SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): June 26, 2002
1-6152 13-2614959
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(Commission file number) (I.R.S. employer
identification number)
One Wall Street, New York, NY 10286
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(Address of principal (Zip code)
executive offices)
212 - 495 - 1784
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(Registrant's telephone number,
including area code)
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Item 5 Other Events
Seven exhibits are filed herewith in connection with the Registration Statement on Form S-3 (File Nos. 333-89586, 333-89586-01, 333-89586-02, 333-89586-03, 333-89586-04) filed by The Bank of New York Company, Inc. (the "Company") with the Securities and Exchange Commission covering the Company's Senior Subordinated Medium-Term Notes, Series F and Senior Medium-Term Notes, Series E (collectively, the "Notes"), issuable under an Indenture, dated as of October 1, 1993 between the Company and J.P. Morgan Trust Company (the "Senior Subordinated Indenture") and an Indenture, dated as of July 18, 1991 between the Company and Deutsche Bank Trust Company Americas, respectively (the "Senior Indenture" and together with the Senior Subordinated Indenture, the "Indentures"). The exhibits consist of the form of Distribution Agreement, dated June 26, 2002, among the Company, Banc of America Securities LLC, Credit Suisse First Boston Corporation, Goldman, Sachs & Co., J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc., UBS Warburg LLC and BNY Capital Markets, Inc. (the "Distribution Agreement"); the Forms of Notes; Officers' Certificates pursuant to Section 301 of the Indentures; and the opinion of counsel as to the legality of the Notes.
Item 7 Financial Statements, Pro Forma Financial
Information and Exhibits
(c) Exhibits
The following exhibits are filed herewith:
1 Form of Distribution Agreement, dated June 26, 2002 among the Registrant and Banc of America Securities, Inc., Credit Suisse First Boston Corporation, Goldman, Sachs & Co., J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc., UBS Warburg LLC and BNY Capital Markets, Inc., as Agents.
4.1 Form of Registrant's Global Medium Term Fixed Rate Note.
4.2 Form of Registrant's Global Medium Term Floating Rate Note.
4.3 Officers' Certificate pursuant to Section 301 of
the Senior Subordinated Indenture.
4.4 Officers' Certificate pursuant to Section 301 of the Senior Indenture.
5 Opinion of Paul A. Immerman, Esq.
23 Consent of Paul A. Immerman, Esq. (included in Exhibit 5)
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: June 26, 2002
The Bank of New York Company, Inc.
By: /s/ Thomas J. Mastro
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Name: Thomas J. Mastro
Title: Comptroller
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EXHIBIT INDEX
Exhibit No. Description
1 Form of Distribution Agreement, dated June 26, 2002 among the
Registrant and Banc of America Securities LLC, Credit Suisse
First Boston Corporation, Goldman, Sachs & Co., J.P. Morgan
Securities Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, Salomon Smith
Barney Inc., UBS Warburg LLC and BNY Capital Markets, Inc., as
Agents.
4.1 Form of Registrant's Global Medium-Term Fixed Rate Note.
4.2 Form of Registrant's Global Medium-Term Floating Rate Note
4.3 Officers' Certificate pursuant to Section 301 of the Senior
Subordinated Indenture.
4.4 Officers' Certificate pursuant to Section 301 of the Senior
Indenture.
5 Opinion of Paul A. Immerman, Esq.
23 Consent of Paul A. Immerman, Esq. (included in Exhibit 5)
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EXHIBIT 1
EXECUTION COPY
THE BANK OF NEW YORK COMPANY, INC
Senior Medium-Term Notes Series E
Senior Subordinated Medium-Term Notes Series F Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
June 26, 2002
Banc of America Securities LLC Credit Suisse First Boston Corporation 9 West 57th Street 11 Madison Avenue New York, New York 10019 New York, New York 10010 Goldman, Sachs & Co. J.P. Morgan Securities Inc. 85 Broad Street 270 Park Avenue New York, New York 10004 New York, New York 10017 Merrill Lynch, Pierce, Fenner & Smith Morgan Stanley & Co. Incorporated Incorporated 1585 Broadway 4 World Financial Center New York, New York 10036 New York, New York 10080 Salomon Smith Barney Inc. UBS Warburg LLC 390 Greenwich Street 677 Washington Blvd. New York, New York 10013 Stamford, Connecticut 06901 BNY Capital Markets, Inc. One Wall Street New York, New York 10286 |
Dear Sirs:
The Bank of New York Company, Inc., a New York corporation (the "Company"), confirms its agreement with Banc of America Securities LLC, Credit Suisse First Boston Corporation, Goldman, Sachs & Co., J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc., UBS Warburg LLC and BNY Capital Markets, Inc. (the "Agents") with respect to the issue and sale by the Company from time to time of its Senior Medium-Term Notes Series E (the "Senior Notes") and its Senior Subordinated Medium-Term Notes Series F (the "Senior Subordinated Notes" and, together with the Senior Notes, the "Notes") described herein. The Senior Notes are to be issued pursuant to an indenture dated as of July 18, 1991, as it may be supplemented from time to time (the "Senior Indenture"), between the Company and Bankers Trust Company, as
trustee (the "Senior Trustee"). The Senior Subordinated Notes are to be issued pursuant to an indenture dated as of October 1, 1993, as it may be supplemented from time to time (the "Senior Subordinated Indenture" and, together with the Senior Indenture, the "Indentures"), between the Company and Chase Manhattan Trust Company, National Association, as trustee (the "Senior Subordinated Trustee" and, together with the Senior Trustee, the "Trustees"). As of the date hereof, the Company has authorized the issuance and sale of up to an aggregate initial offering price not to exceed U.S. $1,000,000,000 (or its equivalent, based upon the applicable exchange rate at the time of issuance, in such foreign currencies as the Company shall designate at the time of issuance) of Notes to or through the Agents pursuant to the terms of this Agreement. It is understood, however, that the Company may from time to time authorize the issuance of additional Notes and that such additional Notes may be sold through or to the Agents pursuant to the terms of this Agreement, all as though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company directly to purchasers, in which case the Agents will act as agents of the Company in soliciting Note purchasers, and (as may from time to time be agreed to by the Company and any Agent or Agents) to such Agent or Agents as principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the "SEC") a registration statement on Form S-3 (Nos. 333-89586, 333-89586-01, 333-89586-02, 333-89586-03 and 333-89586-04) for the registration of, among other securities, debt securities, including the Notes, under the Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the SEC under the 1933 Act (the "1933 Act Regulations"). Such registration statement has been declared effective by the SEC and the Indentures have been qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement (and any further registration statement that may be filed by the Company for the purpose of registering additional Notes and in connection with which this Agreement is included or incorporated by reference as an exhibit) and the prospectus constituting a part thereof, and any prospectus supplements relating to the Notes, including all documents incorporated therein by reference, as from time to time amended or supplemented by the filing of documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), or the 1933 Act or otherwise, are referred to herein as the "Registration Statement" and the "Prospectus," respectively, except that if any revised prospectus shall be provided to the Agents by the Company for use in connection with the offering of the Notes that is not required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term "Prospectus" shall refer to such revised prospectus from and after the time it is first provided to the Agents for such use.
dealer in connection with the offer or sale of the Notes. The Company may also sell Notes directly to investors on its own behalf, including to agents that are not party to this Agreement and may enter into agreements similar to this Agreement with other parties; provided, however, that the Company shall notify the Agents upon entering into any such agreement that is substantially similar to this Agreement.
(a) The Company represents and warrants to the Agents as of the date hereof, as of the date of each acceptance by the Company of an offer for the purchase of Notes (whether through an Agent as agent or to an Agent as principal), as of the date of each delivery of Notes (whether through an Agent as agent or to an Agent as principal) (the date of each such delivery to an Agent as principal being hereafter referred to as a "Settlement Date"), and as of the times referred to in Section 7(b) hereof (in each case, the "Representation Date") as follows:
this Agreement and each applicable Terms Agreement, if any, and the consummation of the transactions contemplated herein and therein will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, contract, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation by the Company of the provisions of the Certificate of Incorporation, as amended, or By-Laws of the Company, or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of its properties, and no consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental agency or body is required for the issue and sale of the Notes or the consummation of the other transactions contemplated by this Agreement or any Terms Agreement or the Indentures, except such as may be required under the 1933 Act, the 1939 Act and the 1933 Act Regulations and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Notes by the Agent.
The Company reserves the right, in its sole discretion, to suspend solicitation of purchases of the Notes through the Agents, as agents, commencing at any time for any period of time or permanently. Upon receipt of instructions from the Company, the Agents will forthwith suspend solicitation of purchases from the Company until such time as the Company has advised the Agents that such solicitation may be resumed.
Unless otherwise agreed to by the Company and the applicable Agent with respect to sales made to retail investors, the Company agrees to pay such Agent a commission, in the form of a discount, equal to the applicable percentage of the amount of the principal amount of each Note sold by the Company as a result of a solicitation made by such Agent as set forth in Schedule A hereto. Each Agent may re-allow any portion of the commission payable pursuant hereto to dealers or purchasers in connection with the offer and sale of any Notes; provided, however, that such Agent shall obtain the prior written consent of the Company to any such reallowance.
The purchase price, interest rate, maturity date and other terms of the Notes shall be agreed upon by the Company and the applicable Agent and set forth in a pricing supplement to the Prospectus (a "Pricing Supplement") to be prepared following each acceptance by the Company of an offer for the purchase of Notes. Except as may be otherwise provided in the Pricing Supplement (i.e., in the case of foreign currency denominated Notes) the Notes will be issued in denominations of U.S. $1,000 or any amount in excess thereof that is an integral multiple of U.S. $1,000. All Notes sold through an Agent as agent will be sold at 100% of their principal amount unless otherwise agreed to by the Company and such Agent.
described below) between an Agent or Agents and the Company is herein referred
to as a "Terms Agreement." Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any applicable
Terms Agreement between the Company and an Agent or Agents. Each such Terms
Agreement, whether oral (and promptly confirmed in writing, which may be by
facsimile transmission) or in writing, shall be with respect to such information
(as applicable) as is specified in Annex I hereto. Each Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement (or otherwise) shall
be deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall specify the principal amount of
Notes to be purchased by an Agent or Agents pursuant thereto, the price to be
paid to the Company for such Notes (which, if not so specified in a Terms
Agreement, shall be at a discount equivalent to the applicable commission set
forth on Schedule A to the applicable Terms Agreement), the time and place of
delivery of and payment for such Notes, any provision relating to rights of and
defaults by other purchasers acting together with such Agent or Agents in the
reoffering of the Notes and such other provisions (including further terms of
the Notes) as may be mutually agreed upon. Each Agent is authorized to utilize a
selling or dealer group in connection with the resale of the Notes purchased;
provided, however, that such Agent shall obtain the prior written consent of the
Company to such utilization. Such Terms Agreement shall also specify the
requirements, if any, for the opinions of counsel, letters of the Company's
independent public accountants and officer's certificate pursuant to Sections
7(b), 7(c) and 7(d) hereof.
comparable period of the preceding fiscal year, as well as such other information and explanations as shall be necessary for an understanding of such amounts or as shall be required by the 1933 Act or the 1933 Act Regulations; provided, however, that if on the date of such release the Agents shall have suspended solicitation of purchases of the Notes in their capacity as agent pursuant to a request from the Company, and the Agents shall not then hold any Notes as principal, the Company shall not be obligated so to amend or supplement the Prospectus until such time as the Company shall determine that solicitation of purchases of the Notes should be resumed or shall subsequently enter into a new Terms Agreement with an Agent, and provided further that this covenant shall not obligate the Company to incorporate financial information or discussion other than that contained in its regular earnings press release with respect to such quarter or year.
(i) Each of the Company and the Bank has been duly incorporated and is an existing corporation or banking corporation, respectively, in good standing under the laws of the State of New York, and the Company has the corporate power and authority to own its properties and conduct its business as described in the Prospectus.
(ii) Each Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the 1939 Act and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(iii) The Notes have been duly authorized and established by the Company in conformity with the applicable Indenture, and when the terms of a particular Note and of its issuance and sale have been duly authorized and
established by all necessary corporate action on the part of the Company in conformity with such Indenture and such Note has been duly prepared, executed, authenticated and issued in accordance with such Indenture and delivered against payment in accordance with this Agreement, such Note will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(iv) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date of such opinion under the Federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Notes by the Company to or through the Agent, in accordance with this Agreement, have been obtained or made (except that such counsel need express no opinion with respect to state securities laws).
(v) This Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of the Indentures did not, and of this Agreement do not, and the completion, execution and issuance of each particular Note in accordance with the applicable Indenture, the sale by the Company of such Note in accordance with this Agreement and the performance by the Company of its obligations under the Indentures, this Agreement and such Note will not, violate the Company's Certificate of Incorporation or By-Laws, in each case as in effect at the date of such opinion, or violate any existing Federal law of the United States or law of the State of New York (except that such counsel need express no opinion with respect to federal or state securities laws, other antifraud laws, fraudulent transfer laws, the Employee Retirement Income Security Act of 1974 and laws that restrict transactions between U.S. persons and citizens of foreign countries or other jurisdictions and related laws, and insofar as performance by the Company of its obligations under such Indenture, this Agreement and the Notes is concerned, such counsel need express no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights).
(vii) Each part of the Registration Statement, when such part became effective, and the Prospectus (other than the financial statements and other financial and statistical data therein, as to which such counsel need express no opinion) appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Notes, to the requirements of the 1933 Act, the 1939 Act and the applicable rules and regulations of the SEC thereunder; further, nothing which came to such counsel's attention in the course of such counsel's review (as described in such opinion) has caused such counsel to believe that, insofar as relevant to the offering of the Notes, any part of the Registration Statement, when such part became effective, contained any untrue
statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion (other than the financial statements and other financial and statistical data therein, as to which such counsel need express no opinion), contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel does not know of any litigation or any governmental proceeding instituted or threatened against the Company or the Bank that would be required to be disclosed in the Prospectus and is not so disclosed, and does not know of any documents that are required to be filed as exhibits to the Registration Statement and are not so filed or of any documents that are required to be summarized in the Prospectus and are not so summarized. Such counsel may state that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus except for those made under the captions "Description of Senior Debt Securities and Senior Subordinated Debt Securities", "Plan of Distribution", "Description of Medium-Term Notes" and "Plan of Distribution of Medium-Term Notes" in the Prospectus 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 and statistical data contained in the Registration Statement or the Prospectus or as to the statements of eligibility of the Trustees.
In providing such opinion, such counsel may assume, in connection with the opinion set forth in paragraph 5(a)(1)(iii) above, that at the time of issuance, sale and delivery of each particular Note the authorization of the Notes will not have been modified or rescinded and, with respect to each Note, that such Note will conform to the form of Note examined by such counsel. Such counsel may also assume in connection with such opinion that at the time of the issuance, sale and delivery of each particular Note there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Note and that the issuance, sale and delivery of such Note, all of the terms of such Note and the performance by the Company of its obligations thereunder will comply with applicable law and with each requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and will not result in a default under or breach of any agreement or instrument then binding on the Company. Such counsel may state in rendering the opinion set forth in paragraph 5(a)(1)(iii) above that, as of the date of such opinion, a judgment for money in an action based on Notes denominated in foreign currencies or currency units in a Federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars and that the date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Note is denominated into United States dollars will depend upon various factors, including which court renders the judgment. In the case of a Note denominated in a foreign currency, a state court in the State of New York rendering a judgment on such Note would be required under Section 27 of the New York Judiciary Law to render such judgment in the foreign currency in which the Note is denominated,
and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment.
(i) there shall not have occurred any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that, in the judgment of the Agents after consultation with the Company, is material and adverse and that makes it, in the judgment of the Agents, impracticable to market the Notes or deliver Notes to the purchaser on the terms and in the manner contemplated by the Prospectus, as so amended or supplemented; and
(ii) there shall not have occurred any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the 1933 Act Regulations), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating);
except, in each case described in paragraph (i) or (ii) above, as disclosed to the Agents in writing by the Company prior to such solicitation or, in the case of a purchaser of Notes, as disclosed to the relevant purchaser before the offer to purchase such Notes was made.
The Company acknowledges that the Agents shall not have any duty or obligation to exercise the judgment described in paragraphs (i) and (ii) above on behalf of any purchaser of Notes other than the Agents.
If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement (or, at the option of the applicable Agents, any applicable Terms Agreement) may be terminated by the Agents by notice to the Company at any time, and any such termination shall be without liability of any party to any other party, except that the covenant under Section 4(g) hereof, the indemnity and contribution agreement set forth in Section 8 hereof, the provisions concerning payment of expenses under Section 9 hereof, the provisions concerning the representations, warranties and agreements to survive delivery of Section 10 hereof, Section 13 hereof and the provisions set forth under "Parties" of Section 14 hereof shall remain in effect.
or supplement relating exclusively to an offering of securities other than the Notes) or there is filed with the SEC any document incorporated by reference in the Prospectus (other than any Current Report on Form 8-K relating exclusively to the issuance of securities other than the Notes) or, if required pursuant to the terms of a Terms Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement, the Company shall furnish or cause to be furnished to the Agents forthwith a certificate dated the date of filing with the SEC of such supplement or document, the date of effectiveness of such amendment or the date of such sale, as the case may be, in form satisfactory to the Agents to the effect that the statements contained in the certificate referred to in Section 5(b) hereof that were last furnished to the Agents are true and correct at the time of such amendment, supplement, filing or sale, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(b) hereof, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate; provided, however, that if the Agents have suspended solicitation of purchases of the Notes in their capacity as agents pursuant to a request from the Company, and the Agents shall not hold any Notes as principal, the Company shall not be obligated so to furnish the Agents with a certificate or certificates until such time as the Company shall determine that the solicitation of purchases of the Notes should be resumed or shall subsequently enter into a new Terms Agreement with an Agent.
(b) The Agents will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), the Prospectus (or any amendment or supplement thereto) or any other prospectus relating to the Notes, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement (or any amendment thereto), the Prospectus (or any amendment or supplement thereto) or any other prospectus relating to the Notes, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Agents expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred, as incurred, by the Company in connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof but the omission so to notify the indemnifying party shall not relieve it from any liability except to the extent that it has been prejudiced in any material respect by such failure or from any liability that it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Agents on the other from the offering of the Notes to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above and such indemnifying party was prejudiced in a material respect by such failure, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Agents on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Agents on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total commissions or discounts received by the Agents in respect thereof. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Agents and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Agents agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), the Agents shall not be required to contribute any amount in excess of the amount by which the total public offering price at which the Notes purchased by or through it were sold exceeds the amount of any damages that the Agents have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls an Agent within the meaning of the 1933 Act; and the obligations of the Agents, under this Section 8 shall be in addition to any liability that the Agents may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the 1933 Act.
reasonable fees and disbursements of counsel for the Agents incurred from time
to time in connection with the transactions contemplated hereby; (v) any fees
charged by securities rating services for rating the Notes; (vi) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc., of the terms of the sale of the Notes; (vii) the cost of
preparing the Notes; (viii) the fees and expenses of the Trustees and any agent
of the Trustees and the fees and disbursements of counsel for the Trustees in
connection with the Indentures and the Notes; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder that are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section and Section 8 hereof, the Agents will
pay all of its own costs and expenses, except as otherwise provided in this
Section 9, including transfer taxes on resale of any of the Notes by them, and
any advertising expenses connected with any offers they may make.
Company, impracticable to market the Notes or enforce contracts for the sale of the Notes to which such Terms Agreement relates on the terms and in the manner contemplated in the Prospectus and such Terms Agreement; or (iii) if subsequent to the date of such Terms Agreement there has occurred any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the 1933 Act Regulations), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating).
If to the Company:
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Attention: Secretary
Facsimile: 212-635-1798
If to the Agents:
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Attention: Lily Chang
Facsimile: 212-847-6442
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Attention: Short & Medium Term Finance Facsimile: 212-743-5825
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Douglas Lipton Facsimile: 212-422-9458
J.P. Morgan Securities Inc. 270 Park Avenue, 9th Floor New York, New York 10017 Attention: Transaction Execution Group Facsimile: 212-834-6702
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center, 15th Floor
New York, New York 10080 Attention: MTN Product Management Facsimile: 212-449-2234
Morgan Stanley & Co. Incorporated 1585 Broadway - Second Floor New York, New York 10036
Attention: Manager - Continuously Offered Products Telephone: 212-761-1890 Facsimile: 212-761-0780
Salomon Smith Barney Inc. 390 Greenwich Street - Fourth Floor New York, New York 10013 Attention: Susan Levitt Facsimile: 212-783-2274
UBS Warburg LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Attention: Syndicate Desk Telephone: 203-719-1088 Facsimile: 203-719-0495
BNY Capital Markets, Inc.
103 Eisenhower Parkway
Roseland, New Jersey 07068
Attention: Robert Gorham
Facsimile: 973-226-7618
and
BNY Capital Markets, Inc. One Wall Street, 18th Floor New York, New York 10286 Attention: Bennett Leichman Facsimile: 212-635-8525
With a copy to:
Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Financial Center
New York, New York 10080 Facsimile: 212-449-0188
and
Morgan Stanley & Co. Incorporated 1585 Broadway - 29th Floor New York, New York 10036
Attention: Peter Cooper, Investment Banking Information Center Telephone: 212-761-8385 Facsimile: 212-761-0260
or at such other address as such party may designate from time to time by notice duly given in accordance with the terms of this Section 12.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company two counterparts hereof, whereupon this instrument along with all counterparts will become a binding agreement between the Agent and the Company in accordance with its terms.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
Title:
Accepted as of the date set forth above:
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC.
UBS WARBURG LLC
BNY CAPITAL MARKETS, INC.
Schedule A
----------
If a sale is made to retail investors:
Term Commission Rates
---- ----------------
From 9 months but less than 1 year ............................ 0.20%
From 1 year but less than 2 years ............................. 0.40
From 2 years but less than 3 years ............................ 0.60
From 3 years but less than 4 years ............................ 0.75
From 4 years but less than 5 years ............................ 1.00
From 5 years but less than 6 years ............................ 1.50
From 6 years but less than 7 years ............................ 2.00
From 7 years but less than 10 years ........................... 2.25
From 10 years but less than 15 years .......................... 2.50
From 15 years but less than 20 years .......................... 2.75
From 20 years but less than 30* years ......................... 3.00
----------
|
* With respect to each Note with a term in excess of 30 years from the date of issue, the commission payable to the Agent with respect to each such Note sold as a result of a solicitation made by the Agent will be agreed to by the Company and the Agent at the time of such sale.
If a sale is made to institutional investors:
Term Commission Rates
---- ----------------
From 9 months but less than 1 year ............................. .125%
From 1 year but less than 18 months ............................ .150
From 18 months but less than 2 years ........................... .200
From 2 years but less than 3 years ............................. .250
From 3 years but less than 4 years ............................. .350
From 4 years but less than 5 years ............................. .450
From 5 years but less than 6 years ............................. .500
From 6 years but less than 7 years ............................. .550
From 7 years but less than 10 years ............................ .600
From 10 years but less than 15 years ........................... .625
From 15 years but less than 20 years ........................... .700
From 20 years but less than 30* years .......................... .750
----------
|
* With respect to each Note with a term in excess of 30 years from the date of issue, the commission payable to the Agent with respect to each such Note sold as a result of a solicitation made by the Agent will be agreed to by the Company and the Agent at the time of such sale.
THE BANK OF NEW YORK COMPANY, INC.
(A New York corporation)
Medium-Term Notes
TERMS AGREEMENT
-------------, ---
The Bank of New York Company, Inc.
One Wall Street
New York, New York 10286
Attention:
Re: Distribution Agreement dated June 26, 2002
The undersigned agrees to purchase the following principal amount of
[Senior][Senior Subordinated] Notes with the terms indicated below:
The Notes will be the Company's [Senior][Senior Subordinated] Medium-Term Notes Series [E] [F].
$ ___________________ (or principal amount of other Specified Currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Regular Floating Rate Note, Floating Rate/Fixed Note or Inverse Floating Rate Note:
Base Rate or Rates:
Initial Interest Rate:
Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Month(s), if any:
Interest Payment Month(s), if any:
Index Maturity:
Fixed Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Rate Commencement Date, if any:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Interest Payment Date:
Designated LIBOR Page, if any:
Designated CMT Telerate Page, if any:
LIBOR Currency, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Initial Repayment Date:
If Renewable:
Renewal Date:
Final Maturity Date:
If Extendible:
Initial Maturity Date:
Final Maturity Date:
Date of Maturity:
Purchase Price: __ %
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
OID Terms:
Additional Terms:
Exceptions, if any, to Section 4(j) of the Distribution Agreement:
[The certificate referred to in Section 7(b) of the Distribution Agreement, the opinions referred to in Section 7(c) of the Distribution Agreement and the accountants' letter[s] referred to in Section 7(d) of the Distribution Agreement shall be delivered as a condition to settlement.]
[NAME OF AGENT]
By: _______________________________
Accepted:
THE BANK OF NEW YORK COMPANY, INC.
Pursuant to Section 5(c) of the Distribution Agreement, the Company's independent public accountants shall provide a comfort letter to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and any supplementary financial information and schedules examined by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act or the 1934 Act, as applicable, and the published rules and regulations thereunder; and they have made a review of the interim financial information of the Company and its subsidiaries for the periods specified in such letter in accordance with standards established by the American Institute of Certified Public Accountants;
(iii) On the basis of limited procedures, not constituting an audit, consisting of a limited review of the unaudited consolidated financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters, a review of interim financial information in accordance with standards established by the American Institute of Certified Public Accountants in SAS No. 71, Interim Financial Information ("SAS 71") and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(A) the unaudited information with respect to the annual consolidated results of operations and financial position for fiscal years that was included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year does not agree with the corresponding amounts in the audited consolidated financial statements for such fiscal years that was included or incorporated by reference in the Company's Annual Reports on Form 10-K for the last three fiscal years;
(B) the unaudited information with respect to the annual consolidated results of operations and financial position for such fiscal years that was included or incorporated by reference in the Prospectus does not agree with the corresponding amounts in the audited consolidated financial statements for such fiscal years that were included or incorporated by reference in the Company's Annual Reports on Form 10-K for the last three years;
(C) the unaudited consolidated financial statements included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the 1934 Act and published rules and regulations thereunder or are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited financial data included in the Prospectus as at any time, or for any period ending, after the end of the latest interim period covered by a Quarterly Report on Form 10-Q of the Company do not agree with the corresponding amounts in the unaudited consolidated financial statements from which such data are derived;
(E) the unaudited financial data included in the Prospectus do not agree with the corresponding amounts in the unaudited financial statements that were not included in the Prospectus but from which were derived such financial data;
(F) as of a specified date not more than five days prior to the date of such letter, there have not been any changes in the consolidated capital stock (other than issuances of capital stock upon exercise of options and stock appreciation rights, upon earn-outs of performance shares and upon conversions of convertible securities, in each case which were outstanding on the date of the latest audited financial statements included or incorporated by reference in the Prospectus) or any increase in the consolidated long-term debt of the Company and its subsidiaries, or any decreases in consolidated shareholders' equity or allowance for loan losses, in each case as compared with amounts shown in the latest consolidated statement of condition included or incorporated by reference in the Prospectus except in each case for changes that the Prospectus discloses have occurred or may occur or that are described in such letter; and
(G) for the period from the date of the latest complete consolidated financial statements included or incorporated by reference in the Prospectus to the specified date referred to in (F) above there were any decreases in consolidated net interest income, net interest income after provision for loan losses, or the total or fully-diluted per share amounts of net income of the Company, in each case as compared with the comparable period of the preceding year, except in each case for decreases that the Prospectus discloses have occurred or may occur or that are described in such letter;
(iv) In addition to the examination referred to in their reports included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books inquiries and other procedures referred to in subparagraph (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information specified by the Agent that are derived from the general accounting records of the Company and its subsidiaries and that appear in the Prospectus (excluding documents incorporated by reference), in exhibits to the Registration Statement specified by the Agent or in documents incorporated by reference in the Prospectus specified by the Agent, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement.
EXHIBIT 4.1
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
IF THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE FOR THE DEPOSITORY TRUST COMPANY, THEN THE FOLLOWING LEGEND SHALL APPLY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "ORIGINAL YIELD TO MATURITY" AND "INITIAL SHORT ACCRUAL PERIOD OID" (COMPUTED UNDER THE EXACT METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT RULES.
CUSIP:
REGISTERED REGISTERED
No. FXR $
|
THE BANK OF NEW YORK COMPANY, INC.
[SENIOR MEDIUM-TERM NOTE SERIES E]
[SENIOR SUBORDINATED MEDIUM-TERM NOTE SERIES F]
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE: REDEMPTION COMMENCEMENT INITIAL REDEMPTION ANNUAL REDEMPTION DATE: PERCENTAGE: PERCENTAGE REDUCTION: |
HOLDER'S OPTIONAL
REPAYMENT DATE(S): TOTAL AMOUNT OF OID: ORIGINAL YIELD TO
MATURITY:
INITIAL SHORT ACCRUAL ISSUE PRICE: OTHER PROVISIONS:
|
PERIOD OID:
[_] IF BOX IS CHECKED, THE NOTE IS AN AMORTIZING NOTE AND INFORMATION
REGARDING AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS PROVIDED IN AN ADDENDUM.
[_] IF BOX IS CHECKED, THE NOTE IS A RENEWABLE NOTE OR AN EXTENDIBLE NOTE
AND INFORMATION REGARDING RENEWAL DATE, NEW MATURITY DATE, FINAL MATURITY DATE OR EXTENSION PERIOD, AS APPLICABLE, AND ANY OTHER APPROPRIATE INFORMATION IS PROVIDED IN AN ADDENDUM.
The Bank of New York Company, Inc., a New York corporation (the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of _____________________________________ on the Stated Maturity Date specified above (except to the extent redeemed or repaid prior to the Stated Maturity Date), and to pay interest thereon at the Interest Rate per annum specified above, until the principal hereof is paid or duly made available for payment, on the _____________ day of each __________ and __________ (each an "Interest Payment Date") in each year commencing on the first Interest Payment Date next succeeding the Original Issue Date specified above, unless the Original Issue Date occurs between a Regular Record Date, as defined below, and the next succeeding Interest Payment Date or on an Interest Payment Date, in which case commencing on the second Interest Payment Date succeeding the Original Issue Date, to the registered holder of this Note on the Regular Record Date with respect to such second Interest Payment Date, and on the Stated Maturity Date (or any Redemption Date as defined below or any Holder's Optional Repayment Date with respect to which such option has been exercised, each such Stated Maturity Date, Redemption Date and Holder's Optional Repayment Date being herein referred to as a "Maturity Date" with respect to the principal payable on such date). Interest on this Note will accrue from the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from the Original Issue Date specified above until the principal hereof has been paid or duly made available for payment. If the Maturity Date or an Interest Payment Date falls on a day which is not a Business Day as defined below, principal, premium, if any, or interest payable with respect to such Maturity Date or Interest Payment Date will be paid on the next succeeding Business Day with the same force and effect as if made on such Maturity Date or Interest Payment Date, as the case may be, and no interest on such
payment shall accrue for the period from and after such Maturity Date or Interest Payment Date, as the case may be. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the fifteenth calendar day (whether or not a Business Day) next preceding such Interest Payment Date; provided, however, that interest payable at Maturity will be payable to the Person to whom the principal hereof shall be payable. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee (referred to below), notice whereof shall be given to the Holder of this Note not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner, all as more fully provided in the Indenture.
As used herein, "Business Day" means any day other than a Saturday, Sunday, legal holiday or other day on which banking institutions in The City of New York are authorized or required by law, regulation or executive order to close.
Payment of the principal of, premium, if any, and interest due on this Note will be made in immediately available funds at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest on any Interest Payment Date other than the Maturity Date may be made at the option of the Company by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. A Holder of not less than $10,000,000 aggregate principal amount of the Notes having the same Interest Payment Dates may by written notice to the Paying and Authenticating Agent (referred to below) at its principal corporate trust office in The City of New York (or at such other address as the Company shall give notice in writing) on or before the Regular Record Date preceding an Interest Payment Date, arrange to have the interest payable on all Notes held by such Holder on such Interest Payment Date, and all subsequent Interest Payment Dates until written notice to the contrary is given to the Paying and Authenticating Agent, made by wire transfer of immediately available funds to a designated account maintained at a bank in The City of New York (or other bank consented to by the Company) as the holder of such Notes shall have designated; provided that such bank has appropriate facilities therefor.
[Insert for Senior Subordinated Medium-Term Note] This Note is one of a duly authorized series of securities of the Company (hereinafter called the "Securities") issued and to be issued in one or more series under an Indenture dated as of October 1, 1993
(herein called the "Indenture") between the Company and J.P. Morgan Trust Company, as successor Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Senior Subordinated Medium-Term Notes Series F (the "Notes") and of the terms upon which the Notes are, and are to be, authenticated and delivered. The Notes are limited in aggregate principal amount of $1,000,000,000. The Bank of New York, acting through its corporate trust offices in The City of New York is the initial paying agent for the payment of interest and principal of the Notes (the "Paying Agent"); and The Bank of New York acting through its corporate trust offices in The City of New York is the authenticating agent for the Notes (the "Paying and Authenticating Agent"). The Notes may bear different Original Issue Dates, mature at different times, bear interest at different rates and vary in such other ways as are provided in the Indenture.
[Insert for Senior Medium-Term Notes] This Note is one of a duly authorized series of securities of the Company (hereinafter called the "Securities") issued and to be issued in one or more series under an Indenture dated as of July 18, 1991 (herein called the "Indenture") between the Company and Deutsche Bank Trust Company Americas, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Senior Medium-Term Notes Series E (the "Notes") and of the terms upon which the Notes are, and are to be, authenticated and delivered. The Notes are limited in aggregate principal amount of $1,000,000,000. The Bank of New York, acting through its corporate trust offices in The City of New York is the initial paying agent for the payment of interest and principal of the Notes (the "Paying Agent"); and The Bank of New York acting through its corporate trust offices in The City of New York is the authenticating agent for the Notes (the "Paying and Authenticating Agent"). The Notes may bear different Original Issue Dates, mature at different times, bear interest at different rates and vary in such other ways as are provided in the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder on any Holder's Optional Repayment Date(s), if any, indicated above. If no Holder's Optional Repayment Dates are set forth above, this Note may not be so repaid at the option of the Holder hereof prior to the Stated Maturity Date. On any Holder's Optional Repayment Date this Note shall be repayable in whole or in part in increments of [$1,000] [Insert other minimum denomination] (provided that any remaining principal hereof shall be at least [$1,000] [Insert such other minimum denomination]) at the option of the Holder hereof at a repayment price equal to 100% of the principal amount to be repaid, together with interest thereon
payable to the date of repayment. For this Note to be repaid in whole or in part at the option of the Holder hereof, this Note must be received, with the form entitled "Option to Elect Repayment" below duly completed, by the Paying and Authenticating Agent at the principal corporate trust office of The Bank of New York in The City of New York, or such other address which the Company shall from time to time notify the Holders of the Notes, not less than 30 nor more than 60 days prior to the Holders Optional Repayment Date. Exercise of such repayment option by the Holder hereof shall be irrevocable.
This Note may be redeemed at the option of the Company on any date on and after the Redemption Commencement Date, if any, specified above (the "Redemption Date"). If no Initial Redemption Date is set forth above, this Note may not be redeemed at the option of the Company prior to the Stated Maturity Date. On and after the Initial Redemption Date, if any, this Note may be redeemed at any time in whole or from time to time in part in increments of [$1,000] [Insert other minimum denomination] (provided that any remaining principal hereof shall be at least [$1,000] [Insert other minimum denomination]) at the option of the Company at the applicable Redemption Price (as defined below) together with interest thereon payable to the Redemption Date, on notice given to the Holder not less than 30 nor more than 60 days prior to the Redemption Date. In the event of redemption of this Note in part only, a new Note for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the surrender hereof.
Notices to the Holders of the Notes with respect to redemption as provided above will be mailed first class mail, postage prepaid, to the Holders' addresses listed in the Security Register maintained by the security registrar not less than 30 nor more than 60 days prior to the Redemption Date.
If this Note is redeemable at the option of the Company, the "Redemption Price" shall initially be the Initial Redemption Percentage specified above, of the principal amount of this Note to be redeemed and shall decline at each anniversary of the Redemption Commencement Date by the Annual Redemption Percentage Reduction, if any, specified above, of the principal amount to be redeemed until the Redemption Price is 100% of such principal amount.
The "Amortized Face Amount" of an Original Issue Discount Note shall be the amount equal to (i) the Issue Price set forth above plus (ii) that portion of the difference between the Issue Price and the principal amount of such Note that has accrued at the Original Yield to Maturity (computed in accordance with generally accepted United States bond yield computation principles) by the date of redemption or repayment, as calculated by the Calculation Agent, but in no event shall the Amortized Face Amount of an Original Issue Discount Note exceed its principal amount.
Interest payments on this Note will include interest accrued to but excluding the Interest Payment Date or the date of Maturity, as the case may be. Interest payments for this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. [Insert if this Note is a Senior Subordinated Medium-Term Note -- Payment of the principal of the Notes may be accelerated only in the case of certain events involving the bankruptcy, insolvency or reorganization of the Company. There is no right of acceleration of payment of the Senior Subordinated Medium-Term Notes in the case of a default in the performance of any covenant of the Company, including payment of principal or interest.]
[Insert if this Note is a Senior Subordinated Medium-Term Note -- The indebtedness evidenced by the Notes is, to the extent provided in the Indenture, subordinated and subject in right of the payment in full of the principal of (and premium, if any) and the interest on all Senior Indebtedness, as defined in the Indenture, and this security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Note, by accepting the same, agrees that each holder of Senior Indebtedness, whether created or acquired before or after the issuance of the Notes, shall be deemed conclusively to have relied on such provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness. The Indenture also provides that if, upon the occurrence of certain events of bankruptcy or insolvency relating to the Company, there remains, after giving effect to such subordination provisions, any amount of cash, property or securities available for payment or distribution in respect of Securities of this series (as defined in the Indenture, "Excess Proceeds"), and if, at such time, any Entitled Person (as defined in the Indenture) has not received payment in full of all amounts due or to become due on or in respect of Other Financial Obligations (as defined in the Indenture), then such Excess Proceeds shall first be applied to pay or provide for the payment in full of such Other Financial Obligations before any payment or distribution may be made in respect of Notes. This Note is also issued subject to the provisions of the Indenture regarding payments to Entitled Persons in respect of Other Financial Obligations. Each Holder of this Note, by accepting the same, agrees to be bound by the provisions of the Indenture described herein and authorizes and directs the Trustee to take such action on his behalf as may be necessary or appropriate to acknowledge or effectuate the subordination of this Note and payment of Excess Proceeds as provided in the Indenture and appoints the Trustee his attorney-in-fact for any and all such purposes.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of each series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Note, at the times, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations therein set forth, the transfer of this Note may be registered on the Security Register of the Company upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder hereof or by such Holder's attorney duly authorized in writing and thereupon one or more new Notes and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum denominations of [$1,000] [Insert other minimum denomination] or any amount in excess thereof which is an integral multiple of [$1,000] [Insert other minimum denomination] and, unless otherwise specified on the face hereof, shall be denominated in U.S. dollars. As provided in the Indenture, and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of (and premium, if any) or the interest on this Note, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
The Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such State.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by or on behalf of the Trustee under the Indenture by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[This space left blank intentionally]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or in facsimile, and its corporate seal to be imprinted hereon.
Dated:
THE BANK OF NEW YORK COMPANY, INC.
By: _____________________________
[SEAL]
Attest:
CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
[Insert for Senior Medium-Term Notes] Deutsche Bank Trust Company
Americas, Trustee
[Insert for Senior Subordinated Medium-Term Notes] J.P. Morgan Trust
Company, as Trustee
By: The Bank of New York
As Authenticating Agent
By:________________________
Authorized Officer
OPTION TO ELECT REPAYMENT
For this Note to be repaid, this Note must be received at the corporate trust office of The Bank of New York, in The City of New York, or at such other place or places which the Company shall from time to time notify the Holder of this Note, not less than 30 nor more than 60 days prior to the Holder's Optional Repayment Date, if any, specified above, with this "Option to Elect Repayment" form duly completed. Exercise of such repayment option by the holder hereof shall be irrevocable. In the event of repayment of this Note in part only, a new Note or Notes for the amount of the unpaid portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
If less than the entire principal amount of this Note is to be repaid, specify the portion hereof (which shall be in increments of [$1,000][Insert other minimum denomination]) which the Holder elects to have repaid and specify the denomination or denominations (each of which shall be [$1,000] [Insert such other minimum denomination] or an integral multiple of [$1,000] [Insert such other minimum denomination] in excess of [$1,000] [Insert such other minimum denomination]) of the Notes to be issued to the Holder for the portion of this Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid).
$ ___________________ __________________________________
NOTICE: The signature on this
Date ________________ Option to Elect Repayment must
correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.
|
ABBREVIATIONS
The following abbreviations, when used in the inscription on this instrument, shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--.............Custodian.....................
(Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
Please Insert Social Security or Other
Identifying Number of Assignee:
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE:
the within Note and all rights thereunder, and does hereby irrevocably constitute and appoint _________________________________________________________ ___________________________________________________________________ attorney to transfer said Note on the books of the Company, with full power of substitution in the premises.
Dated: ___________________ _________________________
Signature Guaranteed:
_________________________
_________________________
|
NOTICE: The signature(s) to this assignment must correspond with the name as written upon the within instrument in every particular, without alteration or enlargement, or any change whatever.
SIGNATURE GUARANTEED:______________________________
NOTICE: The signature(s) must be guaranteed by an eligible guarantor institution
(e.g., banks, securities brokers or dealers, credit unions, national securities
exchanges and savings associations) which is a member of or participant in a
signature guarantee program recognized by the Securities registrar pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934.
EXHIBIT 4.2
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
IF THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE FOR THE DEPOSITORY TRUST COMPANY, THEN THE FOLLOWING LEGEND SHALL APPLY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "ORIGINAL YIELD TO MATURITY" AND "INITIAL SHORT ACCRUAL PERIOD OID" (COMPUTED UNDER THE EXACT METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT RULES.
CUSIP:
REGISTERED REGISTERED
No. FLR $
THE BANK OF NEW YORK COMPANY, INC.
[SENIOR MEDIUM-TERM NOTE SERIES E]
[SENIOR SUBORDINATED MEDIUM-TERM NOTE SERIES F]
(Floating Rate)
BASE RATE: ORIGINAL ISSUE STATED MATURITY DATE: ISSUE PRICE:
DATE: DATE:
------------- ---------------- --------------------- ------------------
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INDEX MATURITY: INITIAL INTEREST PERIOD: INTEREST PAYMENT
INTEREST RATE: DATES:
------------- ---------------- --------------------- ------------------
SPREAD: INITIAL INTEREST INTEREST RESET CALCULATION
RESET DATE: DATES: AGENT:
------------- ---------------- --------------------- ------------------
SPREAD REDEMPTION MAXIMUM INTEREST MINIMUM INTEREST
MULTIPLIER: COMMENCEMENT RATE: RATE:
DATE:
------------- ---------------- --------------------- ------------------
TAX INITIAL FIXED RATE FIXED INTEREST
REDEMPTION: REDEMPTION COMMENCEMENT RATE:
PERCENTAGE: DATE:
Yes
No
------------- ---------------- --------------------- ------------------
HOLDER'S INDEX ORIGINAL YIELD DESIGNATED LIBOR
OPTIONAL MATURITY: TO MATURITY: PAGE:
REPAYMENT
DATE(S):
------------- ---------------- --------------------- ------------------
INITIAL SHORT TOTAL AMOUNT DESIGNATED CMT DESIGNATED CMT
ACCRUAL PERIOD OF OID: MATURITY INDEX: TELERATE PAGE:
OID:
------------- ---------------- --------------------- ------------------
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OTHER
PROVISIONS:
INTEREST CALCULATION:
[ ] REGULAR FLOATING RATE NOTE
[ ] FLOATING RATE/FIXED RATE NOTE
[ ] INVERSE FLOATING RATE NOTE
[ ] IF BOX IS CHECKED, THIS NOTE IS AN AMORTIZING NOTE AND INFORMATION REGARDING AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS PROVIDED IN AN ADDENDUM.
[ ] IF BOX IS CHECKED, THIS NOTE IS A RENEWABLE NOTE OR AN EXTENDIBLE NOTE AND
INFORMATION REGARDING RENEWAL DATE, NEW MATURITY DATE, FINAL MATURITY DATE
AND EXTENSION PERIOD, AS APPLICABLE, AND ANY OTHER APPROPRIATE TERMS, IS
PROVIDED IN AN ADDENDUM.
The Bank of New York Company, Inc., a New York corporation (the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of__________________________________ on the Stated Maturity Date specified above (except to the extent redeemed or repaid prior to the Stated Maturity Date), and to pay interest thereon at a rate per annum equal to the Initial Interest Rate specified above until the Initial Interest Reset Date or Fixed Rate Commencement Date specified above, if any, and thereafter at a rate determined in accordance with the provisions set forth below, depending upon the Base Rate specified above, until the principal hereof is paid or duly made available for payment. The Company will pay interest on the Interest Payment Dates specified above, commencing with the first Interest Payment Date next succeeding the Original Issue Date specified above, and on the Stated Maturity Date (or any Redemption Date as defined below or any Holder's Optional Repayment Date specified above, if any, with respect to which such option has been exercised, each such Stated Maturity Date, Redemption Date and Holder's Optional Repayment Date being hereinafter referred to as a "Maturity Date" with respect to the principal repayable on such date); provided, however, that if the Original Issue Date occurs between a Regular Record Date, as defined below, and the next succeeding Interest Payment Date or on an Interest Payment Date, interest payments will commence on the second Interest Payment Date next succeeding the Original Issue Date, to the registered Holder of this Note on the Regular Record Date with respect to such second Interest Payment Date; and provided, further, that if an Interest Payment Date (other than an Interest Payment Date that occurs on any Maturity Date) would fall on a day that is not a Business Day, as defined below, such Interest Payment Date shall be the next day that is a Business Day, except in the case that the Base Rate is LIBOR, if such next Business Day falls in the next succeeding calendar month, such Interest Payment Date will be the next preceding day that is a Business Day. If any Maturity Date of this Note should fall on a day that is not a Business Day, the payment of interest, principal or premium, if any, due on such date shall be made on the next day that is a Business Day and no
additional interest on such amounts shall accrue from and after such Maturity Date. Interest payable on this Note on any Interest Payment Date will include interest accrued from the Original Issue Date, or the most recent date for which interest has been paid or duly provided for, to, but excluding, such Interest Payment Date or the Maturity Date, as the case may be; provided however that in the case of Notes that reset daily or weekly, interest payments on each Interest Payment Date will be the amount of interest accrued from but excluding the Regular Record Date through which interest has been paid or duly provided for (or from and including the Original Issue Date if no interest has been paid or duly provided for) to and including the Regular Record Date next preceding the applicable Interest Payment Date, except that the interest payment due on the Maturity Date will include interest accrued to but excluding such date. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the date 15 calendar days prior to an Interest Payment Date (whether or not a Business Day) (the "Regular Record Date"); provided, however, that interest payable at Maturity will be payable to the Person to whom the principal hereof shall be payable. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee (referred to below), notice whereof shall be given to the Holder of this Note not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner, all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest due on this Note will be made in immediately available funds at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest on any Interest Payment Date other than the Maturity Date may be made at the option of the Company by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. A Holder of not less than $10,000,000 aggregate principal amount of the Notes having the same Interest Payment Dates may by written notice to the Paying and Authenticating Agent (referred to below) at its principal corporate trust office in The City of New York (or at such other address as the Company shall give notice in writing) on or before the Regular Record Date preceding an Interest Payment Date, arrange to have the interest payable on all
Notes held by such Holder on such Interest Payment Date, and all subsequent Interest Payment Dates until written notice to the contrary is given to the Paying and Authenticating Agent, made by wire transfer of immediately available funds to a designated account maintained at a bank in The City of New York (or other bank consented to by the Company) as the Holder of such Notes shall have designated; provided that such bank has appropriate facilities therefor.
[Insert for Senior Subordinated Medium Term-Note Series F] This Note is one of a duly authorized issue of securities of the Company (hereinafter called the "Securities") issued and to be issued in one or more series under an Indenture dated as of October 1, 1993 (herein called the "Indenture") between the Company and J.P. Morgan Trust Company, as Successor Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Senior Subordinated Medium-Term Notes Series F (the "Notes") and of the terms upon which the Notes are, and are to be, authenticated and delivered. The Notes are limited in aggregate principal amount to $1,000,000,000. The Bank of New York, acting through its corporate trust offices in The City of New York is the initial paying agent for the payment of interest and principal of the Notes (the "Paying Agent"); and The Bank of New York is the authenticating agent for the Notes (the "Paying and Authenticating Agent"). The Notes may bear different Original Issue Dates, mature at different times, bear interest at different rates and vary in such other ways as are provided in the Indenture.
[Insert for Senior Medium Term Notes Series E] This Note is one of a duly authorized series of securities of the Company (hereinafter called the "Securities") issued and to be issued in one or more series under an Indenture dated as of July 18, 1991 (herein called the "Indenture") between the Company and Deutsche Bank Trust Company Americas, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Senior Medium-Term Notes Series E (the "Notes") and of the terms upon which the Notes are, and are to be, authenticated and delivered. The Notes are limited in aggregate principal amount to $1,000,000,000. The Bank of New York, acting through its corporate trust offices in The City of New York is the initial paying agent for the payment of interest and principal of the Senior Medium-Term Notes (the "Paying Agent"); and The Bank of New York is the authenticating agent for
the Notes (the "Paying and Authenticating Agent"). The Notes may bear different Original Issue Dates, mature at different times, bear interest at different rates and vary in such other ways as are provided in the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder on the Holder's Optional Repayment Date(s), if any, indicated above. If no Holder's Optional Repayment Dates are set forth above, this Note may not be so repaid at the option of the Holder hereof prior to the Stated Maturity Date. On any Holder's Optional Repayment Date, this Note shall be repayable in whole or in part in increments of [$1,000] [Insert other minimum denomination] (provided that any remaining principal hereof shall be at least [$1,000] [Insert such other minimum denomination] ) at the option of the Holder hereof at a repayment price equal to 100% of the principal amount to be repaid, together with interest thereon payable to the date of repayment. For this Note to be repaid in whole or in part at the option of the Holder hereof, this Note must be received, with the form entitled "Option to Elect Repayment" below duly completed, by the Paying and Authenticating Agent at the principal corporate trust office of The Bank of New York in The City of New York or such other address which the Company shall from time to time notify the Holders of the Notes, not less than 30 nor more than 60 days prior to a Holder's Optional Repayment Date. Exercise of such repayment option by the Holder hereof shall be irrevocable.
This Note may be redeemed at the option of the Company on any date on and after the Initial Redemption Date, if any, specified above (the "Redemption Date"). If no Initial Redemption Date is set forth above, this Note may not be redeemed at the option of the Company prior to the Stated Maturity Date. On and after the Initial Redemption Date, if any, this Note may be redeemed at any time in whole or from time to time in part in increments of [$1,000] [Insert other minimum denomination] (provided that any remaining principal hereof shall be at least [$1,000] [Insert such other minimum denomination]) at the option of the Company at the applicable Redemption Price (as defined below) together with interest thereon payable to the Redemption Date, on notice given to the Holder not less than 30 nor more than 60 days prior to the Redemption Date. In the event of redemption of this Note in part only, a new Note for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the surrender hereof.
Notices to the Holders of the Notes with respect to redemption as provided above will be mailed first class mail, postage prepaid, to the Holders' addresses listed in the register
maintained by the Registrar not less than 30 nor more than 60 days prior to the Redemption Date.
If this Note is redeemable at the option of the Company, the "Redemption Price" shall initially be the Initial Redemption Percentage specified above of the principal amount of this Note to be redeemed and shall decline at each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction, if any, specified above, of the principal amount to be redeemed until the Redemption Price is 100% of such principal amount.
Accrued interest hereon shall be an amount calculated by multiplying the principal amount hereof by an accrued interest factor. Such accrued interest factor shall be computed by adding the interest factor calculated for each day from the Original Issue Date or from but excluding the last date for which interest shall have been paid, as the case may be, to the date for which accrued interest is being calculated. The interest factor for each such day shall be computed by dividing the interest rate applicable to such day by 360 or, in the case of Notes having the Treasury Rate or CMT Rate as their Base Rate, by the actual number of days in the year.
Except as described below, this Note will bear interest at the rate determined by reference to the Base Rate specified above (i) plus or minus the Spread, if any, specified above and/or (ii) multiplied by the Spread Multiplier, if any, specified above. The interest rate in effect on each day shall be (a) if such day is an Interest Reset Date specified above, the interest rate with respect to the Interest Determination Date (as defined below) pertaining to such Interest Rate Reset Date or (b) if such day is not an Interest Reset Date, the interest rate with respect to the Interest Determination Date pertaining to the next preceding Interest Reset Date, subject to the Maximum or Minimum Interest Rate specified above, if any, provided that the interest rate in effect from the Original Issue Date to the Initial Interest Reset Date shall be the Initial Interest Rate; provided further that the Notes will not reset after the Fixed Rate Commencement Date, if any. If any Interest Reset Date would otherwise be a day that is not a Business Day, such Interest Reset Date shall be postponed to the next day that is a Business Day, except that if the Base Rate specified above is LIBOR, if such Business Day is in the next succeeding calendar month, such Interest Rate Reset Date shall be the immediately preceding Business Day. If a treasury bill auction will be held on a day that would otherwise be an Interest Reset Date with respect to the Treasury Rate, then such Interest Reset Date shall be the Business Day following such auction date.
The Interest Determination Date with respect to the Federal Funds Rate and the Prime Rate will be the Business Day preceding
the Interest Reset Date. The Interest Determination Date with respect to the Certificate of Deposit Rate (the "CD Rate"), the Commercial Paper Rate, and the CMT Rate will be the second Business Day preceding the Interest Reset Date. The Interest Determination Date with respect to LIBOR shall be the second London Banking Day (as defined below) preceding an Interest Reset Date. The Interest Determination Date with respect to the Eleventh District Cost of Funds Rate shall be the last Business Day of the month immediately preceding the applicable Interest Reset Date in which the Federal Home Loan Bank of San Francisco publishes the Index (as hereinafter defined). The Interest Determination Date with respect to the Treasury Rate shall be the day of the week in which such Interest Rate Reset Date falls on which Treasury bills of the Index Maturity specified above normally would be auctioned; provided, however, that if as a result of a legal holiday an auction is held on the Friday of the week preceding the Interest Rate Reset Date, the related Interest Determination Date shall be such preceding Friday. The Interest Determination Date with respect to a Note the interest rate of which is determined by two or more Interest Rate Bases shall be the second Business Day next preceding the applicable Interest Reset Date on which each Base Rate is determinable. Each Base Rate shall be determined as of such date, and the applicable interest rate will take effect on the applicable Interest Reset Date.
The "Calculation Date" pertaining to any Interest Determination Date shall
be the earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business Day and
(ii) the Business Day preceding the applicable Interest Payment Date or the date
of Maturity, as the case may be.
All percentages resulting from any calculation on the Notes will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point rounded upward, and all dollar amounts used in or resulting from such calculation on the Notes will be rounded to the nearest cent (with one-half cent being rounded upward).
As used herein, "Business Day" means (i) any day other than a Saturday, Sunday, legal holiday or other day on which banking institutions in The City of New York are authorized or required by law, regulation or executive order to close; provided that in the case where the Base Rate is LIBOR, such day is also a London Banking Day. "London Banking Day" means a day on which dealings in the applicable LIBOR currency are transacted in the London interbank market. For notes having a specified currency other than U.S. dollars only (other than Notes denominated in EUROs), any day that, in the Principal Financial Center (as defined below)
of the country of the specified currency, is not a day on which banking institutions generally are authorized or obligated by law to close; and for notes denominated in EUROs, a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System is open.
The interest rate that will become effective on each subsequent Interest Reset Date will be determined by the Calculation Agent (calculated with reference to the Base Rate or Rates and the Spread and/or Spread Multiplier, if any) as follows (such determination, in the absence of manifest error, to be binding upon all parties).
Commercial Paper Rate
"Commercial Paper Rate" means:
(1) the Money Market Yield (as defined below) on the particular Interest Determination Date of the rate for commercial paper having the Index Maturity specified in the applicable pricing supplement as published in H.15(519) (as defined below) under the caption "Commercial Paper-Nonfinancial", or
(2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the Money Market Yield of the rate on the particular Interest Determination Date for commercial paper having the particular Index Maturity as published in H.15 Daily Update (as defined below), or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption "Commercial Paper-Nonfinancial", or
(3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on the particular
Interest Determination Date calculated by the Calculation Agent as the Money
Market Yield of the arithmetic mean of the offered rates at approximately 11:00
A.M., New York City time, on that Interest Determination Date of three leading
dealers of United States dollar commercial paper in The City of New York (which
may include the Agents or their affiliates) selected by the Calculation Agent
for commercial paper having the particular Index Maturity placed for industrial
issuers whose bond rating is "Aa", or the equivalent, from a nationally
recognized statistical rating organization, or
(4) if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (3), the Commercial Paper Rate in effect on the particular Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on a bank discount basis and expressed as a decimal, and "M" refers to the actual number of days in the applicable Interest Reset Period (the period between Interest Reset Dates).
"H.15(519)" means the weekly statistical release designated as H.15(519), or any successor publication, published by the Board of Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available through the world-wide-web site of the Board of Governors of the Federal Reserve System at http//federalreserve.gov/releases/h15/update, or any successor site or publication.
CD Rate
"CD Rate" means:
(1) the rate on the particular Interest Determination Date for negotiable United States dollar certificates of deposit having the Index Maturity specified in the applicable pricing supplement as published in H.15(519) under the caption "CDs (secondary market)", or
(2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date for negotiable United States dollar certificates of deposit of the particular Index Maturity as published in H.15 Daily Update, or other recognized electronic source used for the purpose of displaying the applicable rate, under the caption "CDs (secondary market)", or
(3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York City time, on that Interest Determination Date, of three leading nonbank dealers in negotiable United States dollar certificates of deposit in The City of New York (which may include the Agents or their affiliates) selected by the Calculation Agent for negotiable
United States dollar certificates of deposit of major United States money market banks for negotiable United States certificates of deposit with a remaining maturity closest to the particular Index Maturity in an amount that is representative for a single transaction in that market at that time, or
(4) if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (3), the CD Rate in effect on the particular Interest Determination Date.
LIBOR
"LIBOR" means:
(1) if "LIBOR Telerate" is specified in the applicable pricing supplement or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable pricing supplement as the method for calculating LIBOR, the rate for deposits in the LIBOR Currency having the Index Maturity specified in the applicable pricing supplement, commencing on the related Interest Reset Date, that appears on the LIBOR Page as of 11:00 A.M., London time, on the particular Interest Determination Date; or
(2) if "LIBOR Reuters" is specified in the applicable pricing supplement, the arithmetic mean of the offered rates, calculated by the Calculation Agent, or the offered rate, if the LIBOR Page by its terms provides only for a single rate, for deposits in the LIBOR Currency having the particular Index Maturity, commencing on the related Interest Reset Date, that appear or appears, as the case may be, on the LIBOR Page as of 11:00 A.M., London time, on the particular Interest Determination Date, or
(3) if fewer than two offered rates appear, or no rate appears, as the case may be, on the particular Interest Determination Date on the LIBOR Page as specified in clause (1) or (2), as applicable, the rate calculated by the Calculation Agent of at least two offered quotations obtained by the Calculation Agent after requesting the principal London offices of each of four major reference banks (which may include affiliates of the Agents), in the London interbank market to provide the Calculation Agent with its offered quotation for deposits in the LIBOR Currency for the period of the particular Index Maturity, commencing on the related Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on that Interest Determination Date and in a principal amount that is representative for a single transaction in the LIBOR Currency in that market at that time, or
(4) if fewer than two offered quotations referred to in
clause (3) are provided as requested, the rate calculated by the Calculation Agent as the arithmetic mean of the rates quoted at approximately 11:00 A.M., in the applicable Principal Financial Center (as defined below), on the particular Interest Determination Date by three major banks (which may include affiliates of the Agents), in that Principal Financial Center selected by the Calculation Agent for loans in the LIBOR Currency to leading European banks, having the particular Index Maturity and in a principal amount that is representative for a single transaction in the LIBOR Currency in that market at that time, or
(5) if the banks so selected by the Calculation Agent are not quoting as mentioned in clause (4), LIBOR in effect on the particular Interest Determination Date.
"LIBOR Currency" means the currency specified in the applicable pricing supplement as to which LIBOR shall be calculated or, if no currency is specified in the applicable pricing supplement, United States dollars.
"LIBOR Page" means either:
. if "LIBOR Reuters" is specified in the applicable pricing supplement, the
display on the Reuter Monitor Money Rates Service (or any successor service)
on the page specified in the applicable pricing supplement (or any other page
as may replace that page on that service) for the purpose of displaying the
London interbank rates of major banks for the LIBOR Currency; or
. if "LIBOR Telerate" is specified in the applicable pricing supplement or
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable
pricing supplement as the method for calculating LIBOR, the display on
Moneyline Telerate (or any successor service) on the page specified in the
applicable pricing supplement (or any other page as may replace such page on
such service) for the purpose of displaying the London interbank rates of
major banks for the LIBOR Currency.
"Principal Financial Center" means, as applicable:
. the capital city of the country issuing the Specified Currency; or
. the capital city of the country to which the LIBOR Currency relates;
provided, however, that with respect to United States dollars, Australian dollars, Canadian dollars, South African rand and Swiss francs, the "Principal Financial Center" shall be The City of New York, Sydney, Toronto, Johannesburg and Zurich, respectively.
Federal Funds Rate
"Federal Funds Rate" means:
(1) the rate on the particular Interest Determination Date for United States dollar federal funds as published in H.15(519) under the caption "Federal Funds (Effective)" and displayed on Moneyline Telerate (or any successor service) on page 120 (or any other page as may replace the specified page on that service) ("Telerate Page 120"), or
(2) if the rate referred to in clause (1) does not so appear on Telerate Page 120 or is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date for United States dollar federal funds as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption "Federal Funds (Effective)", or
(3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the rates for the last transaction in overnight United States dollar federal funds arranged by three leading brokers of United States dollar federal funds transactions in The City of New York (which may include the Agents or their affiliates), selected by the Calculation Agent prior to 9:00 A.M., New York City time, on that Interest Determination Date, or
(4) if the brokers so selected by the Calculation Agent are not quoting as mentioned in clause (3), the Federal Funds Rate in effect on the particular Interest Determination Date.
Prime Rate
"Prime Rate" means:
(1) the rate on the particular Interest Determination Date as published in H.15(519) under the caption "Bank Prime Loan", or
(2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption "Bank Prime Loan", or
(3) if the rate referred to in clause (2) is not so published by
3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters Screen US PRIME 1 Page (as defined below) as the applicable bank's prime rate or base lending rate as of 11:00 A.M., New York City time, on that Interest Determination Date, or
(4) if fewer than four rates referred to in clause (3) are so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
particular Interest Determination Date calculated by the Calculation Agent as
the arithmetic mean of the prime rates or base lending rates quoted on the basis
of the actual number of days in the year divided by a 360-day year as of the
close of business on that Interest Determination Date by three major banks
(which may include affiliates of the Agents) in The City of New York selected by
the Calculation Agent, or
(5) if the banks so selected by the Calculation Agent are not quoting as mentioned in clause (4), the Prime Rate in effect on the particular Interest Determination Date.
"Reuters Screen US PRIME 1 Page" means the display on the Reuters Monitor Money Rates Service (or any successor service) on the "US PRIME 1" page (or any other page as may replace that page on that service) for the purpose of displaying prime rates or base lending rates of major United States banks.
Treasury Rate
"Treasury Rate" means:
(1) the rate from the auction held on the Treasury Rate Note Interest Determination Date (the "Auction") of direct obligations of the United States ("Treasury Bills") having the Index Maturity specified in the applicable pricing supplement under the caption "INVESTMENT RATE" on the display on Moneyline Telerate (or any successor service) on page 56 (or any other page as may replace that page on that service) ("Telerate Page 56") or page 57 (or any other page as may replace that page on that service) ("Telerate Page 57"), or
(2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the Bond Equivalent Yield (as defined below) of the rate for the applicable Treasury bills as published in H.15 Daily Update, or another recognized electronic source used for the purpose of displaying the applicable rate, under the caption "U.S. Government Securities/Treasury Bills/Auction High", or
(3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the Bond Equivalent Yield of the auction rate of the applicable Treasury bills as announced by the United States Department of the Treasury, or
(4) if the rate referred to in clause (3) is not so announced by the United States Department of the Treasury, or if the Auction is not held, the Bond Equivalent Yield of the rate on the particular Interest Determination Date of the applicable Treasury bills as published in H.15(519) under the caption "U.S. Government Securities/Treasury Bills/Secondary Market", or
(5) if the rate referred to in clause (4) not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date of the applicable Treasury bills as published in H.15 Daily Update, or another recognized electronic source used for the purpose of displaying the applicable rate, under the caption "U.S. Government Securities/Treasury Bills/Secondary Market", or
(6) if the rate referred to in clause (5) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 P.M., New York City time, on that Interest Determination Date, of three primary United States government securities dealers (which may include the Agents or their affiliates) selected by the Calculation Agent, for the issue of Treasury bills with a remaining maturity closest to the Index Maturity specified in the applicable pricing supplement, or
(7) if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (6), the Treasury Rate in effect on the particular Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage) calculated in accordance with the following formula:
D x N
Bond Equivalent Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury bills quoted on a bank discount basis and expressed as a decimal, "N" refers to 365 or 366, as the case may be, and "M" refers to the actual number of days in the applicable Interest Reset Period.
CMT Rate
"CMT Rate" means:
(1) if CMT Telerate Page 7051 is specified in the applicable pricing supplement:
(a) the percentage equal to the yield for United States Treasury securities at "constant maturity" having the Index Maturity specified in the applicable pricing supplement as published in H.15(519) under the caption "Treasury Constant Maturities", as the yield is displayed on Moneyline Telerate (or any successor service) on page 7051 (or any other page as may replace the specified page on that service) ("Telerate Page 7051"), for the particular Interest Determination Date, or
(b) if the rate referred to in clause (a) does not so appear on Telerate Page 7051, the percentage equal to the yield for United States Treasury securities at "constant maturity" having the particular Index Maturity and for the particular Interest Determination Date as published in H.15(519) under the caption "Treasury Constant Maturities", or
(c) if the rate referred to in clause (b) does not so appear in H.15(519), the rate on the particular Interest Determination Date for the period of the particular Index Maturity as may then be published by either the Federal Reserve System Board of Governors or the United States Department of the Treasury that the Calculation Agent determines to be comparable to the rate which would otherwise have been published in H.15(519), or
(d) if the rate referred to in clause (c) is not so published, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices at approximately 3:30 P.M., New York City time, on that Interest Determination Date of three leading primary United States government securities dealers in The City of New York (which may include the Agents or their affiliates) (each, a "Reference Dealer"), selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation, or, in the event of equality, one of the highest, and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity equal to the particular Index Maturity, a remaining term to maturity no more than 1 year shorter than that Index Maturity and in a principal amount of at least $100,000,000, or
(e) if fewer than five but more than two of the prices referred to in clause (d) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations shall be eliminated, or
(f) if fewer than three prices referred to in clause (d) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices as of approximately 3:30 P.M., New York City time, on that Interest Determination Date of three Reference Dealers selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation or, in the event of equality, one of the highest and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity greater than the particular Index Maturity, a remaining term to maturity closest to that Index Maturity and in a principal amount of at least $100,000,000, or
(g) if fewer than five but more than two prices referred to in clause (f) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations will be eliminated, or
(h) if fewer than three prices referred to in clause (f) are provided as requested, the CMT Rate in effect on the particular Interest Determination Date.
(2) if CMT Telerate Page 7052 is specified in the applicable pricing supplement:
(a) the percentage equal to the one-week or one-month, as specified in the applicable pricing supplement, average yield for United States Treasury securities at "constant maturity" having the Index Maturity specified in the applicable pricing supplement as published in H.15(519) opposite the caption "Treasury Constant Maturities", as the yield is displayed on Moneyline Telerate (or any successor service) (on page 7052 or any other page as may replace the specified page on that service) ("Telerate Page 7052"), for the week or month, as applicable, ended immediately preceding the week or month, as applicable, in which the particular Interest Determination Date falls, or
(b) if the rate referred to in clause (a) does not so appear on Telerate Page 7052, the percentage equal to the one-week or one-month, as specified in the applicable pricing supplement, average yield for United States Treasury securities at "constant maturity" having the particular Index Maturity and for the week or month, as applicable, preceding the particular Interest Determination Date as published in H.15(519) opposite the caption "Treasury Constant Maturities," or
(c) if the rate referred to in clause (b) does not so appear in H.15(519), the one-week or one-month, as specified in the applicable pricing supplement, average yield for United States Treasury securities at "constant maturity" having the particular Index Maturity as otherwise announced by the Federal Reserve Bank of New York for the week or month, as applicable, ended immediately preceding the week or month, as applicable, in which the particular Interest Determination Date falls, or
(d) if the rate referred to in clause (c) is not so published, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices at approximately 3:30 P.M., New York City time, on that Interest Determination Date of three Reference Dealers selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation, or, in the event of equality, one of the highest, and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity equal to the particular Index Maturity, a remaining term to maturity no more than 1 year shorter than that Index Maturity and in a principal amount of at least $100,000,000, or
(e) if fewer than five but more than two of the prices referred to in clause (d) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations shall be eliminated, or
(f) if fewer than three prices referred to in clause (d) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices as of approximately 3:30 P.M., New York City time, on that Interest Determination Date of
three Reference Dealers selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation or, in the event of equality, one of the highest and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity greater than the particular Index Maturity, a remaining term to maturity closest to that Index Maturity and in a principal amount of at least $100,000,000, or
(g) if fewer than five but more than two prices referred to in clause (f) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest or the lowest of the quotations will be eliminated, or
(h) if fewer than three prices referred to in clause (f) are provided as requested, the CMT Rate in effect on that Interest Determination Date.
If two United States Treasury securities with an original maturity greater than the Index Maturity specified in the applicable pricing supplement have remaining terms to maturity equally close to the particular Index Maturity, the quotes for the United States Treasury security with the shorter original remaining term to maturity will be used.
Eleventh District Cost of Funds Rate
"Eleventh District Cost of Funds Rate" means:
(1) the rate equal to the monthly weighted average cost of funds for the calendar month immediately preceding the month in which the particular Interest Determination Date falls as set forth under the caption "11th District" on the display on Moneyline Telerate (or any successor service) on page 7058 (or any other page as may replace the specified page on that service) ("Telerate Page 7058") as of 11:00 A.M., San Francisco time, on that Interest Determination Date, or
(2) if the rate referred to in clause (1) does not so appear on Telerate Page 7058, the monthly weighted average cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank District that was most recently announced (the "Index") by the Federal Home Loan Bank of San Francisco as the cost of funds for the calendar month immediately preceding that Interest Determination Date, or
(3) if the Federal Home Loan Bank of San Francisco fails to announce the Index on or prior to the particular Interest Determination Date for the calendar month immediately preceding that Interest Determination Date, the Eleventh District Cost of Funds Rate in effect on the particular Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any. The Calculation Agent shall calculate the interest rate hereon in accordance with the foregoing on or before each Calculation Date. The interest rate on this Note will in no event be higher than the maximum rate permitted by New York law, as the same may be modified by United States law of general application.
At the request of the Holder hereof, the Calculation Agent will provide to the Holder hereof the interest rate hereon then in effect and, if determined, the interest rate which will become effective on the next Interest Reset Date.
The "Amortized Face Amount" of an Original Issue Discount Note shall be the amount equal to (i) the Issue Price set forth above plus (ii) that portion of the difference between the Issue Price and the principal amount of such Note that has accrued at the Original Yield to Maturity (computed in accordance with generally accepted United States bond yield computation principles) by the date of redemption and repayment, as calculated by the Calculation Agent, but in no event shall the Amortized Face Amount of an Original Issue Discount Note exceed its principal amount.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. [Insert if this Note is a Senior Subordinated Medium-Term Note -- Payment of the principal of the Notes may be accelerated only in the case of certain events involving the bankruptcy, insolvency or reorganization of the Company. There is no right of acceleration of payment of the Notes in the case of a default in the performance of any covenant of the Company, including payment of principal or interest.]
[Insert if this Note is a Senior Subordinated Medium-Term Note -- The indebtedness evidenced by the Notes is, to the extent provided in the Indenture, subordinated and subject in right of the payment in full of the principal of (and premium, if any) and the interest on all Senior Indebtedness, as defined in the Indenture, and this security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Note,
by accepting the same, agrees that each Holder of Senior Indebtedness, whether created or acquired before or after the issuance of the Notes, shall be deemed conclusively to have relied on such provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness. The Indenture also provides that if, upon the occurrence of certain events of bankruptcy or insolvency relating to the Company, there remains, after giving effect to such subordination provisions, any amount of cash, property or securities available for payment or distribution in respect of Securities of this series (as defined in the Indenture, "Excess Proceeds"), and if, at such time, any Entitled Person (as defined in the Indenture) has not received payment in full of all amounts due or to become due on or in respect of Other Financial Obligations (as defined in the Indenture), then such Excess Proceeds shall first be applied to pay or provide for the payment in full of such Other Financial Obligations before any payment or distribution may be made in respect of Notes. This Note is also issued subject to the provisions of the Indenture regarding payments to Entitled Persons in respect of Other Financial Obligations. Each Holder of this Note, by accepting the same, agrees to be bound by the provisions of the Indenture described herein and authorizes and directs the Trustee to take such action on his behalf as may be necessary or appropriate to acknowledge or effectuate the subordination of this Note and payment of Excess Proceeds as provided in the Indenture and appoints the Trustee his attorney-in-fact for any and all such purposes.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of each series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Note, at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations therein set forth, the transfer of this Note may be registered on the Security Register of the Company upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder hereof or by such Holder's attorney duly authorized in writing and thereupon one or more new Notes and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum denominations of [$1,000] [Insert other minimum denomination] or any amount in excess thereof which is an integral multiple of [$1,000] [Insert other minimum denomination] and, unless otherwise specified on the face hereof, shall be denominated in U.S. dollars. As provided in the Indenture, and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of (and premium, if any) or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and released.
The Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such State.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Authentication Agent or the Trustee under the Indenture by the manual signature of one if its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[This space left blank intentionally]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or in facsimile, and a facsimile of its corporate seal to be imprinted hereon.
Dated:
THE BANK OF NEW YORK COMPANY, INC.
By: ______________________________
[SEAL]
Attest:
CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
[For Senior Medium-Term Note] Deutsche Bank Trust Company
Americas, as Trustee
[For Senior Subordinated Medium-Term Note] J. P. Morgan Trust
Company, as Trustee
By: The Bank of New York
As Authenticating Agent
By:_________________________
Authorized Signatory
OPTION TO ELECT REPAYMENT
For this Note to be repaid at the option of the Holder hereof, this Note must be received at the corporate trust office of The Bank of New York, in The City of New York or at such other place or places which the Company shall from time to time notify the Holder of this Note, not less than 30 nor more than 60 days prior to the Holder's Optional Repayment Date, if any, shown on the face of this Note, with this "Option to Elect Repayment" form duly completed. Exercise of such repayment option by the Holder hereof shall be irrevocable. In the event of repayment of this Note in part only, a new Note or Notes for the amount of the unpaid portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
If less than the entire principal amount of this Note is to be repaid, specify the portion hereof (which shall be in increments of [$1,000] [Insert other minimum denomination]) which the Holder elects to have repaid and specify the denomination or denominations (each of which shall be [$1,000] [Insert other minimum denomination] or an integral multiple of [$1,000] [Insert other minimum denomination] in excess of $25,000) of the Notes to be issued to the Holder for the portion of this Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid).
$ _____________________ _______________________________________
NOTICE: The signature on this
Date __________________ Option to Elect Repayment must
correspond with the name as written
upon this Note in every particular,
without alteration or enlargement
or any change whatever.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on this instrument, shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--
.............Custodian...........................
(Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
Please Insert Social Security or Other
Identifying Number of Assignee:
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE:
the within Note and all rights thereunder, and does hereby irrevocably constitute and appoint _________________________________________________________ ____________________________________________________________________ attorney to transfer said Note on the books of the Company, with full power of substitution in the premises.
Dated: _________________ _________________________
NOTICE: The signature(s) to this assignment must correspond with the name as written upon the within instrument in every particular, without alteration or enlargement, or any change whatever.
SIGNATURE GUARANTEED:______________________________
NOTICE: The signature(s) must be guaranteed by an eligible guarantor
institution (e.g., banks, securities brokers or dealers, credit unions, national
securities exchanges and savings associations) which is a member of or
participant in a signature guarantee program recognized by the Securities
registrar pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934
EXHIBIT 4.3
THE BANK OF NEW YORK COMPANY, INC.
Officers' Certificate Pursuant to
Sections 201 and 301 of the
Senior Subordinated Indenture
Pursuant to resolutions of the Board of Directors, dated May 14, 2002 (the "Resolutions"), of The Bank of New York Company, Inc. (the "Company"), and an Action, dated June 26, 2002 (the "Action"), of an Authorized Officer (as defined in the Resolutions) of the Company pursuant to the Resolutions and Sections 201 and 301 of the Senior Subordinated Indenture, dated as of October 1, 1993 (the "Senior Subordinated Indenture"), between the Company and J.P. Morgan Trust Company, as Successor Trustee (the "Trustee"), the undersigned certify that the terms of a series of Securities established pursuant to the Resolutions, the Action and Section 301 of the Senior Subordinated Indenture shall be as follows (capitalized terms not defined herein shall have the meanings assigned to them in the Senior Subordinated Indenture or the Prospectus, dated June 10, 2002, as supplemented by the Prospectus Supplement, dated June 26, 2002):
(1) The title of the Securities of such series is "Senior Subordinated Medium-Term Notes Series F" (the "Notes").
(2) The aggregate initial offering price of the Notes which may be authenticated and delivered under the Senior Subordinated Indenture shall be $1,000,000,000 (as such amount may be reduced by the aggregate initial offering price of Senior Notes issued under the Senior Indenture) subject to being increased in the future on the same terms and conditions as permitted under
Section 301 of the Senior Indenture (except for (a) Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 906 or 1107 of the Senior Subordinated Indenture and (b) any Notes which, pursuant to Section 303, are deemed never to have been delivered thereunder.
(3) The Notes shall mature, and the principal amount thereof shall be payable as set forth, from time to time, in the Global Note (as defined below) evidencing each issue of Notes.
(4) The rate at which each Note shall bear interest shall be as set forth, from time to time, in the Pricing Supplement or Terms Agreement applicable to each issue of Notes. The date from which each Note shall bear interest and the dates and basis upon which interest will be paid on each Note shall be as set forth, from time to time, in the Pricing Supplement or Terms Agreement applicable to each issue of Notes. Interest shall be payable to the person in whose name a Note (or any Predecessor Security, as defined in the Senior Subordinated Indenture) is registered at the close of business on the "Regular Record Date", as specified in the applicable Pricing Supplement or Terms Agreement.
(5) Whether the Notes may be redeemed by the Company prior to Maturity shall be set forth in the applicable Pricing Supplement or Terms Agreement.
(6) Whether the Notes will have the benefit of any sinking fund shall be set forth in the applicable Pricing Supplement or Terms Agreement.
(7) The Notes will be subject to Section 1402 and 1403 of the Senior Subordinated Indenture unless otherwise set forth in the Pricing Supplement or Terms Agreement applicable to each issue of Notes.
(8) The Notes shall be issued initially in the form of one or more permanent Global Notes (collectively, the "Global Note") and the Depositary for such Global Note shall initially be The Depository Trust Company (the "Depositary").
Except as otherwise set forth herein, in the Senior Subordinated Indenture or in the Global Note, owners of beneficial interests in the Note evidenced by the Global Note will not be entitled to any rights under the Senior Subordinated Indenture with respect to the Global Note, and the Depositary may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of the Global Note for all purposes whatsoever.
The Depositary shall be a clearing agency registered under the Exchange Act. Initially, the Global Note shall be issued to the Depositary and registered in the name of Cede & Co., as the nominee of the Depositary.
(9) The Company's obligations under the Notes shall rank pari passu in right of payment with other Subordinated Debt Securities and with the Existing Subordinated Indebtedness, subject to the obligations of the Holder of Notes to pay over any Excess Proceeds to Entitled Persons in respect of Other Financial Obligations as provided in the Senior Subordinated Indenture.
(10) The Notes will be substantially in the form of Annex A attached hereto, with such modifications thereto as may be approved by an Authorized Officer.
IN WITNESS WHEREOF, the undersigned, hereto duly authorized, have duly signed, and delivered or caused to be delivered to the Trustee under the Senior Subordinated Indenture, this Officers' Certificate.
Dated: June 26, 2002
/s/ Bruce Van Saun
By:
---------------------------------
Bruce Van Saun
Senior Executive Vice President
and Chief Financial Officer
/s/ J. Michael Shepherd
By:
---------------------------------
J. Michael Shepherd
Executive Vice President,
General Counsel and Secretary
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EXHIBIT 4.4
THE BANK OF NEW YORK COMPANY, INC.
Officers' Certificate Pursuant to
Sections 201 and 301 of the
Senior Indenture
Pursuant to resolutions of the Board of Directors, dated May 14, 2002 (the "Resolutions"), of The Bank of New York Company, Inc. (the "Company"), and an Action, dated June 26, 2002 (the "Action"), of an Authorized Officer (as defined in the Resolutions) of the Company pursuant to the Resolutions and Sections 201 and 301 of the Senior Indenture, dated as of July 18, 1991 (the "Senior Indenture"), between the Company and Deutsche Bank Trust Company Americas, as Trustee (the "Trustee"), the undersigned certify that the terms of a series of Securities established pursuant to the Resolutions, the Action and Section 301 of the Senior Indenture shall be as follows (capitalized terms not defined herein shall have the meanings assigned to them in the Senior Indenture or the Prospectus, dated June 10, 2002, as supplemented by the Prospectus Supplement, dated June 26, 2002):
(1) The title of the Securities of such series is "Senior Medium-Term Notes Series E" (the "Notes").
(2) The aggregate initial offering price of the Notes which may be authenticated and delivered under the Senior Indenture shall be $1,000,000,000 (as such amount may be reduced by the aggregate initial offering price of Senior Subordinated Notes issued under the Senior Subordinated Indenture) subject to being increased in the future on the same terms and conditions as permitted under Section 301 of the Senior Subordinated Indenture (except for (a) Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 304,
305, 306, 906 or 1107 of the Senior Indenture and (b) any Notes which, pursuant to Section 303, are deemed never to have been delivered thereunder.
(3) The Notes shall mature, and the principal amount thereof shall be payable as set forth, from time to time, in the Global Note (as defined below) evidencing each issue of Notes.
(4) The rate at which each Note shall bear interest shall be as set forth, from time to time, in the Pricing Supplement or Terms Agreement applicable to each issue of Notes. The date from which each Note shall bear interest and the dates and basis upon which interest will be paid on each Note shall be as set forth, from time to time, in the Pricing Supplement or Terms Agreement applicable to each issue of Notes. Interest shall be payable to the person in whose name a Note (or any Predecessor Security, as defined in the Senior Indenture) is registered at the close of business on the "Regular Record Date", as specified in the applicable Pricing Supplement or Terms Agreement.
(5) Whether the Notes may be redeemed by the Company prior to Maturity shall be set forth in the applicable Pricing Supplement or Terms Agreement.
(6) Whether the Notes will have the benefit of any sinking fund shall be set forth in the applicable Pricing Supplement or Terms Agreement.
(7) The Notes will be subject to Section 1302 and 1303 of the Senior Indenture unless otherwise set forth in the Pricing Supplement or Terms Agreement applicable to each issue of Notes.
(8) The Notes shall be issued initially in the form of one or more permanent Global Notes (collectively, the "Global Note") and the
Depositary for such Global Note shall initially be The Depository Trust Company (the "Depositary").
Except as otherwise set forth herein, in the Senior Indenture or in the Global Note, owners of beneficial interests in the Note evidenced by the Global Note will not be entitled to any rights under the Senior Indenture with respect to the Global Note, and the Depositary may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of the Global Note for all purposes whatsoever.
The Depositary shall be a clearing agency registered under the Exchange Act. Initially, the Global Note shall be issued to the Depositary and registered in the name of Cede & Co., as the nominee of the Depositary.
(9) The Notes will be substantially in the form of Annex A attached hereto, with such modifications thereto as may be approved by an Authorized Officer.
IN WITNESS WHEREOF, the undersigned, hereto duly authorized, have duly signed, and delivered or caused to be delivered to the Trustee under the Senior Indenture, this Officers' Certificate.
Dated: June 26, 2002
By: /s/ Bruce Van Saun
------------------------------
Bruce Van Saun
Senior Executive Vice President
and Chief Financial Officer
By: /s/ J. Michael Shepherd
------------------------------
J. Michael Shepherd
Executive Vice President,
General Counsel and Secretary
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EXHIBIT 5
THE BANK OF NEW YORK
ONE WALL STREET
NEW YORK, NEW YORK 10286
June 26, 2002
The Bank of New York Company, Inc.
One Wall Street,
New York, New York 10286.
Dear Sirs:
In connection with the registration under the Securities Act of 1933, as amended (the "Act") of up to $1,000,000,000 principal amount of Senior Medium-Term Notes Series E and Senior Subordinated Medium-Term Notes Series F (collectively, the "Securities") of The Bank of New York Company, Inc., a New York corporation (the "Company"), the undersigned, as your counsel, has examined such corporate records, certificates and other documents, and such questions of law, as I have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, I advise you that, in my opinion, when the Securities have been duly executed and authenticated in accordance with the Indentures relating to the Securities and issued and sold as contemplated in the registration statement (File Nos. 333-89586, 333-89586-01, 333-89586-02, 333-89586-03, 333-89586-04 ), the Securities will constitute valid and legally binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of New York, and I am expressing no opinion as to the effect of the laws of any other jurisdiction.
I have relied as to certain matters on information obtained from public officials, officers of the Company and other sources believed by me to be responsible, and I have assumed that each Indenture has been duly authorized, executed and delivered by the respective Trustee thereunder, an assumption which I have not independently verified.
I hereby consent to the filing of this opinion as an exhibit to the Company's Current Report on Form 8-K, dated June 26, 2002 which upon filing will be incorporated by
The Bank of New York Company, Inc.
June 26, 2002
reference in the Prospectus dated June 10, 2002 as supplemented by the Prospectus Supplement dated June 26, 2002 relating to the Securities and to the reference to me under the heading "Legal Matters" in the Prospectus Supplement. In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under section 7 of the Act.
Very truly yours,
/s/ Paul A. Immerman Paul A. Immerman Senior Counsel-The Bank of New York |