared by the Board of Directors of the Corporation out of funds legally available therefor, an amount per share of Preferred Stock equal to the sum of (aa) the excess, if any, of (y) the amount of dividends that would have accrued on a share of Series B Preferred Stock from the first day of the dividend period for the Series B Preferred Stock in which the Original Issue Date occurs to the Series B Dividend Payment Date immediately succeeding the Original Issue Date over (z) the amount of dividends declared and paid or set aside for payment on a share of Series B Preferred Stock on the Series B Dividend Payment Date immediately succeeding the Original Issue Date and (bb) the amount of dividends accrued and unpaid, if any, on a share of Series B Preferred Stock as of the close of business on the Series B Dividend Payment Date immediately preceding the Original Issue Date, and such dividend shall be cumulative from such date for all purposes hereof.
(2) If the Original Issue Date occurs after a Series B Dividend Payment Date and prior to the record date for the immediately succeeding Series B Dividend Payment Date, holders of shares of Preferred Stock shall be entitled to receive, commencing on the Dividend Payment Date immediately succeeding the Original Issue Date, when and as declared by the Board of Directors of the Corporation out of funds legally available therefor, an amount per share of Preferred Stock equal to the sum of (aa) the amount of dividends that would have accrued on a share of Series B Preferred Stock from the first day of the dividend period for the Series B Preferred Stock in which the Original Issue Date occurs to the Series B Dividend Payment Date immediately succeeding the Original Issue Date and (bb) the amount of dividends accrued and unpaid, if any, on a share of Series B Preferred Stock as of the close of business on the Series B Dividend Payment Date immediately preceding the Original Issue Date, and such dividend shall be cumulative from such date for all purposes hereof.
(C) The Board of Directors may fix a record date for the determination of holders of shares of Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be not more than 45 days prior to the date fixed for the payment thereof.
(D) On each Dividend Payment Date all dividends which shall have accrued on each share of Preferred Stock outstanding on such Dividend Payment Date shall accumulate and be deemed to become "due". Any dividend which shall not be paid on the Dividend Payment Date on which it shall become due shall be deemed to be "past due" until such dividend shall be paid or until the share of Preferred Stock with respect of which such dividend became due shall no longer be outstanding, whichever is the earlier to occur. No interest or sum of money in lieu of interest shall be payable in respect of any dividend payment or payments which are past due. Dividends paid on shares of Preferred Stock in an amount less than the total amount of such dividends at the time accumulated and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding.
(E) If there shall be outstanding shares of any class or series of preferred stock of the Corporation ranking junior to or on parity with the Preferred Stock as to dividends, no full dividends shall be declared or paid or set apart for payment on any such other class or series for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Preferred Stock for all dividend payment periods terminating on or prior to the date of payment of such full cumulative dividends. When dividends are not paid in full or are past due on the shares of the Preferred Stock and on any other class or series of preferred stock ranking on a parity as to dividends with the Preferred Stock all dividends declared on all outstanding shares of the Preferred Stock and shares of such other class or series of preferred stock shall be declared pro rata so that the amount of dividends declared per share on the Preferred Stock and such other preferred stock shall in all cases bear to each other the same ratio that accrued and unpaid dividends per share on the shares of the Preferred Stock and such other preferred stock to the date of such dividend payment bear to each other. Holders of shares of Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or securities, in excess of full cumulative dividends, as herein provided, on the Preferred Stock.
(F) So long as any shares of Preferred Stock are outstanding, no dividend (other than (1) a dividend or distribution in Common Stock or in any other stock ranking junior to the Preferred Stock as to dividends and upon liquidation, dissolution or winding up, (2) dividends or distributions of the Corporation's preferred stock purchase rights (the "Rights"), the terms of which are set forth in the Rights Agreement, dated as of
December 10, 1985 and amended as of June 13, 1989, April 30, 1993 and March 8, 1994 (as so amended and as amended from time to time, the "Rights Agreement"), between the Corporation and The Bank of New York, as Rights Agent or (3) the issuance of such Rights in connection with the issuance of any other capital stock of the Corporation ranking junior to or on a parity with the Preferred Stock as to dividends and upon liquidation, dissolution or winding up and other than as provided in paragraph (E) of this Section (ii)) shall be declared or paid or set aside for payment or other distribution declared or made upon the Common Stock or upon any other stock ranking junior to, or on a parity with, the Preferred Stock as to dividends or upon liquidation, dissolution or winding up, nor shall any Common Stock or any other stock of the Corporation ranking junior to, or on a parity with, the Preferred Stock as to dividends or upon liquidation, dissolution or winding up, be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation (except for conversion of such junior or parity stock into, or exchange of such junior or parity stock for, stock of the Corporation ranking junior to the Preferred Stock as to dividends and upon liquidation, dissolution, or winding up, and except for the redemption of the Rights at their current redemption price) unless, in each case, the full cumulative dividends on all outstanding shares of the Preferred Stock shall have been paid or declared and set aside for payment for all past dividend payment periods.
(H) Dividends payable on each share of the Preferred Stock for each full dividend period shall be computed by dividing the per annum dividend by four. Dividends payable on the shares of the Preferred Stock for any period less than a full dividend period, other than the initial dividend period, shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
(A) Unless the vote or consent of the holders of a greater number of shares shall then be required by law, the consent of the holders of at least 66-2/3% of all of the shares of
the Preferred Stock and all other classes and series of preferred stock of the Corporation ranking on a parity with shares of the Preferred Stock, either as to dividends or upon liquidation, dissolution or winding up, at the time outstanding, given in person or by proxy, either in writing or by a vote at a meeting called for the purpose at which holders of shares of the Preferred Stock and such other classes and series of Preferred Stock of the Corporation shall vote together as a single class without regard to series, shall be necessary for authorizing, effecting or validating the creation, authorization or issuance of, or reclassification of any authorized stock of the Corporation into, or creation, authorization or issuance of any obligation or security convertible into or evidencing a right to purchase any shares of, or increase in the authorized or issued amount of, any class or series of stock (including any class or series of preferred stock) ranking prior (as that term is hereinafter defined in this Section (iii)) to the Preferred Stock with respect to the payment of dividends or the distribution of assets upon liquidation, dissolution or winding up.
(B) Unless the vote or consent of the holders of a greater number of shares shall then be required by law, the consent of the holders of at least 66-2/3% of all of the shares of the Preferred Stock, and any one or more classes or series of preferred stock of the Corporation similarly affected, at the time outstanding, given in person or by proxy, either in writing or by a vote at a meeting called for the purpose at which the holders of shares of such classes or series of preferred stock shall vote together as a separate class, shall be necessary for authorizing, effecting or validating the amendment, alteration or repeal, whether by merger, consolidation or otherwise, of any of the provisions of the Certificate of Incorporation (or any certificate amendatory thereof or supplemental thereto providing for the capital stock of the Corporation including, without limitation, this Certificate) which would adversely affect the preferences, rights, powers or privileges of holders of shares of the Preferred Stock and such other classes or series of preferred stock of the Corporation. Any increase in the amount of authorized Preferred Stock or the creation and issuance of other classes or series of preferred stock ranking on a parity with or junior to the Preferred Stock with respect to dividends and upon liquidation, dissolution or winding up shall not be deemed to affect adversely the rights of the holders of shares of Preferred Stock.
The foregoing voting provisions shall not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding shares of Preferred Stock shall have been redeemed or sufficient funds shall have been deposited in trust to effect such redemption.
Any class or classes of stock of the Corporation shall be deemed to rank:
(1) prior to the Preferred Stock as to dividends or as to distribution of assets upon liquidation, dissolution or winding up if the holders of such class shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of Preferred Stock; and
(2) on a parity with the Preferred Stock as to dividends or as to distribution of assets upon liquidation, dissolution or winding up, whether or not the dividend rates, dividend payment dates, or redemption or liquidation prices per share thereof be different from those of the Preferred Stock, if the holders of such class of stock and the Preferred Stock shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in proportion to their respective dividend rates or liquidation prices, without preference or priority one over the other.
Whenever holders of shares of the Preferred Stock vote as a class with holders of other classes or series of preferred stock of the Corporation, the vote per share of all such classes or series of preferred stock of the Corporation will be computed on the basis of one vote for each $25.00 of liquidation value.
series of preferred stock ranking on such a parity) as hereinafter set forth. The right of holders of Preferred Stock, voting separately as a class to elect (either alone or together with the holders of shares of any one or more other classes or series of preferred stock ranking on such a parity) members of the Board of Directors of the Corporation as aforesaid shall continue until such time as all dividends accumulated on the Preferred Stock shall have been paid in full, at which time such right shall terminate, except as herein or by law expressly provided, subject to revesting in the event of each and every subsequent default of the character above mentioned.
Each director elected by the holders of shares of Preferred Stock shall continue to serve as such director for the full term for which he shall have been elected, notwithstanding that prior to the end of such term such arrearage shall cease to exist. If the office of any director elected by the holders of Preferred Stock voting as a class becomes vacant by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, the remaining director elected by the holders of Preferred Stock voting as a class may choose a successor who shall hold office for the unexpired term in respect of which such vacancy occurred. Whenever the term of office of the directors elected by the holders of Preferred Stock voting as a class shall end and the special voting powers vested in the holders of Preferred Stock as provided in this Section (iv) shall have expired, the number of directors shall be such number as may be provided for in the By-Laws irrespective of any increase made pursuant to the provisions of this Section (iv).
The shares of Preferred Stock shall be deemed to be shares of a series of the same class of preferred stock as each series of preferred stock, without par value, outstanding on the Original Issue Date with respect to determining holders of preferred stock entitled to vote under any provision of any such series of preferred stock, without par value.
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
1996 $26.16 2000 $25.39
1997 25.97 2001 25.19
1998 25.78 2002 and 25.00
thereafter
1999 25.58
|
(B) In the event the Corporation shall elect to redeem
shares of Preferred Stock, the Corporation shall give notice to the holders of
record of shares of the Preferred Stock being so redeemed, not less than 30 nor
more than 60 days prior to such redemption, by first class mail, postage
prepaid, at their addresses as shown on the stock registry books of the
Corporation that said shares are being redeemed, provided that without limiting
the obligation of the Corporation hereunder to give the notice provided in this
Section (v) (B), the failure of the Corporation to give such notice shall not
invalidate any corporate action by the Corporation. Each such notice shall
state: (1) the redemption date; (2) the number of shares of Preferred Stock to
be redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (3) the
redemption price; (4) the place or places where certificates for such shares are
to be surrendered for payment of the redemption price; (5) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and (6) that
such holder has the right to convert such shares into a number of shares of
Common Stock prior to the close of business on the tenth day preceding such
redemption date.
(D) Notice having been mailed as aforesaid, from and after the applicable redemption date (unless default shall be made by the Corporation in providing money for the payment of the redemption price), dividends on the shares of Preferred Stock to be redeemed on such redemption date shall cease to accrue, and said shares shall no longer be outstanding, and all rights of the holders thereof as shareholders of the Corporation (except the right to receive from the Corporation the redemption price) shall cease; provided that, notwithstanding the foregoing, if notice of redemption has been given pursuant to this Section (v) and any holder of shares of Preferred Stock shall, prior to the close of business on the tenth day preceding the redemption date, surrender for conversion any or all of the shares to be redeemed held by such holder in accordance with Section (vi) then the conversion of such shares to be redeemed shall become effective as provided in Section (vi). Upon surrender of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), such shares shall be redeemed by the Corporation at the redemption price aforesaid. In case fewer than all the shares represented by
any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof.
(E) Any shares of Preferred Stock which shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued shares of Class A Preferred Stock, par value $2.00 per share, without designation as to series until such shares are once more designated as part of a particular series by the Board of Directors of the Corporation.
(B) In order to exercise the conversion privilege, the holder of shares of Preferred Stock shall surrender the certificates representing such shares, accompanied by transfer instruments satisfactory to the Corporation and sufficient to transfer the Preferred Stock being converted to the Corporation free of any adverse interest, at any of the offices or agencies maintained for such purpose by the Corporation ("Conversion Agent") and shall give written notice to the Corporation at such Conversion Agent that the holder elects to convert such shares. Such notice shall also state the names, together with addresses, in which the certificates for shares of Common Stock which shall be issuable on such conversion shall be issued. As promptly as practicable after the surrender of such shares of Preferred Stock as aforesaid, the Corporation shall issue and shall deliver at such Conversion Agent to such holder, or on his written order, a certificate for the number of full shares of Common Stock issuable upon the conversion of such shares in accordance with the
provisions hereof. Balance certificates will be issued for the remaining shares of Preferred Stock in any case in which fewer than all of the shares of Preferred Stock represented by a certificate are converted. Each conversion shall be deemed to have been effected immediately prior to the close of business on the date on which shares of Preferred Stock shall have been so surrendered and such notice received by the Corporation as aforesaid, and the persons in whose names any certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become the holders of record of the Common Stock represented thereby at such time, unless the stock transfer books of the Corporation shall be closed on the date on which shares of Preferred Stock are so surrendered for conversion, in which event such conversion shall be deemed to have been effected immediately prior to the close of business on the next succeeding day on which such stock transfer books are open, and such persons shall be deemed to have become such holders of record of the Common Stock at the close of business on such later day. In either circumstance, such conversion shall be at the Conversion Price in effect on the date upon which such share shall have been surrendered and such notice received by the Corporation.
(C) In the case of any share of Preferred Stock which is converted after any record date with respect to the payment of a dividend on the Preferred Stock and on or prior to the next succeeding Dividend Payment Date, the dividend due on such Dividend Payment Date shall be payable on such Dividend Payment Date to the holder of record of such shares as of such preceding record date notwithstanding such conversion. Shares of Preferred Stock surrendered for conversion during the period from the close of business on any record date with respect to the payment of a dividend on the Preferred Stock next preceding any Dividend Payment Date to the opening of business on such Dividend Payment Date shall (except in the case of shares of Preferred Stock which have been called for redemption on a redemption date within such period) be accompanied by payment in New York Clearing House or other funds acceptable to the Corporation in an amount equal to the dividend payable on such Dividend Payment Date on the shares of Preferred Stock being surrendered for conversion. The dividend with respect to a share of Preferred Stock called for redemption on a redemption date during the period from the close of business on any record date with respect to the payment of a dividend on the Preferred Stock next preceding any Dividend Payment Date to the opening of business on such Dividend Payment Date shall be payable on such Dividend Payment Date to the holder of record of such share on such dividend record date notwithstanding the conversion of such share of Preferred Stock after such record date and prior to such Dividend Payment Date, and the holder converting such share of Preferred Stock need not include a payment of such dividend amount upon surrender of such share of Preferred Stock for conversion. Except as provided in this paragraph, no payment or adjustment shall be made upon any conversion on account of any dividends accrued on shares of
Preferred Stock surrendered for conversion or on account of any dividends on the Common Stock issued upon conversion.
(D) No fractional shares or scrip representing fractions of shares of Common Stock shall be issued upon conversion of any shares of Preferred Stock. Instead of any fractional interest in a share of Common Stock which would otherwise be deliverable upon the conversion of a share of Preferred Stock, the Corporation shall pay to the holder of such share of Preferred Stock an amount in cash (computed to the nearest cent, with one-half cent being rounded upward) equal to such fraction multiplied by the reported closing sale price (as defined in subparagraph (E)(6) of this Section (vi)) of the Common Stock at the close of business on the day on which such share or shares of Preferred Stock are surrendered for conversion in the manner set forth above, or if such date is not a trading date, on the next succeeding trading date. If more than one certificate representing shares of Preferred Stock shall be surrendered for conversion at one time by the same holder, the number of full shares issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Preferred Stock represented by such certificates, or the specified portions thereof to be converted, so surrendered.
(E) The Conversion Price shall be adjusted from time to time as follows:
(1) In case the Corporation shall pay or make a dividend or other distribution on any class of capital stock of the Corporation in Common Stock, the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this subparagraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Corporation will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Corporation.
(2) In case the Corporation shall issue rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in subparagraph (4) below) of the Common
Stock on the date fixed for the determination of shareholders entitled to receive such rights or warrants (other than pursuant to a dividend reinvestment plan), the Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this subparagraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Corporation will not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Corporation.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Corporation shall, by dividend or otherwise, distribute to all holders of its Common Stock (aa) evidences of its indebtedness, (bb) cash or other assets (including securities, but excluding any rights or warrants referred to in subparagraph (2) above, any regular quarterly dividend payable solely in cash out of retained earnings of the Corporation that may from time to time be fixed by the Board of Directors of the Corporation and any dividend or distribution referred to in subparagraph (1) above) or (cc) any combination thereof, then in each case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which paragraph (F) below applies) shall be deemed to involve (aa) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of
shareholders entitled to receive such distribution" and the "date fixed for such
determination" within the meaning of subparagraph (4) above), and (bb) a
subdivision or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of subparagraph
(3) above).
(6) For the purpose of any computation under subparagraphs (2) and (4) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices for the five consecutive trading days selected by the Board of Directors commencing no more than 20 trading days before and ending no later than the day before the day in question. The closing price for each day shall be the reported last sale price, regular way, or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in either case as reported on the New York Stock Exchange Composite Tape or, if the Common Stock is not listed or admitted to trading on the New York Stock Exchange at such time, on the principal national securities exchange on which the Common Stock is listed or admitted to trading, or, if not listed or admitted to trading on any national securities exchange, on the National Market System of the National Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if the Common Stock is not quoted on the NASDAQ National Market System, the average of the closing bid and asked prices on such day in the over- the-counter market as reported by NASDAQ or, if bid and asked prices for the Common Stock on each such day shall not have been reported through NASDAQ, the average of the bid and asked prices for such date as furnished by any New York Stock Exchange member firm regularly making a market in the Common Stock selected from time to time by the Board of Directors of the Corporation for such purpose or, if no such quotations are available, the fair market value of the Common Stock as determined by a New York Stock Exchange member firm regularly making a market in the Common Stock selected from time to time by the Board of Directors of the Corporation for such purpose.
(8) Whenever the Conversion Price is adjusted as herein provided, (aa) the Corporation shall promptly file with any Conversion Agent a certificate of a firm of independent public accountants setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, and the manner of computing the same, which certificate shall be conclusive evidence of the correctness of such adjustment, and (bb) a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price shall forthwith be given by the Corporation to any Conversion Agent and mailed by the Corporation to each holder of shares of Preferred Stock at their last address as the same appears on the books of the Corporation.
(F) In case of any consolidation of the Corporation
with, or merger of the Corporation into, any other entity (other than a merger
or consolidation in which the Corporation is the continuing Corporation) or any
sale or conveyance to another corporation of the property of the Corporation as
an entirety or substantially as an entirety, or in the case of a statutory
exchange of securities with another Corporation, the Conversion Price shall not
be adjusted but each holder of a share of Preferred Stock then outstanding shall
have the right thereafter to convert such share only into the kind and amount of
securities, cash and other property which such holder would have owned or have
been entitled to receive immediately after such consolidation, merger, sale,
conveyance or exchange had such share of Preferred Stock been converted
immediately prior to such consolidation, merger, sale, conveyance or exchange.
Provision shall be made in any such consolidation, merger, sale, conveyance or
exchange for adjustments in the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Section
(vi)(E). The above provisions
shall similarly apply to successive consolidations, mergers, sales, conveyances or exchanges.
For purposes of this Section (vi), "Common Stock" includes any stock of any class of the Corporation which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation and which is not subject to redemption by the Corporation. However, subject to the provisions of paragraph (F) above, shares issuable on conversion of shares of Preferred Stock shall include only shares of the class designated as Common Stock of the Corporation on the Original Issue Date, or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation and which are not subject to redemption by the Corporation.
In case:
(1) the Corporation shall declare a dividend (or any
other distribution) on its Common Stock that would cause an adjustment to the
Conversion Price of the Preferred Stock pursuant to the terms of subparagraph
(1) or subparagraph (4) of paragraph (E) above (including such an adjustment
that would occur but for the terms of the first sentence of subparagraph (7) of
paragraph (E) above); or
(2) the Corporation shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any other rights; or
(3) of any reclassification of the Common Stock of the Corporation (other than a subdivision or combination of its outstanding shares of Common Stock), or of any consolidation, merger or share exchange to which the Corporation is a party and for which approval of any shareholders of the Corporation is required, or of the sale or conveyance of the property of the Corporation as an entirety or substantially as an entirety; or
(4) of the voluntary or involuntary dissolution, liquidation or winding up of the Corporation;
then the Corporation shall cause to be filed with any Conversion Agent, and shall cause to be mailed to all holders of shares of Preferred Stock at each such holder's last address as the same appears on the books of the Corporation, at least 20 days (or 10 days in any case specified in clause (1) or (2) above) prior to the applicable record or effective date hereinafter specified, a notice stating (aa) the date on which a record is to be taken for the purpose of such dividend, distribution, rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution, rights or warrants are to be determined, or (bb) the date on which such reclassification, consolidation, merger, share exchange, sale, conveyance, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, share exchange, sale, conveyance, dissolution, liquidation or winding up. Neither the failure to give such notice nor any defect therein shall affect the legality or validity of the proceedings described in clauses (1) through (4) above.
The Corporation covenants that all shares of Common Stock which may be delivered upon conversions of shares of Preferred Stock will upon delivery be duly and validly issued and fully paid and non-assessable, free of all liens and charges and not subject to any preemptive rights. The Corporation further covenants that, if necessary, it shall reduce the par value of the Common Stock so that all shares of Common Stock delivered upon conversion of shares of Preferred Stock are fully paid and non-assessable.
The Corporation covenants that it will at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued shares of Common Stock or its issued shares of Common Stock held in its treasury, or both, for the purpose of effecting conversions of shares of Preferred Stock, the full number of shares of Common Stock deliverable upon the conversion of all outstanding shares of Preferred Stock not theretofore converted. For purposes of this reservation of Common Stock, the number of shares of Common Stock which shall be deliverable upon the conversion of all outstanding shares of Preferred Stock shall be computed as if at the time of computation all outstanding shares of Preferred Stock were held by a single holder. The issuance of shares of Common Stock upon conversion of shares of Preferred Stock is authorized in all respects.
Each share of Common Stock issued upon conversion of shares of Preferred Stock shall be entitled to receive the appropriate number of Rights, if any, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as provided by the terms of the Rights Agreement as in effect at the time of such conversion. Notwithstanding anything else to the contrary in this Section (vi), except as expressly provided in paragraph (E)(4) hereof there shall not be any adjustment to the conversion privilege or Conversion Price as a result of (1) the distribution of separate certificates representing the Rights, (2) the occurrence of certain events entitling holders of Rights to receive, upon exercise thereof, Common Stock of the Company or capital stock of another corporation, or (3) the exercise of such Rights in accordance with the Rights Agreement. As used herein, "Rights" means the Preferred Stock purchase rights of the Corporation, the terms of which are set forth in the Rights Agreement or any similar rights issued pursuant to a similar agreement.
If upon any Liquidation of the Corporation, the assets available for distribution to the holders of Preferred Stock and any other stock of the Corporation ranking on a parity with the Preferred Stock upon Liquidation issued by the Corporation which shall then be outstanding (hereinafter in this paragraph called the "Total Amount Available") shall be insufficient to pay the holders of all outstanding shares of Preferred Stock and all other such parity stock the full amounts (including all dividends accrued and unpaid) to which they shall be entitled by reason of such Liquidation of the Corporation, then there shall be paid to the holders of the Preferred Stock in connection with such Liquidation of the Corporation, an amount equal to the product derived by multiplying the Total Amount Available times a fraction, the numerator of which shall be the full amount to which the holders of the Preferred Stock shall be entitled under the terms of the preceding paragraph by reason of such Liquidation of the Corporation and the denominator of which shall be the total amount which would have been distributed by reason of such Liquidation of the Corporation with respect to the
Preferred Stock upon Liquidation then outstanding had the Corporation possessed sufficient assets to pay the maximum amount which the holders of all such stock would be entitled to receive in connection with such Liquidation of the Corporation.
The voluntary sale, conveyance, lease, exchange or transfer of the property of the Corporation as an entirety or substantially as an entirety, or the merger or consolidation of the Corporation into or with any other corporation, or the merger of any other corporation into the Corporation, or any purchase or redemption of some or all of the shares of any class or series of stock of the Corporation, shall not be deemed to be a Liquidation of the Corporation for the purposes of this Section (vii) (unless in connection therewith the Liquidation of the Corporation is specifically approved).
The holder of any shares of Preferred Stock shall not be entitled to receive any payment owed for such shares under this Section (vii) until such holder shall cause to be delivered to the Corporation (A) the certificate or certificates representing such shares of Preferred Stock and (B) transfer instrument or instruments satisfactory to the Corporation and sufficient to transfer such shares of Preferred Stock to the Corporation free of any adverse interest. As in the case of the redemption price, no interest shall accrue on any payment upon Liquidation after the due date thereof.
After payment of the full amount of the liquidating distribution to which they are entitled, the holders of shares of the Preferred Stock will not be entitled to any further participation in any distribution of assets by the Corporation.
been satisfied within two years after the establishment of the trust for such funds, then (1) such funds shall be returned to the Corporation upon its request; (2) after such return, such funds shall be free of any trust which shall have been impressed upon them; (3) the person entitled to the payment for which such funds shall have been originally intended shall have the right to look only to the Corporation for such payment, subject to applicable escheat laws; and (4) the trustee which shall have held such funds shall be relieved of any responsibility for such funds upon the return of such funds to the Corporation.
Any payment which may be owed for the payment of the redemption price for any shares of the Preferred Stock pursuant to Section (v) or the payment of any amount distributable with respect to the shares of the Preferred Stock under Section (vii) shall be deemed to have been "paid or properly provided for" upon the earlier to occur of: (1) the date upon which funds sufficient to make such payment shall be deposited in a manner contemplated by the preceding paragraph or (2) the date upon which a check payable to the person entitled to receive such payment shall be delivered to such person or mailed to such person at the address of such person then appearing on the books of the Corporation.
FIFTH: The Secretary of State of the State of New York is hereby designated as agent of the Corporation upon whom process against it may be served. The post office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him is One Wall Street, New York, New York 10286, Attn: Legal Department, Head of Litigation.
SIXTH: No holder of shares of the Corporation of any class, now or hereafter authorized, shall have any preferential or preemptive right to subscribe for, purchase or receive any shares of the Corporation of any class, now or hereafter authorized, or any options or warrants for such shares, or any rights to subscribe to or purchase such shares, or any securities convertible into or exchangeable for such shares, which may at any time be issued, sold or offered for sale by the Corporation.
IN WITNESS WHEREOF, the undersigned have signed this restated certificate of incorporation on May 8, 2001 and affirm the statements contained herein as true under the penalties of perjury.
THE BANK OF NEW YORK COMPANY, INC.
By /s/ Thomas A. Renyi ------------------------------------ Thomas A. Renyi Chairman and Chief Executive Officer By /s/ Patricia A. Bicket ------------------------------------ Patricia A. Bicket Assistant Secretary |
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the Registration Statement on Form S-3 and related Prospectus of The Bank of New York Company, Inc. (the "Company") for the shelf registration of $1,600,000,000 of Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Trust Preferred Securities, and to the incorporation by reference therein of our report dated January 26, 2001, with respect to the consolidated financial statements of the Company included in its Annual Report (Form 10-K) for the year ended December 31, 2000, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
New York, New York
June 7, 2001
|
EXHIBIT 24.1
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [J. Carter Bacot] ------------------------------ J. CARTER BACOT |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [Richard Barth] ------------------------------ RICHARD BARTH |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [Frank J. Biondi, Jr.] ------------------------------ FRANK J. BIONDI, JR. |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [William R. Chaney] ------------------------------ WILLIAM R. CHANEY |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [Nicholas M. Donofrio] ------------------------------ NICHOLAS M. DONOFRIO |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [Alan R. Griffith] ------------------------------ ALAN R. GRIFFITH |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [Gerald L. Hassell] ------------------------------ GERALD L. HASSELL |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [Richard J. Kogan] ------------------------------ RICHARD J. KOGAN |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [John A. Luke, Jr.] ------------------------------ JOHN A. LUKE, JR. |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [John C. Malone] ------------------------------ JOHN C. MALONE |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [Donald L. Miller] ------------------------------ DONALD L. MILLER |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [Catherine A. Rein] ------------------------------ CATHERINE A. REIN |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [William C. Richardson] ------------------------------ WILLIAM C. RICHARDSON |
POWER OF ATTORNEY
The Bank of New York Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her capacity as an officer or director of The Bank of New York Company, Inc., a New York corporation, (the "Company"), does hereby make, constitute and appoint Thomas A. Renyi, Gerald L. Hassell, Alan R. Griffith, Bruce W. Van Saun, Charles E. Rappold and Patricia A. Bicket and each of them individually as the true and lawful attorney of the undersigned with power to act with or without the others and with power of substitution, and in the undersigned's name, place and stead and in the undersigned's capacity as an officer or director or both to execute, deliver and file a registration statement on Form S-3 or such other appropriate form on the undersigned's behalf, in any and all capacities stated therein, and to file such registration statement or statements including if appropriate a second registration statement that will become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act") with the Securities and Exchange Commission ("SEC") under the Act, and to sign and file with the SEC any and all amendments to such registration statement or statements including post effective amendments and any other documents in support thereof or supplemental thereto, with respect to the registration of up to $1,600,000,000 of debt and equity securities of the Company, including, without limitation, debt securities; shares of preferred stock; shares of Class A preferred stock; depositary shares for such preferred stock or Class A preferred stock; an indeterminate number of shares of common stock, par value $7.50 per share (including preferred stock purchase rights appertaining thereto, the "Common Stock") or other capital securities of the Company as may be issued in exchange for, or upon conversion of, such preferred stock or Class A preferred stock; Common Stock; or one or more series of unsecured, subordinated debt securities and related guarantees and expense agreements to be sold to one or more trusts established by the Company, hereby granting to said attorneys and each of them full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever as any of said attorneys individually may deem necessary or advisable to fully carry out the intent of the foregoing as the undersigned might or could do in person. The undersigned hereby ratifies, confirms and approves the actions of said attorneys and each of them which they may do or cause to be done by virtue of these Presents.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 9/th/ day of May, 2000.
/s/ [Brian L. Roberts] ------------------------------ BRIAN L. ROBERTS |
EXHIBIT 25.1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
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130 Liberty Street, 31st Floor New York, New York 10006 (212) 250-2201
(Name, address and telephone number of agent for service)
THE BANK OF NEW YORK COMPANY, INC.
(Exact name of Registrant as specified in its charter)
New York 13-2614959
(State or other jurisdiction or organization) (IRS Employer Identification no.)
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One Wall Street New York, New York 10286 (212) 495-1784 (Address, including zip code and telephone number of principal executive offices)
Senior Debt Securities
(Title of Indenture Securities)
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to which it is subject.
Name Address ---- ------- Federal Reserve Bank (2nd District) New York, NY Federal Deposit Insurance Corporation Washington, D.C. New York State Banking Department Albany, NY |
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 6, 1998, Certificate of Amendment
of the Organization Certificate of Bankers Trust
Company dated September 25, 1998, and Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated December 16, 1998, copies attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers -Incorporated herein by reference to
Exhibit 2 filed with Form T- 1 Statement, Registration
No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended
on June 22, 1999. Copy attached.
-2-
|
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. -Incorporated herein by reference to
Exhibit 4 filed with Form T- 1 Statement, Registration
No. 22- 18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of December 31, 2000. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bankers Trust Company, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 22nd day of May, 2001.
BANKERS TRUST COMPANY
/s/ Tracy A. Salzmann
---------------------
By: Tracy A. Salzmann
Associate
bb
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State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law," dated September 16, 1998, providing for an increase in authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New York,
/s/ Manuel Kursky
---------------------------------
Deputy Superintendent of Banks
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RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
Under Section 8007 Of the Banking Law
Bankers Trust Company 130 Liberty Street New York, N.Y. 10006
Counterpart Filed in the Office of the Superintendent of Banks, State of New York, August 31, 1998
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and an Assistant Secretary and a Vice President and an Assistant Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by the Superintendent of Banks of the State of New York on the March 5, 1903.
3. The text of the organization certificate, as amended heretofore, is hereby restated without further amendment or change to read as herein set forth in full, to wit:
"Certificate of Organization of Bankers Trust Company
Know All Men By These Presents That we, the undersigned, James A. Blair, James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A. Barton Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H. Porter, John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C. Young, all being persons of full age and citizens of the United States, and a majority of us being residents of the State of New York, desiring to form a corporation to be known as a Trust Company, do hereby associate ourselves together for that purpose under and pursuant to the laws of the State of New York, and for such purpose we do hereby, under our respective hands and seals, execute and duly acknowledge this Organization Certificate in duplicate, and hereby specifically state as follows, to wit:
I. The name by which the said corporation shall be known is Bankers Trust Company.
II. The place where its business is to be transacted is the City of New York, in the State of New York.
III. Capital Stock: The amount of capital stock which the corporation is hereafter to have is Three Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.
(a) Common Stock
1. Dividends: Subject to all of the rights of the Series Preferred Stock, dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the corporation legally available for the payment of dividends.
2. Voting Rights: Except as otherwise expressly provided with respect to the Series Preferred Stock or with respect to any series of the Series Preferred Stock, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, each holder of the Common Stock being entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, and after the holders of the Series Preferred Stock of each series shall have been paid in full the amounts to which they respectively shall be entitled, or a sum sufficient for the payment in full set aside, the remaining net assets of the corporation shall be distributed pro rata to the holders of the Common Stock in accordance with their respective rights and interests, to the exclusion of the holders of the Series Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation shall be entitled, as such, as a matter of right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from time to time by the Board of Directors as herein provided in one or more series. The designations, relative rights, preferences and limitations of the Series Preferred Stock, and particularly of the shares of each series thereof, may, to the extent permitted by law, be similar to or may differ from those of any other series. The Board of Directors of the corporation is hereby expressly granted authority, subject to the provisions of this Article III, to issue from time to time Series Preferred Stock in one or more series and to fix from time to time before issuance thereof, by filing a certificate pursuant to the Banking Law, the number of shares in each such series of such class and all designations, relative rights (including the right, to the extent permitted by law, to convert into shares of any class or into shares of any series of any class), preferences and limitations of the shares in each such series, including, buy without limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which number may at any time, or from time to time, be increased or decreased by the Board of Directors, notwithstanding that shares of the series may be outstanding at the time of such increase or decrease, unless the Board of Directors shall have otherwise provided in creating such series) and the distinctive designation thereof;
(ii) The dividend rate on the shares of such series, whether or not dividends on the shares of such series shall be cumulative, and the date or dates, if any, from which dividends thereon shall be cumulative;
(iii) Whether or not the share of such series shall be redeemable, and, if redeemable, the date or dates upon or after which they shall be redeemable, the amount or amounts per share (which shall be, in the case of each share, not less than its preference upon involuntary liquidation, plus an amount equal to all dividends thereon accrued and unpaid, whether or not earned or declared) payable
thereon in the case of the redemption thereof, which amount may vary at different redemption dates or otherwise as permitted by law;
(iv) The right, if any, of holders of shares of such series to convert the same into, or exchange the same for, Common Stock or other stock as permitted by law, and the terms and conditions of such conversion or exchange, as well as provisions for adjustment of the conversion rate in such events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such series upon the voluntary and involuntary liquidation, dissolution or winding up of the corporation;
(vi) Whether the holders of shares of such series shall have voting power, full or limited, in addition to the voting powers provided by law and, in case additional voting powers are accorded, to fix the extent thereof; and
(vii) Generally to fix the other rights and privileges and any qualifications, limitations or restrictions of such rights and privileges of such series, provided, however, that no such rights, privileges, qualifications, limitations or restrictions shall be in conflict with the organization certificate of the corporation or with the resolution or resolutions adopted by the Board of Directors providing for the issue of any series of which there are shares outstanding.
All shares of Series Preferred Stock of the same series shall be identical in all respects, except that shares of any one series issued at different times may differ as to dates, if any, from which dividends thereon may accumulate. All shares of Series Preferred Stock of all series shall be of equal rank and shall be identical in all respects except that to the extent not otherwise limited in this Article III any series may differ from any other series with respect to any one or more of the designations, relative rights, preferences and limitations described or referred to in subparagraphs (I) to (vii) inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock of each series shall be declared and paid or set apart for payment before any dividends shall be declared and paid or set apart for payment on the Common Stock with respect to the same quarterly dividend period. Dividends on any shares of Series Preferred Stock shall be cumulative only if and to the extent set forth in a certificate filed pursuant to law. After dividends on all shares of Series Preferred Stock (including cumulative dividends if and to the extend any such shares shall be entitled thereto) shall have been declared and paid or set apart for payment with respect to any quarterly dividend period, then and not otherwise so long as any shares of Series Preferred Stock shall remain outstanding, dividends may be declared and paid or set apart for payment with respect to the same quarterly dividend period on the Common Stock out the assets or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal rank, preference and priority as to dividends irrespective of whether or not the rates of dividends to which the same shall be entitled shall be the same and when the stated dividends are not paid in full, the shares of all series of the Series Preferred Stock shall share ratably in the payment thereof in accordance with the sums which would by payable on such shares if all dividends were paid in full, provided, however, that nay two or more series of the Series Preferred Stock may differ from each other as to the existence and extent of the right to cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in the certificate filed pursuant to law with respect to any series of the Series Preferred Stock, or as otherwise provided by law, the Series Preferred Stock shall not have any right to vote for the election of directors or for any other purpose and the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes.
4. Liquidation: In the event of any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, each series of Series Preferred Stock shall have preference and priority over the Common Stock for payment of the amount to which each outstanding series of Series Preferred Stock shall be entitled in accordance with the provisions thereof and each holder of Series Preferred Stock shall be entitled to be paid in full such amount, or have a sum sufficient for the payment in full set aside, before any payments shall be made to the holders of the Common Stock. If, upon liquidation, dissolution or winding up of the corporation, the assets of the corporation or proceeds thereof, distributable among the holders of the shares of all series of the Series Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid, then such assets, or the proceeds thereof, shall be distributed among such holders ratably in accordance with the respective amounts which would be payable if all amounts payable thereon were paid in full. After the payment to the holders of Series Preferred Stock of all such amounts to which they are entitled, as above provided, the remaining assets and funds of the corporation shall be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of any series
shall be made redeemable as provided in clause (iii) of paragraph 1 of section
(b) of this Article III, the corporation, at the option of the Board of
Directors, may redeem at any time or times, and from time to time, all or any
part of any one or more series of Series Preferred Stock outstanding by paying
for each share the then applicable redemption price fixed by the Board of
Directors as provided herein, plus an amount equal to accrued and unpaid
dividends to the date fixed for redemption, upon such notice and terms as may be
specifically provided in the certificate filed pursuant to law with respect to
the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the corporation shall be entitled, as such, as a matter or right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred Stock, Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series established hereby shall be "Floating Rate Non-Cumulative Preferred Stock, Series A" (hereinafter called "Series A Preferred Stock").
2. Number: The number of shares of Series A Preferred Stock shall initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased or otherwise acquired by the corporation shall be cancelled and shall revert to authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred Stock shall be entitled to receive non-cumulative cash dividends when, as and if declared by the Board of Directors of the corporation, out of funds legally available therefor, from the date of original issuance of such shares (the "Issue Date") and such dividends will be payable on March 28, June 28, September 28 and December 28 of each year (:Dividend Payment Date") commencing September 28, 1990, at a rate per annum as determined in paragraph 3(b) below. The period beginning on the Issue Date and ending on the day preceding the firs Dividend Payment Date and each successive period beginning on a Dividend Payment Date and ending on the date preceding the next succeeding Dividend Payment Date is herein called a "Dividend Period". If any Dividend payment Date shall be, in The City of New York, a Sunday or a legal holiday or a day on which banking institutions are authorized by law to close, then payment will be postponed to the next succeeding business day with the same force and effect as if made on the Dividend Payment Date, and no interest shall accrue for such Dividend Period after such Dividend Payment Date.
(b) Dividend Rate. The dividend rare from time to time payable in respect of Series A Preferred Stock (the "Dividend Rate") shall be determined on the basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined on the basis of the offered rates for deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date, as such rates appear on the Reuters Screen LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in respect of such Dividend Determination Dates will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such offered rates. If fewer than those offered rates appear, LIBOR in respect of such Dividend Determination Date will be determined as described in paragraph (ii) below.
(ii) On any Dividend Determination Date on which fewer than those offered rates for the applicable maturity appear on the Reuters Screen LIBO Page as specified in paragraph (I) above, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars having a maturity of three months commending on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time are offered by three major banks in the London interbank market selected by the corporation at approximately 11:00 A.M., London time, on such Dividend Determination Date to prime banks in the London market. The corporation will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one- hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such quotations. If fewer than two quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of the rates quoted by three major banks in New York City selected by the corporation at approximately 11:00 A.M., New York City time, on such Dividend Determination Date for loans in U.S. dollars to leading European banks having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid by the corporation are not quoting as aforementioned in this sentence, then, with respect to such Dividend Period, LIBOR for the preceding Dividend Period will be continued as LIBOR for such Dividend Period.
(ii) The Dividend Rate for any Dividend Period shall be equal to the lower of 18% of 50 basis points above LIBOR for such Dividend Period as LIBOR is determined by sections (I) or (ii) above.
As used above, the term "Dividend Determination Date" shall mean, with resect to any Dividend Period, the second London Business Day prior to the commencement of such Dividend Period; and the term "London Business Day" shall mean any day that is not a Saturday or Sunday and that, in New York City, is not a day on which banking institutions generally are authorized or required by law or executive order to close and that is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock shall have the voting power and rights set forth in this paragraph 4 and shall have no other voting power or rights except as otherwise may from time to time be required by law.
So long as any shares of Series A Preferred Stock remain outstanding, the corporation shall not, without the affirmative vote or consent of the holders of at least a majority of the votes of the Series Preferred Stock entitled to vote outstanding at the time, given in person or by proxy, either in writing or by resolution adopted at a meeting at which the holders of Series A Preferred Stock (alone or together with the holders of one or more other series of Series Preferred Stock at the time outstanding and entitled to vote) vote separately as a class, alter
the provisions of the Series Preferred Stock so as to materially adversely affect its rights; provided, however, that in the event any such materially adverse alteration affects the rights of only the Series A Preferred Stock, then the alteration may be effected with the vote or consent of at least a majority of the votes of the Series A Preferred Stock; provided, further, that an increase in the amount of the authorized Series Preferred Stock and/or the creation and/or issuance of other series of Series Preferred Stock in accordance with the organization certificate shall not be, nor be deemed to be, materially adverse alterations. In connection with the exercise of the voting rights contained in the preceding sentence, holders of all series of Series Preferred Stock which are granted such voting rights (of which the Series A Preferred Stock is the initial series) shall vote as a class (except as specifically provided otherwise) and each holder of Series A Preferred Stock shall have one vote for each share of stock held and each other series shall have such number of votes, if any, for each share of stock held as may be granted to them.
The foregoing voting provisions will not apply if, in connection with the matters specified, provision is made for the redemption or retirement of all outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this Article III, upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, the holders of the Series A Preferred Stock shall have preference and priority over the Common Stock for payment out of the assets of the corporation or proceeds thereof, whether from capital or surplus, of $1,000,000 per share (the "liquidation value") together with the amount of all dividends accrued and unpaid thereon, and after such payment the holders of Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this Article III, Series A Preferred Stock may be redeemed, at the option of the corporation in whole or part, at any time or from time to time at a redemption price of $1,000,000 per share, in each case plus accrued and unpaid dividends to the date of redemption.
At the option of the corporation, shares of Series A Preferred Stock redeemed or otherwise acquired may be restored to the status of authorized but unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such redemption to the holders of the Series A Preferred Stock to be redeemed in the following manner: a notice specifying the shares to be redeemed and the time and place or redemption (and, if less than the total outstanding shares are to be redeemed, specifying the certificate numbers and number of shares to be redeemed) shall be mailed by first class mail, addressed to the holders of record of the Series A Preferred Stock to be redeemed at their respective addressees as the same shall appear upon the books of the corporation, not more than sixty (60) days and not less than thirty (30) days previous to the date fixed for redemption. In the event such notice is not given to any shareholder such failure to give notice shall not affect the notice given to other shareholders. If less than the whole amount of outstanding Series A Preferred Stock is to be redeemed, the shares to be redeemed shall be selected by lot or pro rata in any manner determined by resolution of the Board of Directors to b fair and proper. From and after the date fixed in any such notice as the date of redemption (unless default shall be made by the corporation in providing moneys at the time and place of redemption for the payment of the redemption price) all dividends upon the Series A Preferred Stock so called for redemption shall cease to accrue, and all rights of the holders of said Series A Preferred Stock as stockholders in the corporation, except the right to receive the redemption price (without interest) upon surrender of the certificate representing the Series A Preferred Stock so called for redemption, duly endorsed for transfer, if required, shall cease and terminate. The corporation's obligation to provide moneys in accordance with the preceding sentence shall be deemed fulfilled if, on or before the redemption date, the corporation shall deposit with a bank or trust company (which may e an affiliate of the corporation) having an office in the Borough of Manhattan, City of New York, having a capital and surplus of at least $5,000,000 funds necessary for such redemption, in trust with irrevocable instructions that such funds be applied to the redemption of the shares of Series A Preferred Stock so called for redemption. Any interest accrued on such funds shall be paid to the corporation from time to time. Any funds so deposited and unclaimed
at the end of two (2) years from such redemption date shall be released or repaid to the corporation, after which the holders of such shares of Series A Preferred Stock so called for redemption shall look only to the corporation for payment of the redemption price.
IV. The name, residence and post office address of each member of the corporation are as follows:
Name Residence Post Office Address
----
James A. Blair 9 West 50/th/ Street, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
James G. Cannon 72 East 54/th/ Street, 14 Nassau Street,
Manhattan New York City Manhattan, New York City
E. C. Converse 3 East 78/th/ Street, 139 Broadway,
Manhattan, New York City Manhattan, New York City
Henry P. Davison Englewood, 2 Wall Street,
New Jersey Manhattan, New York City
Granville W. Garth 160 West 57/th/ Street, 33 Wall Street
Manhattan, New York City Manhattan, New York City
A. Barton Hepburn 205 West 57/th/ Street 83 Cedar Street
Manhattan, New York City Manhattan, New York City
William Logan Montclair, 13 Nassau Street
New Jersey Manhattan, New York City
George W. Perkins Riverdale, 23 Wall Street,
New York Manhattan, New York City
William H. Porter 56 East 67/th/ Street 270 Broadway,
Manhattan, New York City Manhattan, New York City
John F. Thompson Newark, 143 Liberty Street,
New Jersey Manhattan, New York City
Albert H. Wiggin 42 West 49/th/ Street, 214 Broadway,
Manhattan, New York City Manhattan, New York City
Samuel Woolverton Mount Vernon, 34 Wall Street,
New York Manhattan, New York City
Edward F.C. Young 85 Glenwood Avenue, 1 Exchange Place,
Jersey City, New Jersey Jersey City, New Jersey
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V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and each for himself does, hereby declare that he will accept the responsibilities and faithfully discharge the duties of a director therein, if elected to act as such, when authorized accordance with the provisions of the Banking Law of the State of New York.
VII. The number of directors of the corporation shall not be less that 10 nor more than 25."
4. The foregoing restatement of the organization certificate was authorized by the Board of Directors of the corporation at a meeting held on July 21, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th day of August, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th day of August, 1998.
/s/ James T. Byrne, Jr.
------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
/s/ Lea Lahtinen
------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
/s/ Lea Lahtinen
-----------------------------------
Lea Lahtinen
|
State of New York )
) ss:
County of New York )
|
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
-----------------------------------
Lea Lahtinen
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Sworn to before me this
6th day of August, 1998.
/s/ Sandra L. West
------------------------------------
Notary Public
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SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8007 of the Banking Law," dated August 6, 1998, providing for the restatement of the Organization Certificate and all amendments into a single certificate.
Witness, my hand and official seal of the Banking Department at the City of New York,
this 31st day of August in the Year of our Lord one thousand nine hundred and ninety- eight.
/s/ Manuel Kursky
-----------------------------------
Deputy Superintendent of Banks
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CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.
4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have is Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 25th day of September, 1998
/s/ James T. Byrne, Jr.
-------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
/s/ Lea Lahtinen
--------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
|
State of New York )
) ss:
County of New York )
|
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
------------------------------------
Lea Lahtinen
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Sworn to before me this 25/th/ day
of September, 1998
/s/ Sandra L. West
------------------------------------
Notary Public
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SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law," dated December 16, 1998, providing for an increase in authorized capital stock from $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,627,308,670 consisting of 212,730,867 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New York,
this 18th day of December in the Year of our Lord one thousand nine hundred and ninety-eight.
/s/ P. Vincent Conlon
-------------------------------
Deputy Superintendent of Banks
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CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.
4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Six Hundred Twenty-Seven Million, Three Hundred Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided into Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight Hundred Sixty- Seven (212,730,867) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 16th day of December, 1998
/s/ James T. Byrne, Jr.
----------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
/s/ Lea Lahtinen
----------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
|
State of New York )
) ss:
County of New York )
|
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
--------------------------------------
Lea Lahtinen
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Sworn to before me this 16/th/ day
of December, 1998
/s/ Sandra L. West
------------------------------------
Notary Public
|
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
BY-LAWS
JUNE 22, 1999
Bankers Trust Corporation
(Incorporated under the New York Business Corporation Law)
BANKERS TRUST CORPORATION
BY-LAWS
ARTICLE I
SHAREHOLDERS
SECTION 1.01 Annual Meetings. The annual meetings of shareholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Tuesday in April of each year, if not a legal holiday, and if a legal holiday then on the next succeeding business day, at such hour as shall be designated by the Board of Directors. If no other hour shall be so designated such meeting shall be held at 3 P.M.
SECTION 1.02 Special Meetings. Special meetings of the shareholders, except those regulated otherwise by statute, may be called at any time by the Board of Directors, or by any person or committee expressly so authorized by the Board of Directors and by no other person or persons.
SECTION 1.03 Place of Meetings. Meetings of shareholders shall be held at such place within or without the State of New York as shall be determined from time to time by the Board of Directors or, in the case of special meetings, by such person or persons as may be authorized to call a meeting. The place in which each meeting is to be held shall be specified in the notice of such meeting.
SECTION 1.04 Notice of Meetings. A copy of the written notice of the place, date and hour of each meeting of shareholders shall be given personally or by mail, not less than ten nor more than fifty days before the date of the meeting, to each shareholder entitled to vote at such meeting. Notice of a special meeting shall indicate that it is being issued by or at the direction of the person or persons calling the meeting and shall also state the purpose or purposes for which the meeting is called. Notice of any meeting at which is proposed to take action which would entitle shareholders to receive payment for their shares pursuant to statutory provisions must include a statement of that purpose and to that effect. If mailed, such notices of the annual and each special meeting are given when deposited in the United States mail, postage prepaid, directed to the shareholder at his address as it appears in the record of shareholders unless he shall have filed with the Secretary of the corporation a written request that notices intended for him shall be mailed to some other address, in which case it shall be directed to him at such other address.
SECTION 1.05 Record Date. For the purpose of determining the shareholders entitled to notice of or to vote any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the Board of Directors may fix, in advance, a date as the record date for any such determination of shareholders. Such date shall not be more than fifty nor less than ten days before the date of such meeting, nor more than fifty days prior to any other action.
SECTION 1.06 Quorum. The presence, in person or by proxy, of the holders of a majority of the shares entitled to vote thereat shall constitute a quorum at a meeting of shareholders for the transaction of business, except as otherwise provided by statute, by the Certificate of Incorporation or by the By-Laws. The shareholders present in person or by proxy and entitled to vote at any meeting, despite the absence of a quorum, shall have power to adjourn the meeting from time to time, to a designated time and place, without notice other than by announcement at the meeting, and at any adjourned meeting any business may be transacted that might have been transacted on the original date of the meeting. However, if after the adjournment the Board of Directors fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record on the new record date entitled to notice.
SECTION 1.07 Notice of Shareholder Business at Annual Meeting. At an annual meeting of shareholders, only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the Board of Directors or (b) by any shareholder of the corporation who complies with the notice procedures set forth in this Section 1.07. For business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the Secretary of the corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than thirty days nor more than fifty days prior to the meeting; provided, however, that in the event that less than forty days' notice or prior public disclosure of the date of the meeting is given or made to shareholders, notice by the shareholder to be timely must be received not later than the close of business on the tenth day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made. A shareholder's notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting (a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (b) the name and address, as they appear on the corporation's books, of the shareholder proposing such business, (c) the class and number of shares of the corporation which are beneficially owned by the shareholder and (d) any material interest of the shareholder in such business. Notwithstanding anything in these By-Laws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this Section 1.07 and Section 2.03. The Chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Section 1.07 and Section 2.03, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01 Number and Qualifications. The business of the corporation shall be managed by its Board of Directors. The number of directors constituting the entire Board of Directors shall be not less than seven nor more than fifteen, as shall be fixed from time to time by vote of a majority of the entire Board of Directors. Each director shall be at least 21 years of age. Directors need not be shareholders. No Officer-Director who shall have attained age 65, or earlier relinquishes his responsibilities and title, shall be eligible to serve as a director.
SECTION 2.02 Election. At each annual meeting of shareholders, directors shall be elected by a plurality of the votes to hold office until the next annual meeting. Subject to the provisions of the statute, of the Certificate of Incorporation and of the By-Laws, each director shall hold office until the expiration of the term for which elected, and until his successor has been elected and qualified.
SECTION 2.03 Nomination and Notification of Nomination. Subject to the rights of holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, nominations for the election of directors may be made by the Board of Directors or to any committee appointed by the Board of Directors or by any shareholder entitled to vote in the election of directors generally. However, any shareholder entitled to vote in the election of directors generally may nominate one or more persons for election as directors at a meeting only if written notice of such shareholder's intent to make such nomination or nominations has been given, either by personal delivery or by United States mail, postage prepaid, to the Secretary of the corporation not later than (i) with respect to an election to be held at an annual meeting of shareholders ninety days in advance of such meeting, and (ii) with respect to an election to be held at a special meeting of shareholders for the election of directors, the close of business on the seventh day following the date on which notice of such meeting is first given to shareholders. Each such notice shall set forth: (a) the name and address of the shareholder who intends to make the nomination and of the person or persons to be nominated; (b) a representation that the shareholder is a holder of record of stock of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (c) a description of all arrangements or understandings between the shareholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the shareholder; (d) such other information regarding each nominee proposed by such shareholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (e) the consent of each nominee to serve as a director of the corporation if so elected. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the Secretary of the corporation that information required to be set forth in a shareholder's notice of nomination which pertains to the nominee. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth in the By-Laws. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by these By-Laws, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
SECTION 2.04 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such places and times as may be fixed from time to time by resolution of the Board and a regular meeting for the purpose of organization and transaction of other business shall be held each year after the adjournment of the annual meeting of shareholders.
SECTION 2.05 Special Meetings. The Chairman of the Board, the Chief Executive Officer, the President, the Senior Vice Chairman or any Vice Chairman may, and at the request of three directors shall, call a special meeting of the Board of Directors, two days' notice of which shall be given in person or by mail, telegraph, radio, telephone or cable. Notice of a special meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him.
SECTION 2.06 Place of Meeting. The directors may hold their meetings, have one or more offices, and keep the books of the corporation (except as may be provided by law) at any place, either within or without the State of New York, as they may from time to time determine.
SECTION 2.07 Quorum and Vote. At all meetings of the Board of Directors the presence of one-third of the entire Board, but not less than two directors, shall constitute a quorum for the transaction of business. Any one or more members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board of Directors or a committee thereof by means of a conference telephone or similar communications equipment which allows all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at such a meeting. The vote of a majority of the directors present at the time of the vote, if a quorum is present at such time, shall be the act of the Board of Directors, except as may be otherwise provided by statute or the By-Laws.
SECTION 2.08 Vacancies. Newly created directorships resulting from increase in the number of directors and vacancies in the Board of Directors, whether caused by resignation, death, removal or otherwise, may be filled by vote of a majority of the directors then in office, although less than a quorum exists.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 3.01 Designation and Authority. The Board of Directors, by resolution adopted by a majority of the entire Board, may designate from among its members an Executive Committee and other committees, each consisting of three or more directors. Each such committee, to the extent provided in the resolution or the By-Laws, shall have all the authority of the Board, except that no such committee shall have authority as to:
(i) the submission to shareholders of any action as to which shareholders' authorization is required by law.
(ii) the filling of vacancies in the Board of Directors or any committee.
(iii) the fixing of compensation of directors for serving on the Board or on any committee.
(iv) the amendment or appeal of the By-Laws, or the adoption of new By- Laws.
(v) the amendment or repeal of any resolution of the Board which by its terms shall not be so amendable or repealable.
The Board may designate one or more directors as alternate members of any such committee, who may replace any absent member or members at any meeting of such committee. Each such committee shall serve at the pleasure of the Board of Directors.
SECTION 3.02 Procedure. Except as may be otherwise provided by statute, by the By-Laws or by resolution of the Board of Directors, each committee may make rules for the call and conduct of its meetings. Each committee shall keep a record of its acts and proceedings and shall report the same from time to time to the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 4.01 Titles and General. The Board of Directors shall elect from among their number a Chairman of the Board and a Chief Executive Officer, and may also elect a President, a Senior Vice Chairman, one or more Vice Chairmen, one or more Executive Vice Presidents, one or more Senior
Vice Presidents, one or more Principals, one or more Vice Presidents, a Secretary, a Controller, a Treasurer, a General Counsel, a General Auditor, and a General Credit Auditor, who need not be directors. The officers of the corporation may also include such other officers or assistant officers as shall from time to time be elected or appointed by the Board. The Chairman of the Board or the Chief Executive Officer or, in their absence, the President, the Senior Vice Chairman or any Vice Chairman, may from time to time appoint assistant officers. All officers elected or appointed by the Board of Directors shall hold their respective offices during the pleasure of the Board of Directors, and all assistant officers shall hold office at the pleasure of the Board or the Chairman of the Board or the Chief Executive Officer or, in their absence, the President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors may require any and all officers and employees to give security for the faithful performance of their duties.
SECTION 4.02 Chairman of the Board. The Chairman of the Board shall preside at all meetings of the shareholders and of the Board of Directors. Subject to the Board of Directors, he shall exercise all the powers and perform all the duties usual to such office and shall have such other powers as may be prescribed by the Board of Directors or the Executive Committee or vested in him by the By- Laws.
SECTION 4.03 Chief Executive Officer. The Board of Directors shall designate the Chief Executive Officer of the corporation, which person may also hold the additional title of Chairman of the Board, President, Senior Vice Chairman or Vice Chairman. Subject to the Board of Directors, he shall exercise all the powers and perform all the duties usual to such office and shall have such other powers as may be prescribed by the Board of Directors or the Executive Committee or vested in him by the By-Laws.
SECTION 4.04 Chairman of the Board, President, Senior Vice Chairman, Vice Chairmen, Executive Vice Presidents, Senior Vice Presidents, Principals and Vice Presidents. The Chairman of the Board or, in his absence or incapacity the President or, in his absence or incapacity, the Senior Vice Chairman, the Vice Chairmen, the Executive Vice Presidents, or in their absence, the Senior Vice Presidents, in the order established by the Board of Directors shall, in the absence or incapacity of the Chief Executive Officer perform the duties of the Chief Executive Officer. The President, the Senior Vice Chairman, the Vice Chairmen, the Executive Vice Presidents, the Senior Vice Presidents, the Principals, and the Vice Presidents shall also perform such other duties and have such other powers as may be prescribed or assigned to them, respectively, from time to time by the Board of Directors, the Executive Committee, the Chief Executive Officer, or the By-Laws.
SECTION 4.05 Controller. The Controller shall perform all the duties customary to that office and except as may be otherwise provided by the Board of Directors shall have the general supervision of the books of account of the corporation and shall also perform such other duties and have such powers as may be prescribed or assigned to him from time to time by the Board of Directors, the Executive Committee, the Chief Executive Officer, or the By-Laws.
SECTION 4.06 Secretary. The Secretary shall keep the minutes of the meetings of the Board of Directors and of the shareholders and shall have the custody of the seal of the corporation. He shall perform all other duties usual to that office, and shall also perform such other duties and have such powers as may be prescribed or assigned to him from time to time by the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer, or the By-Laws.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 5.01 The corporation shall, to the fullest extent permitted by Section 721 of the New York Business Corporation Law, indemnify any person who is or was made, or threatened to be made, a party to an action or proceeding, whether civil or criminal, whether involving any actual or alleged breach of duty, neglect or error, any accountability, or any actual or alleged misstatement, misleading statement or other act or omission and whether brought or threatened in any court or administrative or legislative body or agency, including an action by or in the right of the corporation to procure a judgment in its favor and an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the corporation is serving or served in any capacity at the request of the corporation by reason of the fact that he, his testator or intestate, is or was a director or officer of the corporation, or is serving or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement, and costs, charges and expenses, including attorneys' fees, or any appeal therein; provided, however, that no indemnification shall be provided to any such person if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.
SECTION 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
SECTION 5.03 The corporation shall, from time to time, reimburse or advance to any person referred to in Section 5.01 the funds necessary for payment of expenses, including attorneys' fees, incurred in connection with any action or proceeding referred to in Section 5.01, upon receipt of a written undertaking by or on behalf of such person to repay such amount(s) if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.
SECTION 5.04 Any director or officer of the corporation serving (i) another corporation, of which a majority of the shares entitled to vote in the election of its directors is held by the corporation, or (ii) any employee benefit plan of the corporation or any corporation referred to in clause (i), in any capacity shall be deemed to be doing so at the request of the corporation. In all other cases, the provisions of this Article V will apply (i) only if the person serving another corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise so served at the specific request of the corporation, evidenced by a written communication signed by the Chairman of the Board, the Chief Executive Officer, the President, the Senior Vice Chairman or any Vice Chairman, and (ii) only if and to the extent that, after making such efforts as the Chairman of the Board, the Chief Executive Officer, or the President shall deem adequate in the circumstances, such person shall be unable to obtain indemnification from such other enterprise or its insurer.
SECTION 5.05 Any person entitled to be indemnified or to the reimbursement or advancement of expenses as a matter of right pursuant to this Article V may elect to have the right to indemnification (or advancement of expenses) interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time indemnification is sought.
SECTION 5.06 The right to be indemnified or to the reimbursement or advancement of expenses pursuant to this Article V (i) is a contract right pursuant to which the person entitled thereto may bring suit as if the provisions hereof were set forth in a separate written contract between the corporation and the director or officer, (ii) is intended to be retroactive and shall be available with respect to events occurring prior to the adoption hereof, and (iii) shall continue to exist after the rescission or restrictive modification hereof with respect to events occurring prior thereto.
SECTION 5.07 If a request to be indemnified or for the reimbursement or advancement of expenses pursuant hereto is not paid in full by the corporation within thirty days after a written claim has been received by the corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled also to be paid the expenses of prosecuting such claim. Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such action that indemnification of or reimbursement or advancement of expenses to the claimant is proper in the circumstances, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its shareholders) that the claimant is not entitled to indemnification or to the reimbursement or advancement of expenses, shall be a defense to the action or create a presumption that the claimant is not so entitled.
SECTION 5.08 A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Section 5.01 shall be entitled to indemnification only as provided in Sections 5.01 and 5.03, notwithstanding any provision of the New York Business Corporation Law to the contrary.
ARTICLE VI
SEAL
SECTION 6.01 Corporate Seal. The corporate seal shall contain the name of the corporation and the year and state of its incorporation. The seal may be altered from time to time at the discretion of the Board of Directors.
ARTICLE VII
SHARE CERTIFICATES
SECTION 7.01 Form. The certificates for shares of the corporation shall be in such form as shall be approved by the Board of Directors and shall be signed by the Chairman of the Board, the Chief Executive Officer, the President, the Senior Vice Chairman or any Vice Chairman and the Secretary or an Assistant Secretary, and shall be sealed with the seal of the corporation or a facsimile thereof. The signatures of the officers upon the certificate may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the corporation itself or its employees.
ARTICLE VIII
CHECKS
SECTION 8.01 Signatures. All checks, drafts and other orders for the payment of money shall be signed by such officer or officers or agent or agents as the Board of Directors may designate from time to time.
ARTICLE IX
AMENDMENT
SECTION 9.01 Amendment of By-Laws. The By-Laws may be amended, repealed or added to by vote of the holders of the shares at the time entitled to vote in the election of any directors. The Board of Directors may also amend, repeal or add to the By-Laws, but any By-Laws adopted by the Board of Directors may be amended or repealed by the shareholders entitled to vote thereon as provided herein. If any By-Law regulating an impending election of directors is adopted, amended or repealed by the Board, there shall be set forth in the notice of the next meeting of shareholders for the election of directors the By-Laws so adopted, amended or repealed, together with concise statement of the changes made.
ARTICLE X
SECTION 10.01 Construction. The masculine gender, when appearing in these By-Laws, shall be deemed to include the feminine gender.
I, Tracy A. Salzmann, Associate of Bankers Trust Company, New York, New York, hereby certify that the foregoing is a complete, true and correct copy of the By-Laws of Bankers Trust Company, and that the same are in full force and effect at this date.
/s/ Tracy A. Salzmann
---------------------
Tracy A. Salzmann
Associate
DATED: My 22, 2001
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Legal Title of Bank: Bankers Trust Company Call Date: 12/31/00 State#: 36-4840 FFIEC 031 Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-1 City, State ZIP: New York, NY 10006 Transit#: 21001003 |
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
------------------
| C400 |
-----------------------------
Dollar Amounts in Thousands | RCFD |
------------------------------------------------------------------------------------------------------------------------------
ASSETS........................................................................ | |
1. Cash and balances due from depository institutions (from Schedule RC-A): | |
a. Noninterest-bearing balances and currency and coin (1)................ | 0081 1,419,000 | 1.a.
b. Interest-bearing balances (2)......................................... | 0071 1,423,000 | 1.b.
2. Securities: | |
a. Held-to-maturity securities (from Schedule RC-B, column A)............ | 1754 0 | 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).......... | 1773 354,000 | 2.b.
3. Federal funds sold and securities purchased under agreements to resell.... | 1350 8,525,000 | 3.
4. Loans and lease financing receivables: | |
a. Loans and leases, net of unearned income (from Schedule RC-C)......... | | 4.a.
b. LESS: Allowance for loan and lease losses...........................RCFD 2122 22,038,000 | | 4.b.
c. LESS: Allocated transfer risk reserve...............................RCFD 3123 458,000 | | 4.c.
d. Loans and leases, net of unearned income,.............................RCFD 3128 0 | |
allowance, and reserve (item 4.a minus 4.b and 4.c)................... | 2125 15,892,000 | 4.d.
5. Trading Assets (from schedule RC-D)....................................... | 3545 12,779,000 | 5.
6. Premises and fixed assets (including capitalized leases).................. | 2145 600,000 | 6.
7. Other real estate owned (from Schedule RC-M).............................. | 2150 103,000 | 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)...................................................... | 2130 51,000 | 8.
9. Customers' liability to this bank on acceptances outstanding.............. | 2155 254,000 | 9.
10. Intangible assets (from Schedule RC-M).................................... | 2143 70,000 | 10.
11. Other assets (from Schedule RC-F)......................................... | 2160 2,854,000 | 11.
12. Total assets (sum of items 1 through 11).................................. | 2170 44,324,000 | 12.
------------------------
|
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/00 State#: 364840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-2
City, State Zip: New York, NY 10006 Transit#: 21001003
12
Schedule RC--Continued
Dollar Amounts in Thousands
------------------------------------------------------------------------------------------------------------------------------------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and
C from Schedule RC-E, part I) | RCON 2200 11,415,000 |13.a.
(1) Noninterest-bearing(1) ........................ | RCON 6631 3,195,000 |13.a.(1)
(2) Interest-bearing .............................. | RCON 6636 8,220,000 |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E part II) | RCFN 2200 7,744,000 |13.b.
(1) Noninterest-bearing ........................... | RCFN 6631 1,044,000 |13.b.(1)
(2) Interest-bearing............................... | RCFN 6636 6,700,000 |13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase | RCFD 2800 8,319,000 |14.
15. a. Demand notes issued to the U.S. Treasury ........ | RCON 2840 439,000 |15.a.
b. Trading liabilities (from Schedule RC-D)......... | RCFD 3548 1,814,000 |15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases):
a. With a remaining maturity of one year or less ... | RCFD 2332 2,590,000 |16.a.
b. With a remaining maturity of more than one
year through three years......................... | A547 842,000 |16.b.
c. With a remaining maturity of more than
three years...................................... | A548 558,000 |16.c
17. Not Applicable. | |17.
18. Bank's liability on acceptances executed and
outstanding .......................................... | RCFD 2920 254,000 |18.
19. Subordinated notes and debentures (2)................. | RCFD 3200 284,000 |19.
20. Other liabilities (from Schedule RC-G) ............... | RCFD 2930 3,467,000 |20.
21. Total liabilities (sum of items 13 through 20) ....... | RCFD 2948 37,726,000 |21.
22. Not Applicable | |
| |22.
EQUITY CAPITAL | |
23. Perpetual preferred stock and related surplus ........ | RCFD 3638 1,500,000 |23.
24. Common stock ......................................... | RCFD 3230 2,127,000 |24.
25. Surplus (exclude all surplus related to
preferred stock) ..................................... | RCFD 3839 584,000 |25.
26. a. Undivided profits and capital reserves .......... | RCFD 3632 2,468,000 |26.a.
b. Net unrealized holding gains (losses)
on available-for-sale securities ................ | RCFD 8434 5,000 |26.b.
c. Accumulated net gains (losses) on
cash flow hedges................................. | RCFD 4336 0 |26c.
27. Cumulative foreign currency translation adjustments... | RCFD 3284 (86,000) |27.
28. Total equity capital (sum of items 23 through 27) .... | RCFD 3210 6,598,000 |28.
29. Total liabilities and equity capital (sum of
items 21 and 28)...................................... | RCFD 3300 44,324,000 |29
| |
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number auditors as of any date Number
------------------------------------------
during 1999 ................................. RCFD 6724 N/A | M.1
------------------------------------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
|
(2) Includes limited-life preferred stock and related surplus.
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
(Exact name of trustee as specified in its charter)
29-2933369
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
One Oxford Centre, Suite 1100
301 Grant Street, Pittsburgh, PA 15219
(Address of principal executive offices) (Zip Code)
William H. McDavid
The Chase Manhattan Bank
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
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The Bank of New York Company, Inc.
(Exact name of obligor as specified in its charter)
New York 13-2614959
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One Wall Street
New York, New York 10286
(Address of principal executive offices) (Zip Code)
________________________________________________
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GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
No responses are included for Items 3-15 of this Form T-1 because the Obligor is not in default as provided under Item 13.
List below all exhibits filed as a part of this Statement of Eligibility.
1. Exhibit T1A(a) A copy of the Articles of Association of the Trustee as now in effect.
2. Exhibit T1A(b) A copy of the Certificate of Authority of the Trustee (previously known as New Trust Company, National Association,) to commence business. Also included in Exhibit TIA (b) are letters dated November 24, 1997 from the Comptroller of the Currency authorizing the exercise of fiduciary powers by the Trustee and acknowledging the name change of the Trustee.
3. Exhibit T1A(c) The Authorization of the Trustee to exercise corporate trust powers is contained in Exhibit T1A(b).
4. Exhibit T1B A copy of the By-Laws of the Trustee as now in effect. 5. Exhibit T1C Not applicable 6. Exhibit T1D The Trustee's consent required by Section 321(b) of the Act. 7. Exhibit T1E A copy of the latest report of condition of the Trustee, |
published pursuant to law or the requirements of its supervising or examining authority.
8. Exhibit T1F Not applicable
9. Exhibit T1G Not applicable
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, Chase Manhattan Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America , has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Pittsburgh and Pennsylvania, on the 22nd day of May, 2001.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By /s/ Elaine D. Renn --------------------------------- Elaine D. Renn Vice President |
Exhibit T1A(a)
[LOGO] CHASE
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
CHARTER NO. 23548
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to perform any lawful activities of a national bank, the undersigned do enter into the following Articles of Association:
FIRST. The title of this Association shall be Chase Manhattan Trust Company, National Association (the "Association").
SECOND. The main office of the Association shall be in the City of Pittsburgh, County of Allegheny, Commonwealth of Pennsylvania. The business of the Association shall be limited to the fiduciary powers and the support of activities incidental to the exercise of those powers. The Association will obtain the prior written approval of the Office of the Comptroller of the Currency before amending these Articles of Association to expand the scope of its activities and services.
THIRD. The board of directors of this Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director, during the full term of his directorship, shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market or equity value of not less than $1,000. Any vacancy in the board of directors may be filled by action of the shareholders or a majority of the remaining directors.
Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualifies or until there is a decrease in the number of directors and his or her position is eliminated.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefore in the by- laws, or if that day falls on a legal holiday in the state in which the Association is located, on the next following banking day. If no election is held on the day fixed or in event of a legal holiday, on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. Advance notice of the meeting may be duly waived by the sole shareholder in accordance with 12 C.F.R. 7.2001.
A director may resign at any time by delivering written notice to the board of directors, its Chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause.
FIFTH. The authorized amount of capital stock of this Association shall be five million dollars ($5,000,000), divided into fifty thousand (50,000) shares of common stock of the par value of one hundred dollars ($ 100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right to subscription to any thereof other than such, if any, as the board of directors, in its discretion may from time to time determine and at such price as the board of directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders.
SIXTH. The board of directors may appoint one of its members President of this Association, and one of its members Chairperson of the board or two of its members as Co-Chairpersons of the board, and shall have the power to appoint one or more Vice Presidents, a Secretary who shall keep minutes of the directors' and shareholders' meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the by-laws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with applicable
law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the power
of shareholders to increase or decrease the capital of the Association in
accordance with law.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial by-laws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal by-laws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a board of directors to
perform.
SEVENTH. The board of directors shall have the power to change the location of the main office to any other location permitted under applicable law, without the approval of the shareholders, and shall have the power to establish or change the location of any branch or branches of the Association to any other location permitted under applicable law, without the approval of the shareholders subject to approval by the Office of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount. The Association's board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
Exhibit T1A (b)
Comptroller of the Currency
TREASURY DEPARTMENT [PICTURE] OF THE UNITED STATES
Washington, D.C.
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Whereas, satisfactory evidence has been presented to the Comptroller of the Currency that New Trust Company National Association located in Pittsburgh State of Pennsylvania has complied with all provisions of the statues of the United States required to be complied with before being authorized to commence the business of banking as a National Banking Association;
Now, therefore, I hereby certify that the above named association is authorized to commence the business of banking as a National Banking Association.
In Testimony whereof, witness my
[SEAL] signature and seal of office this
Charter No. 24/th/ days of November 1997
23548 /s/ [ILLEGIBLE]^^
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November District
11 14 Avenue of the America's Suite 3900
New York, New York 10036
November 24, 1997
Joseph R. Bielawa
Vice President and Assistant General Counsel
The Chase Manhattan Bank
270 Park Avenue, 39/th/ Floor
New York, New York 10017
Re: Change in Corporate Title
New Trust Company, National Association (Bank)
Pittsburgh, Pennsylvania
Dear Mr. Bielawa:
The Office of the Comptroller of the Currency (OCC) has received your submission, concerning the change and amendment to Article First of the above- referenced Bank's Articles of Association. The OCC has amended its records to reflect that effective November 24, 1997, the corporate title of New Trust Company, National Association, Charter Number 23548, was changed to "Chase Manhattan Trust Company, National Association."
You are reminded that the OCC does not approve national bank name changes nor dies it maintain official titles or the retention of alternate titles. The use of other titles or the retention of the rights o any previously title is the responsibility of the Bank's board of directors. Legal counsel should be consulted to determine whether or not the new title, or any previously used title, could be challenged by competing institutions under the provisions of federal state law.
A copy of the amended Article as accepted for filing is enclosed for the Bank's records.
Very truly yours
/s/ Linda Leickel Linda Leickel Senior Licensing Analyst Charter No.:23548 Control No.: 97 NE 04 010 w/97 NE 01 022 |
PAGE>
Comptroller of the Currency Exhibit T1A (b) Administrator of National Banks -------------------------------------------------------------------------------- November District Licensing 1114 Avenue of the America's Suite 3900 Telephone (212) 790-4055 New York, New York 10036 Fax: (212) 790-4098 November 24, 1997 Mr. Daryl J. Zupan President and CEO New Trust Company, National Association c/o Mellon Bank, N.A., Corporate Trust Two Mellon Bank Center, Suite 325 Pittsburgh, Pennsylvania 15259 |
Re: Charter for a National Trust Bank, New Trust Company, National Association.
Pittsburgh, Pennsylvania
ACN 97 NE 01 0022
Dear Mr. Zupan:
The Comptroller of the Currency (OCC) has found that you have met all conditions imposed by the OCC and completed all steps necessary to commence the business of banking. Your charter certificate is enclosed. You are authorized to commence business on November 24, 1997.
This letter also constitutes OCC authorization to exercise fiduciary powers.
You are reminded that several of the standard conditions contained in the preliminary approval letter dated October 23, 1997 will continue to apply once the bank opens and by opening, you agree to subject your association to these conditions of operations. Some of the conditions bear reiteration here:
1. Regardless of the association's FDIC insurance status, the association is subject to the Change in Bank Control act (12 U.S.C. 1817(j)) by virtue of its national bank charter. Please refer to item 4 in the list of standard conditions sent with the preliminary approval letter.
2. The board of directors is responsible for regular review and update of policies and procedures and for assuring ongoing compliance with them. This includes maintaining an internal control system that ensures compliance with the currency reporting and record keeping requirements of the Bank Secrecy Act (BSA). The board is expected to train its personnel in BSA procedures and designate one person or a group to monitor day-to-day compliance.
Mr. Daryl J. Zupan
Page two
3. The bank will not engage in full commercial powers authorized to national banks without the OCC's prior approval
Following the commencement of operations, bank management is urged to become familiar with the requirements of the Securities Exchange Act of 1934 and Part 11 of the Comptroller's regulations relative to the registration of the bank's equity securities and related periodic reports. These requirements will be applicable to your bank when the number of shareholders of record is maintained at 500 or more. Such registration may be subsequently terminated pursuant to the Act, only when the number of shareholders of record is reduced to fewer than 300.
Should you have any questions regarding the supervision of your bank, please contact the portfolio manager who will be responsible for OCC's ongoing supervisory effort at your institution. You will be notified of the name and number of the appropriate individual in the near future.
Sincerely,
Micheal G. Tiscia
Licensing Manager
Enclosure
cc: Official File
Field File
Exhibit T1B
[LOGO] CHASE
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
BY-LAWS
Article I. Meetings of Shareholders
Section 1.1. Annual Meeting. The regular annual meeting of the shareholders to elect directors and transact whatever other business may properly come before the meeting, shall be held at the main office of the Association, or such other place as the board may designate, and at such time in each year as may be designated by the board of directors. Unless otherwise provided by law, notice of the meeting may be waived by the Association's sole shareholder in accordance with 12 C.F.R. (S) 7.2001. If, for any cause, an election of directors is not made on that date, or in the event of a legal holiday, on the next following banking day, an election may be held on any subsequent day within 60 days of the date fixed, to be designated by the board, or, if the directors fail to fix the date, by shareholders representing two thirds of the shares issued and outstanding.
Section 1.2. Special Meetings. Except as otherwise specifically provided by statute, special meetings of the shareholders may be called for any purpose at any time by a majority of the board of directors or by any one or more shareholders owning, in the aggregate, not less than twenty-five percent of the stock of the Association or by the Chairperson of the board of directors or the President. Unless otherwise provided by law, advance notice of a special meeting may be waived by the Association's Sole Shareholder in accordance with 12 C.F.R. (S) 7.2001.
Section 1.3. Nominations of Directors. Nominations for election to the board of
directors may be made by the board of directors or by any stockholder of any
outstanding class of capital stock of the Association entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the Association, shall be made in writing and shall be
delivered or mailed to the President of the Association and to the Comptroller
of the Currency, Washington, D.C., not less than 14 days nor more than 50 days
prior to any meeting of shareholders called for the election of directors,
provided, however, that if less than 21 days' notice of the meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Association and to the Comptroller of the Currency not later than the close
of business on the seventh (7th) day following the day on which the notice of
meeting was mailed. Such notification shall contain the following information to
the extent known to the notifying shareholder.
(1) The name and address of each proposed nominee.
(2) The principal occupation of each proposed nominee.
(3) The total number of shares of capital stock of the Association
that will be voted for each proposed nominee.
(4) The name and residence address of the notifying shareholder.
(5) The number of shares of capital stock of the Association owned
by the notifying shareholder.
Nominations not made in accordance herewith may, in his/her discretion, be
disregarded by the Chairperson of the meeting, and upon his/her instructions,
the vote tellers may disregard all votes cast for each such nominee.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this Association shall act as proxy. Proxies shall be valid only for one meeting to be specified therein, and any adjournments of such meeting. Proxies shall be dated and filed with the records of the meeting. Proxies with rubber stamped facsimile signatures may be used and unexecuted proxies may be counted upon receipt of a confirming telegram from the shareholder. Proxies meeting above requirements submitted at any time during a meeting shall be accepted.
Section 1.5 Quorum. A majority of the outstanding capital stock, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant
to Section 10.2, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held, as adjourned, without further notice. A
majority of the votes cast shall decide every question or matter submitted to
the shareholders at any meeting, unless otherwise provided by law or by the
Articles of Association, or by the shareholders or directors pursuant to Section
10.2. Any action required or permitted to be taken by the shareholders may be
taken without a meeting by unanimous written consent of the shareholders to a
resolution authorizing the action. The resolution and the written consent shall
be filed with the minutes of the proceedings of the shareholders.
Article II. Directors
Section 2.1. Board of Directors. The board of directors ("board") shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the board.
Section 2.3. Organization Meeting. The Secretary shall notify the directors- elect of their election and of the time at which they are required to meet at the main office of the Association to organize the new board and elect and appoint officers of the Association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors present may adjourn the meeting, from time to time, until a quorum is obtained.
Section 2.4. Regular Meetings. The time and location of regular meetings of the board shall be set by the board. Such meetings may be held without notice. Any business may be transacted at any regular meeting. The board may adopt any procedures for the notice and conduct of any meetings as are not prohibited by law.
Section 2.5. Special Meetings. Special meetings of the board may be called at the request of the Chairperson or Co-Chairperson of the board, the President, or three or more directors. Each member of the board shall be given notice stating the time and place, by telegram, telephone, letter or in person, of each such special meeting at least one day prior to such meeting. Any business may be transacted at any special meeting.
Section 2.6. Action by the Board. Except as otherwise provided by law, corporate action to be taken by the board shall mean such action at a meeting of the board. Any action required or permitted to be taken by the board or any committee of the board may be taken without a meeting if all members of the board or the committee consent in writing to a resolution authorizing the action. The resolution and the written consents thereto shall be filed with the minutes of the proceedings of the board or committee. Any one or more members of the board or any committee may participate in a meeting of the board or committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at such meeting.
Section 2.7. Waiver of Notice. Notice of a special meeting need not be given to any director who submits a signed waiver of notice, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him or her.
Section 2.8. Quorum and Manner of Acting. Except as otherwise required by law, the Articles of Association or these by-laws, a majority of the directors shall constitute a quorum for the transaction of any business at any meeting of the board and the act of a majority of the directors present and voting at a meeting at which a quorum is present shall be the act of the board. In the absence of a quorum, a majority of the directors present may adjourn any meeting, from time to time, until a quorum is present and no notice of any adjourned meeting need be given. At any such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called.
Section 2.9. Vacancies. In the event a majority of the full board increases the number of directors to a number which exceeds the number of directors last elected by shareholders, as permitted by Section 2.2, directors may be appointed to fill the resulting vacancies by vote of such majority of the full board. In the event of a vacancy in the board for any other cause, a director may be appointed to fill such vacancy by vote of a majority of the remaining directors then in office.
Section 2.10. Removal of Directors. The vacancy created by the removal of a
director pursuant to this Section may be filled by the board in accordance with
Section 2.9 of these by-laws or by the shareholders.
Article III. Committees
Section 3.1. Executive Committee. There may be an executive committee consisting of the Chairperson or Co-Chairperson of the board and not less than two other directors appointed by the board annually or more often. Subject to the limitations in Section 3.4(g) of these by-laws, the executive committee shall have the maximum authority permitted by law.
Section 3.2. Audit Committee. There may be an audit committee composed of not less than two directors, exclusive of any active officers, appointed by the board annually or more often, whose duty it shall be to make an examination at least once during each calendar year and within fifteen months of the last examination into the affairs of the Association, or cause continuous suitable examinations to be made, by auditors responsible only to the board, and to report the results of any such examinations in writing to the board from time to time. Such examinations shall include audits of the fiduciary business of the Association as may be required by law or regulation.
Section 3.3. Other Committees. The board may appoint, from time to time, other committees of one or more persons, for such purposes and with such powers as the board may determine.
Section 3.4. General. (a) Each committee shall elect a Chairperson from among
the members thereof and shall also designate a Secretary of the committee, who
shall keep a record of its proceedings.
(b) Vacancies occurring from time to time in the membership of any
committee shall be filled by the board for the unexpired term of the member
whose departure causes such vacancy. The board may designate one or more
alternate members of any committee, who may replace any absent member or members
at any meeting of such committee.
(c) Each committee shall adopt its own rules of procedure and shall
meet at such stated times as it may, by resolution, appoint. It shall also meet
whenever called together by its Chairperson or the Chairperson of the board.
(d) No notice of regular meetings of any committee need be given.
Notice of every special meeting shall be given either by mailing such notice to
each member of such committee at his or her address, as the same appears in the
records of the Association, at least two days before the day of such meeting, or
by notifying each member on or before the day of such meeting by telephone or by
personal notice, or by leaving a written notice at his or her residence or place
of business on or before the day of such meeting. Waiver of notice in writing
of any meeting, whether prior or subsequent to such meeting, or attendance at
such meeting, shall be equivalent to notice of such meeting. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at any
special meeting.
(e) All committees shall, with respect to all matters, be subject to
the authority and direction of the board and shall report to it when required.
(f) Unless otherwise required by law, the Articles of Association or
these by-laws, a quorum at any meeting of any committee shall be one-third of
the full membership and present shall be the act of the committee.
(g) No committee shall have authority to take any action which is
expressly required by law or regulation to be taken at a meeting of the board or
by a specified proportion of directors.
Article IV. Officers and Employees
Section 4.1. Chairperson of the Board. The board shall appoint one of its members to be the Chairperson of the board, or two persons to serve as Co- Chairperson of the board to serve at its pleasure. Such person shall preside at all meetings of the board. The Chairperson or Co-Chairpersons of the board shall supervise the carrying out of the policies adopted or approved by the board; shall have general executive powers, as well as the specific powers conferred by these by-laws; and shall also have and may exercise such further powers and duties as from time to time may be conferred upon, or assigned by the board.
Section 4.2. President. The board may appoint one of its members to be the President of the Association. In the absence of the Chairperson or Co- Chairpersons, the President shall preside at any meeting of the board. The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation, or practice to the office of President, or imposed by these by-laws. The President shall also have and may exercise such further powers and duties as from time to time may be conferred, or assigned by the board.
Section 4.3. Vice President. The board may appoint one or more Vice Presidents. Each Vice President shall have such powers and duties as may be assigned by the board.
Section 4.4. Secretary. The board shall appoint a Secretary, Cashier, or other designated officer who shall be Secretary of the board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these by-laws; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation
or practice, to the office of Cashier, or imposed by these by-laws; and shall also perform such other duties as may be assigned from time to time, by the board.
Section 4.5. Other Officers. The board may appoint one or more Assistant Vice Presidents, one or more Trust Officers, one or more Assistant Secretaries, one or more Assistant Cashiers, one or more Managers and Assistant Managers of branches and such other officers and attorneys in fact as from time to time may appear to the board to be required or desirable to transact the business of the Association. Such officers shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon, or assigned to, them by the board, the Chairperson or Co-Chairpersons of the board, or the President. The board may authorize an officer to appoint one or more officers or assistant officers.
Section 4.6. Resignation. An officer may resign at any time by delivering notice to the Association. A resignation is effective when the notice is given unless the notice specifies a later effective date.
Article V. Fiduciary Activities
Section 5.1. Trust Committee. There shall be a Trust Committee of this Association composed of four or more members, who shall be capable and experienced officers or directors of the Association. The Committee is charged with the responsibility for the investment, retention, or disposition of assets held in accounts with respect to which the Association has investment authority; for the review of the assets of accounts for which the Association has investment authority promptly after the acceptance of such an account and at least once during every calendar year thereafter to determine the advisability of retaining or disposing of such assets; for the determination of the manner in which proxies received for accounts for which the Association has responsibility for the voting of proxies shall be voted; for the determination of all substantial questions involving discretionary authority of the Association of a non-investment nature, including, but not limited to, distribution of principal and/or income in respect of any account; for providing advice as to the investment, retention, or disposition of assets in investment advisory accounts maintained by the Association; for the making of such reports as this board shall require; and for such other responsibilities as may be assigned by this board. The Trust Committee, in discharging its aforementioned responsibilities, may authorize officers of the Association to exercise such powers and under such conditions as the Committee may from time to time prescribe.
Section 5.2. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and local law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under applicable law.
Section 5.3. Trust Audit Committee. The board shall appoint a committee of at least two directors, exclusive of any active officer of the association, which shall, at least once during each calendar year make suitable audits of the association's fiduciary activities or cause suitable audits to be made by auditors responsible only to the board, and at such time shall ascertain whether fiduciary powers have been administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles.
Section 5.4. Fiduciary Files. There shall be maintained by the association all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Article VI. Stock and Stock Certificates
Section 6.1. Transfers. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to his or her shares, succeed to all rights of the prior holder of such shares. The board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association with respect to stock transfers, voting at shareholder meetings, and related matters and to protect it against fraudulent transfers.
Section 6.2. Stock Certificates. Certificates of stock shall bear the signature of the Chairperson or Co-Chairpersons of the board or President (which may be engraved, printed or impressed), and shall be signed manually or by facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant Cashier, or any other officer appointed by the board for that purpose, to be known as an authorized officer, and the seal of the Association shall be engraved thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. In case any such officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such before such certificate is issued, it may be issued by the Association with the same effect as if such officer had not ceased to be such at the time of its issue. The corporate seal may be a facsimile, engraved or printed.
Article VII. Corporate Seal
Section 7.1. Corporate Seal. The Chairperson, the President, the Cashier, the Secretary or any Assistant Cashier or Assistant Secretary, or other officer thereunto designated by the board, shall have authority to affix the corporate seal to any document requiring such seal, and to attest the same. Such seal shall be substantially in the following form: A circle, with the words "Chase Manhattan Trust Company, National Association" within such circle.
Article VIII. Miscellaneous Provisions
Section 8.1. Fiscal Year. The fiscal year of the Association shall be the calendar year.
Section 8.2. Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted on behalf of the Association by the Chairperson or Co-Chairpersons of the board, or the President, or any Vice Chairperson, or any Managing Director, or any Vice President, or any Assistant Vice President, or the Chief Financial Officer, or the Controller, or the Secretary, or the Cashier, or, if in connection with exercise of fiduciary powers of the Association, by any of those officers or by any Trust Officer. Any such instruments may also be executed, acknowledged, verified, delivered or accepted on behalf of the Association in such other manner and by such other officers as the board may from time to time direct. The provisions of this Section 8.2 are supplementary to any other provision of these by-laws.
Section 8.3. Records. The Articles of Association, the by-laws and the proceedings of all meetings of the shareholders, the board, and standing committees of the board, shall be recorded in appropriate minute books provided for that purpose. The minutes of each meeting shall be signed by the Secretary, Cashier or other officer appointed to act as Secretary of the meeting.
Section 8.4. Corporate Governance Procedures. To the extent not inconsistent with applicable Federal banking law, bank safety and soundness or these by-laws, the corporate governance procedures found in the Delaware General Corporation Law shall be followed by the Association.
Article IX. Indemnification
Section 9.1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or was a director or an officer of the Association or is or was serving at the request of the Association as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Association to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Association to provide broader indemnification rights than such law permitted the Association to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section 9.3 of these by-laws with respect to proceedings to enforce rights to indemnification, the Association shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the board.
Section 9.2. Right to Advancement of Expenses. The right to indemnification
conferred in Section 9.1 of these by-laws shall include the right to be paid by
the Association the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Association of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 9.2 or otherwise. The rights to
indemnification and to the advancement of expenses conferred in Sections 9.1 and 9.2 of these by-laws shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnities heirs, executors and administrators.
Section 9.3. Right of Indemnitee to Bring Suit. If a claim under Section 9.1 or 9.2 of these by-laws is not paid in full by the Association within sixty (60) days after a written claim has been received by the Association except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Association to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Association to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (1) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (2) any suit brought by the Association to recover an advancement of expenses pursuant to the terms of an undertaking, the Association shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Association (including the board, the Association's independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Association (including the board, the Association's independent legal counsel, or its shareholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Association to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article IX or otherwise shall be on the Association.
Section 9.4. Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in this Article IX shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Association's Articles of Association, by-laws, agreement, vote of shareholders or disinterested directors or otherwise.
Section 9.5. Insurance. The Association may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Association or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Association would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
Section 9.6. Indemnification of Employees and Agents of the Association. The Association may, to the extent authorized from time to time by the board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Association to the fullest extent of the provisions of this Article IX with respect to the indemnification and advancement of expenses of directors and officers of the Association.
Article X. By-laws
Section 10.1. Inspection. A copy of the by-laws, with all amendments, shall at all times be kept in a convenient place at the main office of the Association, and shall be open for inspection to all shareholders during banking hours.
Section 10.2. Amendments. The by-laws may be amended, altered or repealed, at any regular meeting of the board by a vote of a majority of the total number of the directors except as provided below. The Association's shareholders may amend or repeal the by-laws even though the by-laws may be amended or repealed by its board.
EXHIBIT T1D
The undersigned, Chase Manhattan Trust Company, National Association, Pittsburgh, Pennsylvania pursuant to Section 321(b) of The Trust Indenture Act of 1939, hereby authorizes the Board of Governors of the Federal Reserve System, the Federal Reserve Banks, the Treasury Department, the Comptroller of the Currency and the Federal Deposit Insurance Corporation, under such conditions as they may prescribe, to make available to the Commission such reports, records or other information as they may have available with respect to the undersigned as a prospective trustee under an indenture to be qualified under the aforesaid Trustee Indenture Act of 1939 and to make through their examiners or other employees for the use of the Commission, examinations of the undersigned prospective Trustee.
The undersigned also, pursuant to Section 321(b) of said Trust Indenture Act of 1939, consents that reports of examination by the Federal, State, Territorial or District authorities may be furnished by such authorities to the Commission upon request therefor.
Dated this 11th day of December, 1998.
Chase Manhattan Trust Company,
National Association
By: /s/ Timothy J. Vara -------------------- Timothy J. Vara Vice President |
EXHIBIT T1E
Chase Manhattan Trust Company, National Association
Statement of Condition
March 31, 2001
($000)
------
Assets
Cash and Due From Banks $ 23,660
Securities Available for Sale 5,070
Premises and Equipment 2,864
Accounts Receivable 7,962
Intangible Assets 174,024
------------
Total Assets $213,580
============
Liabilities
Sundry Liabilities and Accrued Expenses $ 11,795
------------
Stockholder's Equity
Common Stock $ 5,000
Surplus 179,892
Retained Earnings 16,893
------------
Total Stockholder's Equity $201,785
------------
Total Liabilities and Stockholder's Equity $213,580
============
|
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
Bank One, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
1 Bank One Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
|
Bank One, National Association 1 Bank One Plaza, Suite IL1-0126 Chicago, Illinois 60670-0126 Attn: John R. Prendiville, Corporate Trust Services Division (312) 661-5223
(Name, address and telephone number of agent for service)
The Bank of New York Company, Inc.
(Exact name of obligor as specified in its charter)
New York 13-2614959 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) One Wall Street New York, New York 10286 (Address of principal executive offices) (Zip Code) |
Subordinated Debt Securities
(Title of Indenture Securities)
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
No such affiliation exists with the trustee.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 21st day of May, 2001.
Bank One, National Association, Trustee
By /s/ John R. Prendiville John R. Prendiville Vice President |
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 21, 2001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between The Bank of New York Company, Inc. and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
Bank One, National Association
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
--------
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).............. 0081 5,462,1701.a
b. Interest-bearing balances(2)....................................... 0071 5,170,2421.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A).......... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)....... 1773 12,523,350 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 16,069,589 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C)................................................................. 2122 55,190,023 4.a
b. LESS: Allowance for loan and lease losses.......................... 3123 1,218,9234.b
c. LESS: Allocated transfer risk reserve.............................. 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCF
----
reserve (item 4.a minus 4.b and 4.c)............................... 2125 53,971,100 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 2,521,374 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 567,098 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 963 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 409,736 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 340,763 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 202,851 10.
11. Other assets (from Schedule RC-F)..................................... 2160 3,989,302 11.
12. Total assets (sum of items 1 through 11).............................. 2170 101,228,538 12.
|
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1).................................. 2200 26,522,858 13.a
(1) Noninterest-bearing(1)................................... 6631 11,338,557 13.a1
(2) Interest-bearing........................................ 6636 15,184,301 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II)........................... ----
(1) Noninterest bearing...................................... 2200 36,247,795 13.b
(2) Interest-bearing......................................... 6631 778,075 13.b1
6636 35,469,720 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 2,276,371 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 310,767 15.a
b. Trading Liabilities(from Schedule RC-D)...................... RCFD 3548 2,104,757 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less................... 2332 18,245,377 16.a
b. With original maturity of more than one year................ A547 2,298,488 16.b
c. With original maturity of more than three years............. A548 1,845,898 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding......... 2920 340,763 18.
19. Subordinated notes and debentures............................... 3200 2,800,000 19.
20. Other liabilities (from Schedule RC-G).......................... 2930 2,505,175 20.
21. Total liabilities (sum of items 13 through 20).................. 2948 95,498,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................... 3838 0 23.
24. Common stock.................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)........ 3839 3,861,173 25.
26. a. Undivided profits and capital reserves....................... 3632 1,703,180 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................... 8434 ( 36,495) 26.b
c. Accumulated net gains (losses) on cash flow hedges........... 4336 0 26.c
27. Cumulative foreign currency translation adjustments............. 3284 1,573 27.
28. Total equity capital (sum of items 23 through 27)............... 3210 5,730,289 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)........................... 3300 101,228,538 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work ---------
performed for the bank by independent external auditors as of any N/A Number
date during 1996................................................. RCFD 6724 M.1.
---------
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
|
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
EXHIBIT 25.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
Bank One, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
1 Bank One Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
Bank One, National Association
1 Bank One Plaza, Suite IL1-0126
Chicago, Illinois 60670-0126
|
Attn: John R. Prendiville, Corporate Trust Services Division (312) 661-5223
(Name, address and telephone number of agent for service)
BNY Capital V
(Exact name of obligor as specified in its charter)
Delaware 13-7103738 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) c/o The Bank of New York Company, Inc. One Wall Street New York, New York 10286 (Address of principal executive offices) (Zip Code) |
Preferred Securities
(Title of Indenture Securities)
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
No such affiliation exists with the trustee.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 21st day of May, 2001.
Bank One, National Association, Trustee
By /s/ John R. Prendiville John R. Prendiville Vice President |
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 21, 2001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between BNY Capital V and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
Bank One, National Association
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
--------
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):.............................................................. RCFD
----
a. Noninterest-bearing balances and currency and coin(1)............ 0081 5,462,1701.a
b. Interest-bearing balances(2)..................................... 0071 5,170,2421.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)........ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)..... 1773 12,523,350 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 16,069,589 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C)............................................................... 2122 55,190,023 4.a
b. LESS: Allowance for loan and lease losses........................ 3123 1,218,9234.b
c. LESS: Allocated transfer risk reserve............................ 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCF
----
reserve (item 4.a minus 4.b and 4.c)............................. 2125 53,971,100 4.d
5. Trading assets (from Schedule RD-D)................................. 3545 2,521,374 5.
6. Premises and fixed assets (including capitalized leases)............ 2145 567,098 6.
7. Other real estate owned (from Schedule RC-M)........................ 2150 963 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)...................................... 2130 409,736 8.
9. Customers' liability to this bank on acceptances outstanding........ 2155 340,763 9.
10. Intangible assets (from Schedule RC-M).............................. 2143 202,851 10.
11. Other assets (from Schedule RC-F)................................... 2160 3,989,302 11.
12. Total assets (sum of items 1 through 11)............................ 2170 101,228,538 12.
|
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)..................................... 2200 26,522,858 13.a
(1) Noninterest-bearing(1)...................................... 6631 11,338,557 13.a1
(2) Interest-bearing........................................... 6636 15,184,301 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II).............................. 2200 36,247,795 13.b
(1) Noninterest bearing......................................... 6631 778,075 13.b1
(2) Interest-bearing............................................ 6636 35,469,720 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 2,276,371 14
15. a. Demand notes issued to the U.S. Treasury........................ RCON 2840 310,767 15.a
b. Trading Liabilities(from Schedule RC-D)......................... RCFD 3548 2,104,757 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less........................ 2332 18,245,377 16.a
b. With original maturity of more than one year..................... A547 2,298,488 16.b
c. With original maturity of more than three years.................. A548 1,845,898 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding............ 2920 340,763 18.
19. Subordinated notes and debentures.................................. 3200 2,800,000 19.
20. Other liabilities (from Schedule RC-G)............................. 2930 2,505,175 20.
21. Total liabilities (sum of items 13 through 20)..................... 2948 95,498,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus...................... 3838 0 23.
24. Common stock....................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)........... 3839 3,861,173 25.
26. a. Undivided profits and capital reserves.......................... 3632 1,703,180 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities...................................................... 8434 ( 36,495) 26.b
c. Accumulated net gains (losses) on cash flow hedges............. 4336 0 26.c
27. Cumulative foreign currency translation adjustments................ 3284 1,573 27.
28. Total equity capital (sum of items 23 through 27).................. 3210 5,730,289 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).............................. 3300 101,228,538 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work ---------
performed for the bank by independent external auditors as of any N/A Number
date during 1996................................................. RCFD 6724 M.1.
---------
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
|
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
EXHIBIT 25.5
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
Bank One, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
1 Bank One Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
Bank One, National Association
1 Bank One Plaza, Suite IL1-0126
Chicago, Illinois 60670-0126
|
Attn: John R. Prendiville, Corporate Trust Services Division (312) 661-5223
(Name, address and telephone number of agent for service)
BNY Capital VI
(Exact name of obligor as specified in its charter)
Delaware 13-7177235 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) c/o The Bank of New York Company, Inc. One Wall Street New York, New York 10286 (Address of principal executive offices) (Zip Code) |
Preferred Securities
(Title of Indenture Securities)
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
No such affiliation exists with the trustee.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 21st day of May, 2001.
Bank One, National Association, Trustee
By /s/ John R. Prendiville John R. Prendiville Vice President |
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 21, 2001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between BNY Capital VI and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
Bank One, National Association
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
------
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).............................. 0081 5,462,170 1.a
b. Interest-bearing balances(2)....................................................... 0071 5,170,242 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A).......................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)....................... 1773 12,523,350 2.b
3. Federal funds sold and securities purchased under agreements to resell................ 1350 16,069,589 3.
4. Loans and lease financing receivables:
RCFD
----
a. Loans and leases, net of unearned income (from Schedule RC-C)...................... 2122 55,190,023 4.a
b. LESS: Allowance for loan and lease losses.......................................... 3123 1,218,923 4.b
c. LESS: Allocated transfer risk reserve.............................................. 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a RCF
---
minus 4.b and 4.c)................................................................ 2125 53,971,100 4.d
5. Trading assets (from Schedule RD-D)................................................... 3545 2,521,374 5.
6. Premises and fixed assets (including capitalized leases).............................. 2145 567,098 6.
7. Other real estate owned (from Schedule RC-M).......................................... 2150 963 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule
RC-M)................................................................................. 2130 409,736 8.
9. Customers' liability to this bank on acceptances outstanding.......................... 2155 340,763 9.
10. Intangible assets (from Schedule RC-M)................................................ 2143 202,851 10.
11. Other assets (from Schedule RC-F)..................................................... 2160 3,989,302 11.
12. Total assets (sum of items 1 through 11).............................................. 2170 101,228,538 12.
|
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC
031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)...................................................... 2200 26,522,858 13.a
(1) Noninterest-bearing(1)....................................................... 6631 11,338,557 13.a1
(2) Interest-bearing............................................................. 6636 15,184,301 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)............................................... 2200 36,247,795 13.b
(1) Noninterest bearing.......................................................... 6631 778,075 13.b1
(2) Interest-bearing............................................................. 6636 35,469,720 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:................................................................... RCFD 2800 2,276,371 14
15. a. Demand notes issued to the U.S. Treasury...................................... RCON 2840 310,767 15.a
b. Trading Liabilities(from Schedule RC-D)....................................... RCFD 3548 2,104,757 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.................................... 2332 18,245,377 16.a
b. With original maturity of more than one year................................. A547 2,298,488 16.b
c. With original maturity of more than three years............................... A548 1,845,898 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.......................... 2920 340,763 18.
19. Subordinated notes and debentures................................................ 3200 2,800,000 19.
20. Other liabilities (from Schedule RC-G)........................................... 2930 2,505,175 20.
21. Total liabilities (sum of items 13 through 20)................................... 2948 95,498,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................................... 3838 0 23.
24. Common stock..................................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......................... 3839 3,861,173 25.
26. a. Undivided profits and capital reserves........................................... 3632 1,703,180 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities....................................................................... 8434 (36,495) 26.b
c. Accumulated net gains (losses) on cash flow hedges............................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments.............................. 3284 1,573 27.
28. Total equity capital (sum of items 23 through 27)................................ 3210 5,730,289 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................................ 3300 101,228,538 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external Number
auditors as of any date during 1996.............................. RCFD 6724 M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in accordance with 8 = No external audit work
generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
|
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
EXHIBIT 25.6
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
Bank One, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
1 Bank One Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
|
Bank One, National Association 1 Bank One Plaza, Suite IL1-0126 Chicago, Illinois 60670-0126 Attn: John R. Prendiville, Corporate Trust Services Division (312) 661-5223
(Name, address and telephone number of agent for service)
BNY Capital VII
(Exact name of obligor as specified in its charter)
Delaware 13-7177236 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) c/o The Bank of New York Company, Inc. One Wall Street New York, New York 10286 (Address of principal executive offices) (Zip Code) |
Preferred Securities
(Title of Indenture Securities)
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
No such affiliation exists with the trustee.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 21st day of May, 2001.
Bank One, National Association, Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 21, 2001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between BNY Capital VII and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
Bank One, National Association
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)........................ 0081 5,462,170 1.a
b. Interest-bearing balances(2)................................................. 0071 5,170,242 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A).................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)................. 1773 12,523,350 2.b
3. Federal funds sold and securities purchased under agreements to resell 1350 16,069,589 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C)........................................................................... 2122 55,190,023 4.a
b. LESS: Allowance for loan and lease losses.................................... 3123 1,218,923 4.b
c. LESS: Allocated transfer risk reserve........................................ 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCF
---
reserve (item 4.a minus 4.b and 4.c)......................................... 2125 53,971,100 4.d
5. Trading assets (from Schedule RD-D)............................................. 3545 2,521,374 5.
6. Premises and fixed assets (including capitalized leases)........................ 2145 567,098 6.
7. Other real estate owned (from Schedule RC-M).................................... 2150 963 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................................. 2130 409,736 8.
9. Customers' liability to this bank on acceptances outstanding.................... 2155 340,763 9.
10. Intangible assets (from Schedule RC-M).......................................... 2143 202,851 10.
11. Other assets (from Schedule RC-F)............................................... 2160 3,989,302 11.
12. Total assets (sum of items 1 through 11)........................................ 2170 101,228,538 12.
|
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)........................................ 2200 26,522,858 13.a
(1) Noninterest-bearing(1)......................................... 6631 11,338,557 13.a1
(2) Interest-bearing............................................... 6636 15,184,301 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)................................. 2200 36,247,795 13.b
(1) Noninterest bearing............................................ 6631 778,075 13.b1
(2) Interest-bearing............................................... 6636 35,469,720 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 2,276,371 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 310,767 15.a
b. Trading Liabilities(from Schedule RC-D)............................ RCFD 3548 2,104,757 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less......................... 2332 18,245,377 16.a
b. With original maturity of more than one year...................... A547 2,298,488 16.b
c. With original maturity of more than three years.................... A548 1,845,898 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding............... 2920 340,763 18.
19. Subordinated notes and debentures..................................... 3200 2,800,000 19.
20. Other liabilities (from Schedule RC-G)................................ 2930 2,505,175 20.
21. Total liabilities (sum of items 13 through 20)........................ 2948 95,498,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus......................... 3838 0 23.
24. Common stock.......................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).............. 3839 3,861,173 25.
26. a. Undivided profits and capital reserves............................. 3632 1,703,180 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities......................................................... 8434 (36,495) 26.b
c. Accumulated net gains (losses) on cash flow hedges................. 4336 0 26.c
27. Cumulative foreign currency translation adjustments................... 3284 1,573 27.
28. Total equity capital (sum of items 23 through 27)..................... 3210 5,730,289 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)................................. 3300 101,228,538 29.
|
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right
the number of the statement below
that best describes the most
comprehensive level of auditing
work performed for the bank by -----------
independent external N/A Number
auditors as of any date during 1996....................................... RCFD 6724 M.1.
-----------
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
|
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
Trust and Loan Companies Act
POWER OF ATTORNEY FOR CHIEF AGENT
Name of the company giving the power of attorney: BNY Trust Company of Canada Compagnie Trust BNY Canada
Jurisdiction and instrument of incorporation of the company: Canada Articles of Incorporation pursuant to the Canadian Business Corporations Act and continued by Letters Patent pursuant to the Trust and Loan Companies Act (Canada)
Name of person receiving the power of attorney:
("the chief agent")
Address in Nova Scotia of the chief agent (full business address including street number and municipality).
("the chief agency")
The company appoints
as its chief agent and attorney under subsection (9) of Section 212 of the Trust and Loan Companies Act (the "Act).
The company authorizes the chief agent to receive service of process on its behalf in all civil, criminal or administrative proceedings against the company in Nova Scotia and to receive from the Superintendent of Trust and Loans Companies any notices or documents given to the company under the Act and regulations. Receipt by the chief agent personally or at the chief agency of services of process and of notices and documents is binding on the company.
(Insert additional powers being given to the chief agent, if any,)
Dated the day of , A.D.,
__________________________________
Name of the Company
Witnesses: By:
________________________ __________________________________
President or Managing Director
________________________ __________________________________
Secretary
|
EXHIBIT 25.7
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
Bank One, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
1 Bank One Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
|
Bank One, National Association 1 Bank One Plaza, Suite IL1-0126 Chicago, Illinois 60670-0126 Attn: John R. Prendiville, Corporate Trust Services Division (312) 661-5223
(Name, address and telephone number of agent for service)
BNY Capital VIII
(Exact name of obligor as specified in its charter)
Delaware 13-7177237 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) c/o The Bank of New York Company, Inc. One Wall Street New York, New York 10286 (Address of principal executive offices) (Zip Code) |
Preferred Securities
(Title of Indenture Securities)
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
No such affiliation exists with the trustee.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 21st day of May, 2001.
Bank One, National Association, Trustee
By /s/ John R. Prendiville John R. Prendiville Vice President |
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 21, 2001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between BNY Capital VIII and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
Bank One, National Association
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
---
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from ScheduleRC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)............ 0081 5,462,170 1.a
b. Interest-bearing balances(2)..................................... 0071 5,170,242 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)........ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)..... 1773 12,523,350 2.b
3. Federal funds sold and securities purchased under agreements to
resell.............................................................. 1350 16,069,589 3.
4. Loans and lease financing receivables:
RCFD
a. Loans and leases, net of unearned income (from ----
Schedule RC-C)................................................... 2122 55,190,023 4.a
b. LESS: Allowance for loan and lease losses........................ 3123 1,218,923 4.b
c. LESS: Allocated transfer risk reserve............................ 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCF
----
reserve (item 4.a minus 4.b and 4.c)............................. 2125 53,971,100 4.d
5. Trading assets (from Schedule RD-D)................................. 3545 2,521,374 5.
6. Premises and fixed assets (including capitalized leases)............ 2145 567,098 6.
7. Other real estate owned (from Schedule RC-M)........................ 2150 963 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)...................................... 2130 409,736 8.
9. Customers' liability to this bank on acceptances outstanding......... 2155 340,763 9.
10. Intangible assets (from Schedule RC-M).............................. 2143 202,851 10.
11. Other assets (from Schedule RC-F)................................... 2160 3,989,302 11.
12. Total assets (sum of items 1 through 11)............................ 2170 101,228,538 12.
|
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1).............................................. 2200 26,522,858 13.a
(1) Noninterest-bearing(1)............................................... 6631 11,338,557 13.a1
(2) Interest-bearing..................................................... 6636 15,184,301 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)....................................... 2200 36,247,795 13.b
(1) Noninterest bearing.................................................. 6631 778,075 13.b1
(2) Interest-bearing..................................................... 6636 35,469,720 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:................................................................ RCFD 2800 2,276,371 14
15. a. Demand notes issued to the U.S. Treasury................................... RCON 2840 310,767 15.a
b. Trading Liabilities(from Schedule RC-D).................................... RCFD 3548 2,104,757 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less................................. 2332 18,245,377 16.a
b. With original maturity of more than one year.............................. A547 2,298,488 16.b
c. With original maturity of more than three years........................... A548 1,845,898 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding....................... 2920 340,763 18.
19. Subordinated notes and debentures............................................. 3200 2,800,000 19.
20. Other liabilities (from Schedule RC-G)........................................ 2930 2,505,175 20.
21. Total liabilities (sum of items 13 through 20)................................ 2948 95,498,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................. 3838 0 23.
24. Common stock.................................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)...................... 3839 3,861,173 25.
26. a. Undivided profits and capital reserves................................... 3632 1,703,180 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities............................................................... 8434 (36,495) 26.b
c. Accumulated net gains (losses) on cash flow hedges....................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments........................... 3284 1,573 27.
28. Total equity capital (sum of items 23 through 27)............................. 3210 5,730,289 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................................... 3300 101,228,538 29.
|
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most
comprehensive level of auditing work performed for ------ Number
the bank by independent external auditors as of any date N/A
during 1996................. ........................... RCFD 6724 M.1
------
|
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company financial statements
by conducted in accordance with generally accepted auditing standards by a
certified public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
Trust and Loan Companies Act
POWER OF ATTORNEY FOR CHIEF AGENT
Name of the company giving the power of attorney: BNY Trust Company of Canada Compagnie Trust BNY Canada
Jurisdiction and instrument of incorporation of the company: Canada Articles of Incorporation pursuant to the Canadian Business Corporations Act and continued by Letters Patent pursuant to the Trust and Loan Companies Act (Canada)
Name of person receiving the power of attorney:
("the chief agency")
Address in Nova Scotia of the chief agent (full business address including street number and municipality).
("the chief agency")
The company appoints
as its chief agent and attorney under subsection (9) of Section 212 of the Trust and Loan Companies Act (the "Act").
The company authorizes the chief agent to receive service of process on its behalf in all civil, criminal or administrative proceedings against the company in Nova Scotia and to receive from the Superintendent of Trust and Loans Companies any notices or documents given to the company under the Act and regulations. Receipt by the chief agent personally or at the chief agency of services of process and of notices and documents is binding on the company.
(Insert additional powers being given to the chief agent, if any,)
Dated the day of , A.D.,
__________________________________
Name of the Company
Witnesses: By:
___________________________ __________________________________
President or Managing Director
___________________________ ______________________________
Secretary
|
Exhibit 25.8
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
Bank One, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
1 Bank One Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
|
Bank One, National Association 1 Bank One Plaza, Suite IL1-0126 Chicago, Illinois 60670-0126 Attn: John R. Prendiville, Corporate Trust Services Division (312) 661-5223
(Name, address and telephone number of agent for service)
The Bank of New York Company, Inc.
(Exact name of obligor as specified in its charter)
New York 13-2614959 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) One Wall Street New York, New York 10286 (Address of principal executive offices) (Zip Code) |
Guarantee of Preferred Debt Securities Of BNY Capital V
(Title of Indenture Securities)
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
No such affiliation exists with the trustee.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 21st day of May, 2001.
Bank One, National Association, Trustee
By /s/ John R. Prendiville John R. Prendiville Vice President |
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 21, 2001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between The Bank of New York Company, Inc. and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
Bank One, National Association
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
-------
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).............. 0081 5,462,170 1.a
b. Interest-bearing balances(2)....................................... 0071 5,170,242 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A).......... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)....... 1773 12,523,350 2.b
3. Federal funds sold and securities purchased under agreements to
resell................................................................ 1350 16,069,589 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C)................................................................. 2122 55,190,023 4.a
b. LESS: Allowance for loan and lease losses.......................... 3123 1,218,923 4.b
c. LESS: Allocated transfer risk reserve.............................. 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCF
---
reserve (item 4.a minus 4.b and 4.c)............................... 2125 53,971,100 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 2,521,374 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 567,098 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 963 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 409,736 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 340,763 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 202,851 10.
11. Other assets (from Schedule RC-F)..................................... 2160 3,989,302 11.
12. Total assets (sum of items 1 through 11).............................. 2170 101,228,538 12.
|
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC
031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Schedule RC-Continued
Dollar Amounts in
Thousands
-----------------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)............................................... 2200 26,522,858 13.a
(1) Noninterest-bearing(1)................................................ 6631 11,338,557 13.a1
(2) Interest-bearing..................................................... 6636 15,184,301 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)........................................ 2200 36,247,795 13.b
(1) Noninterest bearing................................................... 6631 778,075 13.b1
(2) Interest-bearing...................................................... 6636 35,469,720 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 2,276,371 14
15. a. Demand notes issued to the U.S. Treasury ................................. RCON 2840 310,767 15.a
b. Trading Liabilities (from Schedule RC-D).............................. RCFD 3548 2,104,757 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less................................ 2332 18,245,377 16.a
b. With original maturity of more than one year.............................. A547 2,298,488 16.b
c. With original maturity of more than three years........................... A548 1,845,898 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding...................... 2920 340,763 18.
19. Subordinated notes and debentures............................................ 3200 2,800,000 19.
20. Other liabilities (from Schedule RC-G)....................................... 2930 2,505,175 20.
21. Total liabilities (sum of items 13 through 20)............................... 2948 95,498,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................ 3838 0 23.
24. Common stock................................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)..................... 3839 3,861,173 25.
26.a. Undivided profits and capital reserves..................................... 3632 1,703,180 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................................. 8434 (36,495) 26.b
c. Accumulated net gains (losses) on cash flow hedges......................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments.......................... 3284 1,573 27.
28. Total equity capital (sum of items 23 through 27)............................ 3210 5,730,289 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)........................................ 3300 101,228,538 29.
|
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing --------------
work performed for the bank by independent external N/A Number
auditors as of any date during 1996..................................... RCFD 6724 M.1.
--------------
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by
with generally accepted auditing standards by a certified other external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
3 = Directors' examination of the bank conducted in work)
accordance with generally accepted auditing standards 8 = No external audit work
by a certified public accounting firm (may be required by
state chartering authority)
|
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
EXHIBIT 25.9
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
Bank One, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
1 Bank One Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
|
Bank One, National Association 1 Bank One Plaza, Suite IL1-0126 Chicago, Illinois 60670-0126 Attn: John R. Prendiville, Corporate Trust Services Division (312) 661-5223
(Name, address and telephone number of agent for service)
The Bank of New York Company, Inc.
(Exact name of obligor as specified in its charter)
New York 13-2614959 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) One Wall Street New York, New York 10286 (Address of principal executive offices) (Zip Code) |
Guarantee of Preferred Debt Securities Of BNY Capital VI
(Title of Indenture Securities)
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
No such affiliation exists with the trustee.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 21st day of May, 2001.
Bank One, National Association, Trustee
By /s/ John R. Prendiville John R. Prendiville Vice President |
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 21, 2001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between The Bank of New York Company, Inc. and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
Bank One, National Association
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
--------
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).............. 0081 5,462,1701.a
b. Interest-bearing balances(2)....................................... 0071 5,170,2421.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A).......... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)....... 1773 12,523,350 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 16,069,589 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C).................................................................. 2122 55,190,023 4.a
b. LESS: Allowance for loan and lease losses........................... 3123 1,218,923
c. LESS: Allocated transfer risk reserve............................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCF
---
reserve (item 4.a minus 4.b and 4.c)................................. 2125 53,971,100 4.d
5. Trading assets (from Schedule RD-D).................................... 3545 2,521,374 5.
6. Premises and fixed assets (including capitalized leases)............... 2145 567,098 6.
7. Other real estate owned (from Schedule RC-M)........................... 2150 963 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)......................................... 2130 409,736 8.
9. Customers' liability to this bank on acceptances outstanding........... 2155 340,763 9.
10. Intangible assets (from Schedule RC-M)................................. 2143 202,851 10.
11. Other assets (from Schedule RC-F)...................................... 2160 3,989,302 11.
12. Total assets (sum of items 1 through 11)............................... 2170 101,228,538 12.
|
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1).......................................... 2200 26,522,858 13.a
(1) Noninterest-bearing(1)........................................... 6631 11,338,557 13.a1
(2) Interest-bearing................................................. 6636 15,184,301 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)................................... 2200 36,247,795 13.b
(1) Noninterest bearing.............................................. 6631 778,075 13.b1
(2) Interest-bearing................................................. 6636 35,469,720 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 2,276,371 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 310,767 15.a
b. Trading Liabilities (from Schedule RC-D).............................. RCFD 3548 2,104,757 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less............................ 2332 18,245,377 16.a
b. With original maturity of more than one year.......................... A547 2,298,488 16.b
c. With original maturity of more than three years....................... A548 1,845,898 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.................. 2920 340,763 18.
19. Subordinated notes and debentures........................................ 3200 2,800,000 19.
20. Other liabilities (from Schedule RC-G)................................... 2930 2,505,17520.
21. Total liabilities (sum of items 13 through 20)........................... 2948 95,498,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............................ 3838 0 23.
24. Common stock............................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)................. 3839 3,861,173 25.
26.a. Undivided profits and capital reserves................................... 3632 1,703,18026.a
b. Net unrealized holding gains (losses) on available-for-sale
securities............................................................... 8434 ( 36,495) 26.b
c. Accumulated net gains (losses) on cash flow hedges....................... 4336 026.c
27. Cumulative foreign currency translation adjustments...................... 3284 1,573 27.
28. Total equity capital (sum of items 23 through 27)........................ 3210 5,730,289 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).................................... 3300 101,228,538 29.
|
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best ------------------
describes the most comprehensive level of auditing Number work performed for N/A Number
the bank by independent external RCFID 6724 M.1.
auditors as of any date during 1996............................................... ------------------
|
1 = Independent audit of the bank conducted in accordance with generally 4 = Directors' examination of the bank
accepted auditing standards by a certified public accounting firm which performed by other external auditors (may be
submits a report on the bank required by state chartering authority)
2 = Independent audit of the bank's parent holding company conducted in 5 = Review of the bank's financial statements by
accordance with generally accepted auditing standards by a certified public external auditors
accounting firm which submits a report on the consolidated holding company 6 = Compilation of the bank's financial
(but not on the bank separately) statements by external auditors
3 = Directors' examination of the bank conducted in accordance with generally 7 = Other audit procedures (excluding tax
accepted auditing standards by a certified public accounting firm (may be preparation work)
required by state chartering authority) 8 = No external audit work
|
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
Exhibit 25.10
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
Bank One, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
1 Bank One Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
Bank One, National Association
1 Bank One Plaza, Suite IL1-0126
Chicago, Illinois 60670-0126
|
Attn: John R. Prendiville, Corporate Trust Services Division (312) 661-5223
(Name, address and telephone number of agent for service)
The Bank of New York Company, Inc.
(Exact name of obligor as specified in its charter)
New York 13-2614959 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) One Wall Street New York, New York 10286 (Address of principal executive offices) (Zip Code) |
Guarantee of Preferred Debt Securities Of BNY Capital VII
(Title of Indenture Securities)
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
No such affiliation exists with the trustee.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 21st day of May, 2001.
Bank One, National Association, Trustee
By /s/ John R. Prendiville John R. Prendiville Vice President |
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 21, 2001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between The Bank of New York Company, Inc. and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
Bank One, National Association
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
------
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).............................. 0081 5,462,170 1.a
b. Interest-bearing balances(2)....................................................... 0071 5,170,242 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A).......................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)....................... 1773 12,523,350 2.b
3. Federal funds sold and securities purchased under agreements to resell................ 1350 16,069,589 3.
4. Loans and lease financing receivables:
RCFD
----
a. Loans and leases, net of unearned income (from Schedule RC-C)...................... 2122 55,190,023 4.a
b. LESS: Allowance for loan and lease losses.......................................... 3123 1,218,923 4.b
c. LESS: Allocated transfer risk reserve.............................................. 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCF
---
reserve (item 4.a minus 4.b and 4.c)............................................... 2125 53,971,100 4.d
5. Trading assets (from Schedule RD-D)................................................... 3545 2,521,374 5.
6. Premises and fixed assets (including capitalized leases).............................. 2145 567,098 6.
7. Other real estate owned (from Schedule RC-M).......................................... 2150 963 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................................ 2130 409,736 8.
9. Customers' liability to this bank on acceptances outstanding.......................... 2155 340,763 9.
10. Intangible assets (from Schedule RC-M)................................................ 2143 202,851 10.
11. Other assets (from Schedule RC-F)..................................................... 2160 3,989,302 11.
12. Total assets (sum of items 1 through 11).............................................. 2170 101,228,538 12.
|
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC
031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)...................................................... 2200 26,522,858 13.a
(1) Noninterest-bearing(1)....................................................... 6631 11,338,557 13.a1
(2) Interest-bearing............................................................. 6636 15,184,301 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)............................................... 2200 36,247,795 13.b
(1) Noninterest bearing.......................................................... 6631 778,075 13.b1
(2) Interest-bearing............................................................. 6636 35,469,720 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 2,276,371 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 310,767 15.a
b. Trading Liabilities(from Schedule RC-D).......................................... RCFD 3548 2,104,757 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less....................................... 2332 18,245,377 16.a
b. With original maturity of more than one year.................................... A547 2,298,488 16.b
c. With original maturity of more than three years.................................. A548 1,845,898 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding............................. 2920 340,763 18.
19. Subordinated notes and debentures................................................... 3200 2,800,000 19.
20. Other liabilities (from Schedule RC-G).............................................. 2930 2,505,175 20.
21. Total liabilities (sum of items 13 through 20)...................................... 2948 95,498,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus....................................... 3838 0 23.
24. Common stock........................................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)............................ 3839 3,861,173 25.
26. a. Undivided profits and capital reserves............................................ 3632 1,703,180 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities........................................................................ 8434 (36,495) 26.b
c. Accumulated net gains (losses) on cash flow hedges................................ 4336 0 26.c
27. Cumulative foreign currency translation adjustments................................. 3284 1,573 27.
28. Total equity capital (sum of items 23 through 27)................................... 3210 5,730,289 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................................... 3300 101,228,538 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing
work performed for the bank by independent external Number
auditors as of any date during 1996.............................................. RCFD 6724 M.1.
1 = Independent audit of the bank 4. = Directors' examination of the bank performed by other
conducted in accordance external auditors (may be required by state
with generally accepted auditing standards by a certified chartering authority)
public accounting firm which submits a report on the bank 5 = Review of the bank's financial statements by
2 = Independent audit of the bank's external auditors
parent holding company 6 = Compilation of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 7 = Other audit procedures (excluding tax preparation work)
submits a report on the consolidated holding company 8 = No external audit work
(but not on the bank separately)
3 = Directors' examination of the bank
conducted in accordance with generally
accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
|
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
EXHIBIT 25.11
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
Bank One, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
1 Bank One Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
Bank One, National Association
1 Bank One Plaza, Suite IL1-0126
Chicago, Illinois 60670-0126
|
Attn: John R. Prendiville, Corporate Trust Services Division (312) 661-5223
(Name, address and telephone number of agent for service)
The Bank of New York Company, Inc.
(Exact name of obligor as specified in its charter)
New York 13-2614959 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) One Wall Street New York, New York 10286 (Address of principal executive offices) (Zip Code) |
Guarantee of Preferred Debt Securities Of BNY Capital VIII
(Title of Indenture Securities)
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
No such affiliation exists with the trustee.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 21st day of May, 2001.
Bank One, National Association, Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 21, 2001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between The Bank of New York Company, Inc. and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
Bank One, National Association
By /s/ John R. Prendiville
John R. Prendiville
Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 12/31/00 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
|
Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in thousands C400
----------------
RCFD BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).......... 0081 5,462,170 1.a
b. Interest-bearing balances(2)................................... 0071 5,170,242 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 12,523,350 2.b
3. Federal funds sold and securities purchased under agreements to
resell............................................................ 1350 16,069,589 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C)........................................................... 2122 55,190,023 4.a
b. LESS: Allowance for loan and lease losses...................... 3123 1,218,923 4.b
c. LESS: Allocated transfer risk reserve.......................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCF
---
reserve (item 4.a minus 4.b and 4.c)............................ 2125 53,971,100 4.d
5. Trading assets (from Schedule RD-D)............................... 3545 2,521,374 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 567,098 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 963 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 409,736 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 340,763 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 202,851 10.
11. Other assets (from Schedule RC-F)................................. 2160 3,989,302 11.
12. Total assets (sum of items 1 through 11).......................... 2170 101,228,538 12.
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One, NA Call Date:12/31/00 ST-BK: 17-1630 FFIEC 031 Address: 1 Bank One Plaza, Ste 0303 Page RC-2 City, State Zip: Chicago, IL 60670 |
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)...................................... 2200 26,522,858 13.a
(1) Noninterest-bearing(1)....................................... 6631 11,338,557 13.a1
(2) Interest-bearing........................................... 6636 15,184,301 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)............................... 2200 36,247,795 13.b
(1) Noninterest bearing.......................................... 6631 778,075 13.b1
(2) Interest-bearing............................................. 6636 35,469,720 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 2,276,371 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 310,767 15.a
b. Trading Liabilities(from Schedule RC-D).......................... RCFD 3548 2,104,757 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less....................... 2332 18,245,377 16.a
b. With original maturity of more than one year..................... A547 2,298,488 16.b
c. With original maturity of more than three years.................. A548 1,845,898 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding............. 2920 340,763 18.
19. Subordinated notes and debentures................................... 3200 2,800,000 19.
20. Other liabilities (from Schedule RC-G).............................. 2930 2,505,175 20.
21. Total liabilities (sum of items 13 through 20)...................... 2948 95,498,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus....................... 3838 0 23.
24. Common stock........................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)............ 3839 3,861,173 25.
26. a. Undivided profits and capital reserves........................... 3632 1,703,180 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities....................................................... 8434 (36,495) 26.b
c. Accumulated net gains (losses) on cash flow hedges.............. 4336 0 26.c
27. Cumulative foreign currency translation adjustments................. 3284 1,573 27.
28. Total equity capital (sum of items 23 through 27)................... 3210 5,730,289 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................... 3300 101,228,538 29.
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Memorandum
To be reported only with the March Report of Condition. ------------------------------------
1. Indicate in the box at the right the number of the statement below that N/A Number
best describes the most comprehensive level of auditing work performed for the ---
bank by independent external auditors as of any date during 1996........... RCFD 6724 M.1.
------------------------------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company (but
not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be required by
state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements byexternal auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.