EXHIBIT 0
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guaranteed to the extent set forth in Guarantees by
THE BANK OF NEW YORK COMPANY, INC.
Underwriting Agreement Standard Provisions
(December 1997)
From time to time, BNY Capital III, BNY Capital IV or BNY Capital V,
each a statutory business trust formed under the laws of the State of Delaware
(each a "Trust" and collectively, the "Trusts"), and The Bank of New York
Company, Inc., a New York corporation (the "Company"), as depositor of each
Trust and as Guarantor, may enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, which shall provide that the Trust
identified in the applicable Pricing Agreement (such Trust being the "Designated
Trust" with respect to such Pricing Agreement) shall issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms constituting
the "Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred securities (the "Securities")
identified in Schedule I to the applicable Pricing Agreement (with respect to
such Pricing Agreement, the "Firm Designated Securities") representing undivided
beneficial interests in the assets of the Designated Trust. If specified in
such Pricing Agreement, the Designated Trust may grant to the Underwriters the
right to purchase at their election an additional number of Securities,
specified in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Designated Securities"). The Firm Designated Securities and any
Optional Designated Securities, if any, are collectively called the "Designated
Securities." The proceeds of the concurrent sales of the Designated Securities
to the public and of the common securities of the Designated Trust (the "Common
Securities") to the Company are to be invested in junior subordinated deferrable
interest debentures of the Company identified in the Pricing Agreement with
respect to such Designated Securities (with respect to such Pricing Agreement,
the "Subordinated Debentures"), to be issued pursuant to a junior subordinated
indenture dated as of December 25, 1996 between the Company and The First
National Bank of Chicago, as trustee (the "Indenture"). The Designated
Securities may be exchangeable into Subordinated Debentures as specified in
Schedule II to such Pricing Agreement. The Designated Securities will be
guaranteed by the Company to the extent set forth in the Pricing Agreement with
respect to such Designated Securities (with respect to such Pricing Agreement,
the "Guarantee").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the amended and restated trust agreement identified in such
Pricing Agreement (with respect to such Pricing Agreement, the "Trust
Agreement").
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. These Underwriting
Agreement Standard Provisions shall not be construed as an obligation of any
Trust to sell any of its preferred securities or as an obligation of any
underwriters to purchase any of such preferred securities. The obligation of
any Trust to issue and sell any of its preferred securities and the obligation
of any underwriters to purchase any of such preferred securities shall be
evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the maximum number of
Firm Designated Securities, the maximum number of Optional Designated
Securities, if any, the initial public offering price of such Firm and Optional
Designated Securities or the manner of determining such price, the terms of the
Designated Securities, including the terms on which and terms of the securities
into which the Designated Securities will be exchangeable, the purchase price to
the Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters, the number of such Designated Securities to be purchased by each
Underwriter and the commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such Firm
and Optional Designated Securities, if any, and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Trust Agreement
with respect thereto or the Registration Statement and Prospectus as amended or
supplemented) the terms of such Designated Securities. Any Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The standard provisions set forth herein will be incorporated by
reference in any Pricing Agreement. The obligations of the Underwriters under
each Pricing Agreement shall be several and not joint.
2. Each of the Designated Trust and the Company, jointly and
severally, represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form S-3 (File Nos. 333-40837 and 333-
15951-01 through 333-40837-03) (the "Initial Registration Statement") in
respect of the preferred securities of the Trusts, including the Designated
Securities, and the junior subordinated deferrable interest debentures and
guarantees of the Company, as guarantor, including the Subordinated
Debentures and the Guarantee, has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding exhibits
to such registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than the registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated
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by reference therein has heretofore been filed, or transmitted for filing,
with the Commission (other than prospectuses filed pursuant to Rule 424(b)
of the rules and regulations of the Commission under the Act, each in the
form heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act, is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, but excluding Form T-1, or such
part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
preferred securities of the Trusts and the junior subordinated deferrable
interest debentures and the guarantees of the Company related to such
preferred securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the date of
the relevant Pricing Agreement, is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may
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be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Designated Trust or the Company by
an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Designated Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Designated Trust or the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended
or supplemented relating to such Designated Securities or to that part of
the Registration Statement which shall constitute the Statement of
Eligibility under the Trust Indenture Act (Form T-1) of The First National
Bank of Chicago;
(d) Since the date of the latest audited financial statements included
in or incorporated by reference in the Registration Statement and the
Prospectus, there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
creditworthiness of the Company and its subsidiaries on a consolidated
basis otherwise than as set forth or contemplated in the Prospectus;
(e) Each of the Company and The Bank of New York (the "Bank") has been
duly organized and is validly existing as a corporation or banking
corporation, as the case may be, and is an existing corporation or banking
corporation, as the case may be, in good standing under the laws of the
State of New York;
(f) All of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and non-
assessable; and all of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued, are fully paid and non-
assessable (except as provided in Article III of the Banking Law of the
State of New York) and are owned by the Company, free and clear of all
liens, encumbrances, equities or claims;
(g) The Designated Trust has been duly organized and is validly
existing as a business trust in good standing under the laws of the State
of Delaware, with power
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and authority (trust and other) to own its property and conduct its
business as described in the Prospectus, and to enter into and perform its
obligations under this Agreement and the Designated Securities and to
consummate the transactions contemplated by the Pricing Agreement with
respect to such Designated Securities (including without limitation the
provisions hereof incorporated by reference therein); the Designated Trust
has no subsidiaries and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Designated Trust; the Designated
Trust has conducted and will conduct no business other than the
transactions contemplated by the Pricing Agreement (including without
limitation the provisions hereof incorporated by reference therein) and
described in the Prospectus as amended and supplemented with respect to the
Designated Securities; the Designated Trust is not a party to or bound by
any agreement or instrument other than the Pricing Agreement with respect
to such Designated Securities (including without limitation the provisions
hereof incorporated by reference therein), the Trust Agreement of the
Designated Trust and the agreements and instruments contemplated by such
Trust Agreement and described in the Prospectus as amended and supplemented
with respect to the Designated Securities; the Designated Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by the Pricing Agreement with respect to such Designated
Securities (including without limitation the provisions hereof incorporated
by reference therein) and the Trust Agreement of the Designated Trust and
described in the Prospectus as amended and supplemented with respect to
such Designated Securities; the Designated Trust is not a party to or
subject to any action, suit or proceeding of any nature; the Designated
Trust is not, and at the Time of Delivery will not be, classified as an
association taxable as a corporation for United States federal income tax
purposes;
(h) The Designated Securities have been duly authorized on behalf of
the Designated Trust by the Company, as depositor of the Designated Trust,
and, when the Firm Designated Securities are issued and delivered pursuant
to the Pricing Agreement (including without limitation the provisions
hereof incorporated by reference therein) with respect to such Designated
Securities and, in the case of any Optional Designated Securities, pursuant
to Over-allotment Options (as defined in Section 3 hereof) with respect to
such Designated Securities, such Designated Securities will have been duly
and validly issued and fully paid and non-assessable beneficial interests
in the Designated Trust entitled to the benefits provided by the Trust
Agreement, which will be substantially in the form filed as an exhibit to
the Registration Statement; and the preferred securities of the Designated
Trust conform to the description thereof contained in the Registration
Statement and the Designated Securities will conform to the description
thereof contained in the Prospectus as amended or supplemented with respect
to such Designated Securities;
(i) The holders of the Designated Securities (the "Securityholders")
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware; the issuance of the Designated
Securities is not subject to preemptive or similar rights;
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(j) The Common Securities of the Designated Trust have been duly authorized
on behalf of the Designated Trust by the Company, as depositor of the
Designated Trust, and upon delivery by the Designated Trust to the Company
against payment therefor as set forth in the Trust Agreement, will be duly
and validly issued and nonassessable beneficial interests in the Designated
Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Time of Delivery (as defined
in Section 4 hereof), all of the issued and outstanding Common Securities
of the Designated Trust will be directly owned by the Company free and
clear of liens, encumbrances, equities or claims;
(k) The Guarantee, the Trust Agreement, the Subordinated Debentures,
the Agreement as to Expenses and Liabilities and the Indenture (the
Guarantee, the Trust Agreement, the Subordinated Debentures, the Agreement
as to Expenses and Liabilities and the Indenture being collectively
referred to as the "Company Agreements") have each been duly authorized and
when validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee (as defined in the Guarantee), in the
case of the Trust Agreement, by the Issuer Trustees (as defined in the
Trust Agreement) and, in the case of the Indenture, by the Trustee named
therein (the "Debenture Trustee"), and, in the case of the Subordinated
Debentures, when validly issued by the Company and validly authenticated
and delivered by the Debenture Trustee, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; the Trust Agreement, the Indenture and the Guarantee
have each been duly qualified under the Trust Indenture Act; the
Subordinated Debentures are entitled to the benefits of the Indenture; and
the Company Agreements, which will be in substantially the form filed as
exhibits to the Registration Statement, will conform to the descriptions
thereof in the Prospectus as amended or supplemented with respect to the
Designated Securities to which they relate;
(l) The issue and sale of the Designated Securities and the compliance
by the Designated Trust with all of the provisions of the Designated
Securities, the Trust Agreement, the Pricing Agreement (including without
limitation the provisions hereof incorporated by reference therein) with
respect to such Designated Securities and the Over-allotment Option with
respect to any Optional Designated Securities, the purchase of the
Subordinated Debentures by the Designated Trust and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Designated Trust is
a party or by which the Designated Trust is bound or to which any of the
property or assets of the Designated Trust is subject, nor will such action
result in any violation of the provisions of the Trust Agreement or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Designated Trust or any of its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for
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the issue and sale of the Designated Securities and the Common Securities
by the Designated Trust, the purchase of the Subordinated Debentures by the
Designated Trust or the consummation by the Designated Trust of the
transactions contemplated by the Pricing Agreement (including without
limitation the provisions hereof incorporated by reference therein) with
respect to such Designated Securities or the Trust Agreement, except such
as have been, or will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(m) The issuance by the Company of the Guarantee, the compliance by
the Company with all of the provisions of the Pricing Agreement (including
without limitation the provisions hereof incorporated by reference therein)
with respect to such Designated Securities, the execution, delivery and
performance by the Company of the Company Agreements, and the consummation
of the transactions contemplated herein and therein will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
by-laws of the Company or the charter or by-laws of any of its subsidiaries
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue of
the Guarantee or the consummation by the Company of the transactions
contemplated by the Pricing Agreement (including without limitation the
provisions hereof incorporated by reference therein) with respect to such
Designated Securities or the Company Agreements except such as have been,
or will have been obtained prior to the Time of Delivery and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
(n) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting, the Company or
any of its subsidiaries (including the Designated Trust), which might
result in any material adverse change in the financial condition,
shareholders' equity or results of operations of the Company and its
subsidiaries (including the Designated Trust) considered as one enterprise;
(o) Neither the Designated Trust nor the Company is, nor after giving
effect to the offering and sale of the Designated Securities will either
be, an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended (the "Investment Company Act");
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(p) Deloitte & Touche LLP, who have certified the financial statements of
the Company and its subsidiaries included in or incorporated by reference
in the Prospectus, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder; and
(q) The Pricing Agreement with respect to the Designated Securities
(incorporating the provisions hereof) has been duly authorized, executed
and delivered by the Company and the Designated Trust.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Firm Designated Securities, the several Underwriters propose to offer the
Firm Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable
to any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities specified in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may be
exercised only by written notice from the Representatives to the Designated
Trust and the Company, given within the period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Designated Securities
to be purchased and the date on which such Optional Designated Securities are to
be delivered (the Second Time of Delivery as defined in Section 4 hereof), as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the Representatives, the
Company and the Designated Trust otherwise agree in writing, earlier than or
later than the respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which each
of the Company and the Designated Trust has been advised by the Representatives
have been attributed to such Underwriter, provided that, if each of the Company
and the Designated Trust has not been so advised, the number of Optional
Designated Securities to be so added shall be, in each case, that proportion of
Optional Designated Securities which the number of Firm Designated Securities to
be purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of Optional
Designated Securities which the Underwriters elect to purchase.
4. Certificates representing the Firm Designated Securities and the
Optional Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request
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upon at least forty-eight hours' prior notice to the Designated Trust, shall be
delivered by or on behalf of the Designated Trust to the Representatives for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer in immediately available
funds to the account of the Designated Trust specified in such Pricing
Agreement, (i) with respect to the Firm Designated Securities, all in the manner
and at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Designated
Trust may agree upon in writing, such time and date being herein called the
"First Time of Delivery" and (ii) with respect to the Optional Designated
Securities, if any, in the manner and at the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Designated Securities, or at
such other time and date as the Representatives and the Designated Securities
may agree upon in writing, such time and date, if not the First Time of
Delivery, herein called the "Second Time of Delivery". Each such time and date
for delivery is herein called a "Time of Delivery".
5. Each of the Designated Trust and the Company, jointly and severally,
agrees with each of the Underwriters of any Designated Securities:
(a) To file the Prospectus as amended or supplemented with respect to
the Designated Securities with the Commission; to make no further amendment
or any supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Designated Securities and prior to the Time of Delivery for such Designated
Securities which shall be reasonably disapproved by the Representatives for
such Designated Securities promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or supplement
after the Time of Delivery for such Designated Securities and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Designated Securities; to
advise the Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Designated
Securities, of the suspension of the qualification of such Designated
Securities or the Subordinated Debentures issuable upon termination of the
Designated Trust for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Designated Securities or suspending any such qualification, promptly to use
its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities or the Subordinated Debentures issuable upon termination of the
Designated Trust for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
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distribution of such Designated Securities, provided that in connection
therewith neither the Designated Trust nor the Company shall be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time prior to nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Designated
Securities or the Subordinated Debentures issuable upon termination of the
Designated Trust and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a Prospectus in connection with sales of
the Designated Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) In the case of the Company, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder, any
preferred securities in any of the Trusts, any other beneficial interests
in the assets of the Designated Trust or any other Trust, or any preferred
securities or any other securities of the Designated Trust or the Company,
as the case may be, that are substantially similar to such Designated
Securities (including any guarantee of such securities) or any securities
that are convertible into or exchangeable for, or that represent the right
to receive securities, preferred securities or any such substantially
similar securities of either the Designated Trust, any other Trust or the
Company that are subordinated to the Senior Debt (as defined in the
-10-
Indenture) of the Company in a manner substantially similar to the
subordination of the Subordinated Debentures without the prior written
consent of the Representatives;
(f) In the case of the Company, to issue the Guarantee concurrently
with the issue and sale of the Designated Securities as contemplated in the
Pricing Agreement with respect to the Designated Securities and in the
Prospectus Supplement as amended and supplemented with respect to the
Designated Securities;
(g) To furnish to the holders of the Designated Securities as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and cash flow
of the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail; and
(h) If the Company and the Designated Trust elect to rely upon Rule
462(b), the Company and the Designated Trust shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 P.M., Washington, D.C. time, on the date of the Pricing Agreement
with respect to the Designated Securities, and the Company and the
Designated Trust shall at the time of filing either pay to the Commission
the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Trusts' and the Company's counsel and accountants in
connection with the registration of the preferred securities of the Trusts and
the guarantees and junior subordinated deferrable interest debentures of the
Company under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, these standard
provisions, the Pricing Agreement, the Trust Agreement, the Indenture, the
Guarantee, any Blue Sky or similar investment surveys or memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Designated
Securities; (iii) all expenses in connection with the qualification of the
Designated Securities, the Guarantee and the Subordinated Debentures for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Designated Securities and the Subordinated Debentures; (v) any filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, any required reviews by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Designated Securities
and the issuance of the Guarantee and the Subordinated Debentures; (vi) the cost
of preparing the Designated Securities and the Subordinated Debentures; (vii)
the fees and expenses of any
-00-
Xxxxxxx, Xxxxxxxxx Trustee and Guarantee Trustee, and any agent of any trustee
and the fees and disbursements of counsel for any trustee in connection with the
Trust Agreement, the Indenture, the Guarantee and the Designated Securities;
(viii) the cost of qualifying the Designated Securities with The Depository
Trust Company; (ix) all fees and expenses in connection with listing the
Designated Securities (and the Subordinated Debentures, if necessary) on the New
York Stock Exchange and the cost of registering the Designated Securities (and
the Subordinated Debentures, if necessary) under Section 12 of the Exchange Act;
and (x) all other costs and expenses incident to the performance of its
obligations or the obligations of the Designated Trust under the applicable
Pricing Agreement under any Over-allotment Options which are not otherwise
specifically provided for in this Section 6. It is understood, however, that,
except as provided in this Section 6, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Designated Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Company in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Designated Trust
and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction;
(b) Milbank, Tweed, Xxxxxx & XxXxxx, Counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated
each Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company and the formation of the Designated Trust, the
validity of the Designated Securities, the Subordinated Debentures, the
Guarantee, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxx Xxxxxxxx, Senior Counsel of The Bank of New York, shall have
furnished to the Representatives such written opinion or opinions, dated
each Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) Each of the Company and the Bank has been duly incorporated
and is an existing corporation or banking corporation, respectively,
in good standing under the laws of the State of New York and the
Company has the corporate power and authority to own its properties
and conduct its business
-12-
as described in the Prospectus as amended or supplemented relating to
the Designated Securities;
(ii) The Company Agreements have each been duly authorized,
executed and delivered by the Company and constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; the Company Agreements conform to the
descriptions thereof in the Prospectus as amended or supplemented; the
Subordinated Debentures are entitled to the benefits provided by the
Indenture; and the Trust Agreement, the Indenture and the Guarantee
have each been duly qualified under the Trust Indenture Act;
(iii) The Subordinated Debentures being issued at such Time of
Delivery have been duly authorized in conformity with the terms of the
Indenture, and when such Subordinated Debentures have been duly
executed, authenticated and issued in conformity with the Indenture
and delivered against payment in accordance with the Pricing Agreement
with respect to the Designated Securities will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(iv) The Designated Securities have been duly authorized by the
Company, as depositor, on behalf of the Designated Trust;
(v) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company or the
Designated Trust, as the case may be, on or prior to the date of such
opinion under the Federal laws of the United States and the laws of
the State of New York for the issuance, sale and delivery of the
Designated Securities by the Designated Trust to the Underwriters and
the issuance, sale and delivery by the Company to the Designated Trust
of the Subordinated Debentures and the execution and delivery by the
Company of the Guarantee with respect to the Designated Securities, in
accordance with the Pricing Agreement with respect to the Designated
Securities, have been obtained or made (except that such counsel need
express no opinion with respect to Federal or state securities laws,
other antifraud laws, fraudulent transfer laws, the Employee
Retirement Income Security Act of 1974 and related laws and laws that
restrict transactions between United States persons and citizens or
residents of certain foreign countries);
(vi) The Pricing Agreement (including without limitation the
provisions hereof incorporated by reference therein) with respect to
the Designated Securities has been duly authorized, executed and
delivered by the Company;
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(vii) The execution and delivery by the Company of the
Indenture, the Guarantee and the Pricing Agreement with respect to the
Designated Securities do not, and the issuance of the Subordinated
Debentures being issued at such Time of Delivery in accordance with
the Indenture, the sale by the Company of the Subordinated Debentures
as contemplated in the Prospectus as amended and supplemented and the
performance by the Company of its obligations under the Company
Agreements, the Pricing Agreement with respect to the Designated
Securities and the Subordinated Debentures will not violate the
Company's Restated Certificate of Incorporation, as amended, or By-
Laws, in each case as in effect at the date of such opinion, result in
a default under or breach of certain agreements specified in an annex
to such opinion, in each case as in effect at the date of such
opinion, or violate any existing Federal law of the United States or
law of the State of New York applicable to the Company (except that
such counsel need express no opinion with respect to Federal or state
securities laws, other antifraud laws, fraudulent transfer laws, the
Employee Retirement Income Security Act of 1974 and related laws and
laws that restrict transactions between United States persons and
citizens or residents of certain foreign countries, and insofar as
performance by the Company of its obligations under the Indenture, the
Pricing Agreement with respect to the Designated Securities and the
Subordinated Debentures is concerned, such counsel need express no
opinion as to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights); and
[THE FOLLOWING OPINION SHALL NOT BE REQUIRED IF IT IS PROVIDED BY
XXXXXXXX & XXXXXXXX](viii) Each part of the Registration Statement,
when such part became effective, and the Prospectus, as of its date
(other than the financial statements and other financial data therein,
as to which such counsel need express no opinion), appeared on their
face to be appropriately responsive, in all material respects relevant
to the offering of the Securities, to the requirements of the Act, the
Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder; further, nothing which came to his attention in
the course of his review (as described in such opinion) has caused him
to believe that, insofar as relevant to the offering of the Designated
Securities, any part of the Registration Statement, when such part
became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of its date (other than the financial statements and
other financial data therein, as to which such counsel need express no
opinion), contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; also, nothing that has come to such counsel's attention in
the course of certain procedures (as described in such opinion) has
caused such counsel to believe that the Prospectus, as of the date and
time of delivery of such opinion, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Such counsel may state
that he does not assume any responsibility for the
-14-
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for those made under
the captions "Description of Junior Subordinated Debentures",
"Description of Preferred Securities", "Description of Guarantees",
"Relationship Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures, the Expense Agreement and the Guarantees" and
"Plan of Distribution" in the Prospectus and under the captions
"Certain Terms of Series B Preferred Securities", "Certain Terms of
Series B Subordinated Debentures" and "Underwriting" in the Prospectus
as amended and supplemented insofar as they relate to provisions of
documents therein described and that he does not express any opinion
or belief as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus or as to the
statements of the eligibility of the Trustee.]
(d) Xxxxxxxx & Xxxxxxxx, special counsel to the Company, shall have
furnished to the Representatives their opinion or opinions, dated each Time
of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(ii) The Subordinated Debentures being issued at such Time of
Delivery have been duly authorized in conformity with the terms of the
Indenture, and when such Subordinated Debentures have been duly
executed, authenticated and issued in conformity with the Indenture
and delivered against payment in accordance with this Agreement will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iii) The Guarantee has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iv) The Pricing Agreement with respect to the Designated
Securities has been duly authorized, executed and delivered by the
Company;
(v) The Trust is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended;
-15-
(vi) The statements set forth in the Prospectus under the
captions "Description of Junior Subordinated Debentures", "Description
of Preferred Securities", "Description of Guarantees" and
"Relationship Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures, the Expense Agreement and the Guarantees" and
in the Prospectus as amended or supplemented under the captions
"Certain Terms of Series B Preferred Securities" and "Certain Terms of
Series B Subordinated Debentures" insofar as they purport to
constitute summaries of certain terms of the Designated Securities,
the Subordinated Debentures or the Company Agreements, in each case
constitute accurate summaries of the terms of the Company Agreements
and of such securities, as set forth in the Company Agreements, in all
material respects; and
[THE FOLLOWING OPINION SHALL NOT BE REQUIRED IF IT IS PROVIDED BY
XXXX XXXXXXXX](vii) Each part of the Registration Statement, when
such part became effective, and the Prospectus, as of its date (other
than the financial statements and other financial data therein, as to
which such counsel need express no opinion), appeared on their face to
be appropriately responsive, in all material respects relevant to the
offering of the Securities, to the requirements of the Act, the Trust
Indenture Act and the applicable rules and regulations of the
Commission thereunder; further, nothing which came to their attention
in the course of their review (as described in such opinion) has
caused them to believe that, insofar as relevant to the offering of
the Designated Securities, any part of the Registration Statement,
when such part became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its date (other than the
financial statements and other financial data therein, as to which
such counsel need express no opinion), contained any untrue statement
of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading; also, nothing that has
come to such counsel's attention in the course of certain procedures
(as described in such opinion) has caused such counsel to believe that
the Prospectus, as of the date and time of delivery of such opinion,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such counsel may state that they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
except for those made under the captions "Description of Junior
Subordinated Debentures", "Description of Preferred Securities",
"Description of Guarantees", "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures, the
Expense Agreement and the Guarantees" and "Plan of Distribution" in
the Prospectus and under the captions "Certain Terms of Series B
Preferred Securities", "Certain Terms of Series B Subordinated
Debentures" and "Underwriting" in the Prospectus as amended and
supplemented insofar as they relate to provisions of documents therein
described and that they do not express any opinion or belief as to the
financial
-16-
statements or other financial data contained in the Registration
Statement or the Prospectus or as to the statements of the eligibility
of the Trustee.]
(e) Xxxxxxxx, Xxxxxx & Finger, special Delaware Counsel to the
Designated Trust and the Company, shall have furnished to the
Representatives, the Company and the Designated Trust such written opinion
or opinions, dated each Time of Delivery for such Designated Securities, in
form and substance satisfactory to you, to the effect that:
(i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of
the Designated Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to own
property and conduct its business, all as described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and legally
binding obligation of the Company and the Trustees, enforceable
against each of the Company and the Trustees, in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to (a)
execute and deliver the Pricing Agreement relating to the Designated
Securities (incorporating by reference the provisions hereof) and to
perform its obligations under such Pricing Agreement, and (b) issue
and perform its obligations under the Designated Securities and the
Common Securities;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust of the
Pricing Agreement relating to the Designated Securities (incorporating
by reference the provisions hereof) and the performance by the
Designated Trust of its obligations thereunder, have been duly
authorized by all necessary action on the part of the Designated
Trust;
(vi) The Designated Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
beneficial interests in the Designated Trust and are entitled to the
benefits provided by the Trust Agreement; the Securityholders, as
beneficial owners of the Designated Trust, will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such counsel
may note that the Securityholders may be obligated, pursuant to the
Trust
-17-
Agreement, to (a) provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers or
exchanges of certificates representing the Designated Securities and
the issuance of replacement certificates representing the Designated
Securities and (b) provide security and indemnity in connection with
requests of or directions to the Property Trustee (as defined in the
Trust Agreement) to exercise its rights and remedies under the Trust
Agreement;
(vii) The Common Securities have been duly authorized by the
Trust Agreement and are validly issued and represent beneficial
interests in the Designated Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of Designated
Securities and the Common Securities, the execution and delivery of
the Pricing Agreement (incorporating by reference the provisions
hereof) with respect to the Designated Securities and performance by
the Designated Trust of such Pricing Agreement, the consummation by
the Designated Trust of the transactions contemplated thereby and
compliance by the Designated Trust with its obligations thereunder
will not violate (a) any of the provisions of the Certificate of Trust
of the Designated Trust or the Trust Agreement, or (b) any applicable
Delaware law or administrative regulation;
(x) Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and has
no assets, activities (other than maintaining the Delaware Trustee and
the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, no authorization,
approval, consent or order of any Delaware court or governmental
authority or agency is required to be obtained by the Designated Trust
solely in connection with the issuance and sale of the Designated
Securities and the Common Securities. In rendering the opinion
expressed in this paragraph (x), such counsel need express no opinion
concerning the securities laws of the State of Delaware;
(xi) Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and has
no assets, activities (other than maintaining the Delaware Trustee and
the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, the Securityholders
(other than those holders of the Designated Securities who reside or
are domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result of
their participation in the Designated Trust, and the Designated Trust
will not be liable for any income tax imposed by the State of
Delaware;
(f) Xxxxxxxx & Xxxxxxxx, tax counsel for the Designated Trust and the
Company, shall have furnished to you their written opinion, dated the
respective Time
-18-
of Delivery, in form and substance satisfactory to you, to the effect that
such firm confirms its opinion set forth in the Prospectus as amended or
supplemented under the caption "Certain Federal Income Tax Consequences";
(g) At each Time of Delivery with respect to the Designated
Securities, Ernst & Young LLP (and/or, if specified in the Pricing
Agreement relating to such Designated Securities, one or more other
independent accountants acceptable to the Representatives) shall have
furnished to you a letter or letters, dated the date of delivery thereof,
in form and substance satisfactory to you, to the effect set forth in Annex
II hereto or as may otherwise be agreed in an additional schedule to the
Pricing Agreement with respect to such Designated Securities;
(h) Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended and supplemented
with respect to the Designated Securities there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as so amended and supplemented, the effect of which is in the
Representatives' judgment after consultation with the Company so material
and adverse as to make it impractical or inadvisable to proceed with the
public offering of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as so amended and supplemented;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any downgrading in the
rating of any debt securities or preferred stock of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities or preferred stock of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating);
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Firm
Designated Securities or Optional Designated Securities or both on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented relating to the Designated Securities;
(k) If required by the Pricing Agreement relating to the Designated
Securities, the Designated Securities to be sold by the Designated Trust at
the
-19-
respective Time of Delivery shall have been duly listed, subject to notice
of issuance, on the New York Stock Exchange; and
(l) The Designated Trust and the Company shall have furnished or
caused to be furnished to the Representatives at each Time of Delivery for
the Designated Securities certificates of officers of the Designated Trust
and the Company satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Designated Trust and the Company
herein at and as of such Time of Delivery, as to the performance by each of
the Designated Trust and the Company of all of its obligations hereunder to
be performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (h) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Company and the Designated Trust will, jointly and
severally, indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter
may become subject, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Designated Trust
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter of
Designated Securities through the Representative expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Designated Trust against any losses, claims, damages or liabilities to
which the Company or the Designated Trust may become subject insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated
Securities through the Representatives expressly for use therein; and will
reimburse the Company or the Designated Trust, as the case
-20-
may be, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
No indemnifying party shall without the prior written consent of the
indemnified party effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is a party and
indemnity has been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Designated Trust on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and the Designated
Trust on the one hand and the Underwriters of the Designated Securities on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Designated Trust on the
one hand and the Underwriters of the Designated Securities on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Designated Trust
bear to the total compensation
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received by such Underwriters in connection with the offering of Designated
Securities, in each case as set forth in the footnote to the table on the
cover page of the Prospectus as amended and supplemented with respect to
the Designated Securities. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the
Designated Trust on the one hand or the Underwriters of the Designated
Securities on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Designated Trust and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter of the Designated
Securities shall be required to contribute any amount in excess of the
amount by which the total price at which the Designated Securities
purchased by it were resold by it as contemplated in the Prospectus exceeds
the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company and the Designated Trust under this
Section 8 shall be in addition to any liability which the Company or the
Designated Trust may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within
the meaning of the Act; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or the Optional Designated Securities which
it has agreed to purchase under the Pricing Agreement relating to such
Designated Securities, the Representatives may in their discretion arrange
for themselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not
arrange for the purchase of such Firm Designated Securities or such
Optional Designated Securities, as the case may be, then the Designated
Trust and the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory
to the Representatives to purchase such Designated Securities on such
terms. In the event that, within the respective prescribed period, the
Representatives notify the Designated Trust and the Company
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that they have so arranged for the purchase of such Designated Securities,
or the Designated Trust and the Company notifies the Representatives that
it has so arranged for the purchase of such Designated Securities, the
Representatives or the Designated Trust and the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus
as amended or supplemented, or in any other documents or arrangements, and
the Designated Trust and the Company agree to file promptly any amendments
or supplements to the Registration Statement or the Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in these standard provisions shall include any person
substituted under this Section 9 with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the
Representatives and the Designated Trust and the Company as provided in
subsection (a) above, the aggregate number of such Designated Securities
which remains unpurchased does not exceed one-eleventh of the aggregate
number of the Firm Designated Securities or Optional Designated Securities,
as the case may be, to be purchased at the respective Time of Delivery,
then the Designated Trust and the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Firm Designated
Securities or Optional Designated Securities, as the case may be, which
such Underwriter agreed to purchase under the Pricing Agreement relating to
such Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm
Designated Securities or Optional Designated Securities, as the case may
be, which such Underwriter agreed to purchase under such Pricing Agreement)
of the Firm Designated Securities or Optional Designated Securities, as the
case may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the
Representatives and the Designated Trust and the Company as provided in
subsection (a) above, the aggregate number of Firm Designated Securities or
Optional Designated Securities, as the case may be, which remains
unpurchased exceeds one-eleventh of the aggregate number of the Firm
Designated Securities or Optional Designated Securities, as the case may
be, to be purchased at the respective Time of Delivery, as referred to in
subsection (b) above, or if the Designated Trust and the Company shall not
exercise the right described in subsection (b) above to require non-
defaulting Underwriters to purchase Firm Designated Securities or the Over-
allotment Option relating to such Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Designated Securities or the Over-allotment
Option relating to such Optional Designated Securities, as the case may be,
shall thereupon terminate, without liability on the part of any non-
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defaulting Underwriter, the Designated Trust or the Company, except for the
expenses to be borne by the Designated Trust, the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Designated Trust, the Company and the
several Underwriters, as set forth herein or made by or on behalf of them,
respectively, pursuant hereto, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Designated Trust, the Company, or any officer or director or controlling person
of the Designated Trust or the Company, and shall survive delivery of and
payment for the Designated Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Designated Trust nor the
Company shall then be under any liability to any Underwriter with respect to the
Firm Designated Securities or Optional Designated Securities covered by such
Pricing Agreement except as provided in Section 6 and Section 8 hereof; but, if
for any other reason, Designated Securities are not delivered by or on behalf of
the Designated Trust as provided herein, the Designated Trust and the Company
will reimburse the Underwriters through the Representatives for all out-of-
pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Designated Trust and the Company
shall then be under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Company, as the case may be, set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Designated Trust and the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. Each Pricing Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Designated Trust and the Company and, to
the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Designated
-24-
Trust or the Company and each person who controls the Designated Trust, the
Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of any such Pricing Agreement. No purchaser
of any of the Designated Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Each Pricing Agreement may be executed by any one or more of the
parties thereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute
one and the same instrument.
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ANNEX I
Pricing Agreement
To the Underwriters named in
Schedule I hereto
c/o [Names and Addresses of Representatives]
________ ___, ____
Dear Sirs:
BNY Capital __________, a statutory business trust formed under the
laws of the State of Delaware (the "Designated Trust") and The Bank of New York
Company, Inc., a New York corporation (the "Company"), propose, subject to the
terms and conditions stated herein and in the Underwriting Agreement Standard
Provisions (December 1997) (the "Standard Provisions"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the preferred
securities of the Designated Trust specified in Schedule II hereto. The Firm
Designated Securities and any Optional Designated Securities the Underwriters
may elect to purchase are herein referred to as the "Designated Securities."
Each of the provisions of the Standard Provisions is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of the
Standard Provisions so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Standard Provisions and the
address of the Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, (a) the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Designated Securities, as provided below, the Designated Trust agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Designated Trust at the
purchase price to the Underwriters set
forth in Schedule II hereto that portion of the number of Optional Designated
Securities as to which such election shall have been exercised.
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such
election to purchase Optional Designated Securities may be exercised by written
notice from the Representatives to the Designated Trust and the Company given
within a period of [30] calendar days after the date of this Pricing Agreement,
setting forth the aggregate number of Optional Designated Securities to be
purchased and the date on which such Optional Designated Securities are to be
delivered, as determined by the Representatives, but in no event earlier than
the First Time of Delivery or, unless the Representatives, the Company and the
Designated Trust otherwise agree in writing, no earlier than two or later than
ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us [ten] counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Standard Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Designated Trust and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By:____________________________
Name:
Title:
BNY CAPITAL __________
By: The Bank of New York Company,
Inc., as Depositor
By:____________________________
Name:
Title:
Accepted as of the date hereof:
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[Name(s) of Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
____________________________________
By:_________________________________
Name:
Title:
On behalf of each of the Underwriters
named on Schedule I hereto
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SCHEDULE I
(TO PRICING AGREEMENT)
Number of
Maximum
Number of Firm Optional
Designated Designated
Securities to Securities to
Underwriter be Purchased be Purchased
----------- ------------- -------------
[Names of Representatives]....
[Name of
Underwriters].......
Total
_____________ ________________
============== ===============
SCHEDULE II
(TO PRICING AGREEMENT)
DESIGNATED TRUST:
BNY Capital __________
TITLE OF DESIGNATED SECURITIES:
_____% ________________________ Preferred Securities, Series ____
AGGREGATE PRINCIPAL AMOUNT:
[Aggregate liquidation amount] [Number] of Firm Designated
Securities: [$]_________________
Maximum [aggregate liquidation amount] [Number] of Optional
Designated Securities: [$]__________________
INITIAL OFFERING PRICE TO PUBLIC
[$ _____ per Designated Security] [_____% of the principal amount of the
Designated Securities]
PURCHASE PRICE BY UNDERWRITERS:
[$ _____ per Designated Security][_____% of the principal amount of the
Designated Securities]
UNDERWRITERS' COMPENSATION:
$____ per Designated Security
FORM OF DESIGNATED SHARES:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to
be made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.
ACCOUNT FOR PAYMENT OF PURCHASE PRICE:
____________________________________
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated
_______________, between the Company and the
Trustees named therein
GUARANTEE:
Guarantee Agreement, dated as of ___________________, between Company, as
guarantor, and Guarantee Trustee
SUBORDINATED DEBENTURES:
_____% Junior Subordinated Debentures, Series _____
MATURITY:
INTEREST RATE:
______%
INTEREST PAYMENT DATES:
EXTENSION PERIOD:
[20 quarters]
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
No sinking fund provisions.
[LISTING:
The Company and the Designated Trust shall each use its best efforts
to list, subject to notice of issuance, the Designated Securities on the
New York Stock Exchange and, if the Corporation elects to terminate the
Designated Trust and to distribute the Subordinated Debentures to the
holders of the Designated Securities in liquidation of the Designated
Trust, to use its best efforts to list the Subordinated Debentures, subject
to notice of issuance, on the New York Stock Exchange, prior to such
distribution.]
[ACCOUNTANTS LETTERS:
At each Time of Delivery, [insert relevant provisions, if required]
[FIRST] TIME OF DELIVERY:
9:00 a.m., New York City time _______ __, ____
[SECOND TIME OF DELIVERY:
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The time and date specified in the notice [delivered/to be delivered] by
the Underwriters pursuant to Section 3 of the Standard Provisions.]
NAMES OF UNDERWRITERS AND NUMBER
OF FIRM DESIGNATED SECURITIES AND
MAXIMUM NUMBER OF OPTIONAL DESIGNATED
SECURITIES TO BE PURCHASED:
As described on Schedule I hereto.
CLOSING LOCATION:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
NAMES AND ADDRESSES OF REPRESENTATIVES:
-3-
ANNEX II
Accountants' Letter
Pursuant to Section 7(g) of the Underwriting Agreement Standard
Provisions (December 1997), the Company's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent public accountants with respect to the Company and
its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder, and the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them;
(ii) In their opinion, the consolidated financial statements, and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder; and they have made a review of the interim
financial information of the Company and its subsidiaries for the periods
specified in such letter in accordance with standards established by the
American Institute of Certified Public Accountants;
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a limited review of the unaudited consolidated financial
statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited information with respect to the annual consolidated
results of operations and financial position for fiscal years which was included
or incorporated by reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year does not agree with the corresponding amount in the
audited consolidated financial statements for such fiscal years which was
included or incorporated by reference in the Company's Annual Reports on Form
10-K for the last three fiscal years;
(B) the unaudited information with respect to the annual consolidated
results of operations and financial position for such fiscal years which was
included or incorporated by reference in the Prospectus does not agree with the
corresponding amounts in the audited consolidated financial statements for such
fiscal years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for the last three years;
(C) the unaudited consolidated financial statements included or
incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act and published rules and regulations thereunder or are not fairly presented
in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
consolidated financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited financial data included in the Prospectus as at any
time, or for any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company do not agree with the
corresponding amounts in the unaudited consolidated financial statements from
which such data are derived;
(E) the unaudited financial data included in the Prospectus do not
agree with the corresponding amounts in the unaudited financial statements which
were not included in the Prospectus but from which were derived such financial
data;
(F) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated shareholders'
equity or allowance for loan losses, in each case as compared with amounts shown
in the latest consolidated statement of condition included or incorporated by
reference in the Prospectus except in each case for changes which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(G) for the period from the date of the latest complete consolidated
financial statements included or incorporated by reference in the Prospectus to
the specified date referred to in (F) above there were any decreases in
consolidated net interest income, net interest income after provision for loan
losses, or the total or fully diluted per share amounts of net income of the
Company, in each case as compared with the comparable period of the preceding
year, except in each case for decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
(iv) In addition to the examination referred to in their reports included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraph (iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information specified by the Underwriters which are derived from the
general accounting records of the Company and its subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), in exhibits to
the Registration Statement specified by the Underwriters or in documents
incorporated by reference in the Prospectus specified by the Underwriters, and
have compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement Standard Provisions (December
1997) as of the date of the letter delivered on the date of the Pricing
Agreement for purposes of such letter and to the
-2-
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
-3-
