EXHIBIT 4.21
TRUST AGREEMENT
OF
BNY CAPITAL VII
This TRUST AGREEMENT, dated as of December 21, 1998 between The Bank of New
York Company, Inc., a New York corporation, as "Depositor", and Xxxx X. Park,
III and Xxxxxx X. Xxxxxxx as "Regular Trustees" and First Chicago Delaware Inc.
as "Delaware Trustee" (the Delaware Trustee and the Regular Trustees together,
the "Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BNY Capital VII, in which
name the Trustees, or the Depositor to the extent provided herein, may conduct
the business of the Trust, make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount
from the Depositor, which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate for the Depositor.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and that this document
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constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
to be included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Regular Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and certain other
securities and any other necessary documents relating thereto and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the
Preferred Securities of the Trust under Section 12 of the Securities Exchange
Act of 1934, as amended; (ii) to file with one or more national securities
exchange (each, an "Exchange") or the National Association of Securities Dealers
("NASD") and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on any such Exchange or the NASD's Nasdaq National
Market ("NASDAQ"); (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as the Depositor,
on behalf of the Trust, may deem necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws; (iv) to execute on
behalf of the Trust such Underwriting Agreements with one or more underwriters
relating to the offering of the Preferred Securities as the Depositor, on behalf
of the Trust, may deem necessary or desirable. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, any Exchange, the NASD or state securities or
Blue Sky laws, to be executed on behalf of the Trust by one of the Trustees, the
Depositor and any of the Trustees appointed pursuant to Section 6 hereof are
hereby authorized to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing. It being understood that First Chicago
Delaware Inc., in its capacity as Trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the NASD or any
other national stock exchange or state securities or blue sky laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor provided, however, such notice shall not be required if it is waived
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by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not have
any of the powers or duties of the trustees set forth herein and shall be a
Trustee of the Trust for the sole purpose of satisfying the requirements of
Section 3807(a) of the Business Trust Act.
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8. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE BANK OF NEW YORK COMPANY, INC.,
as Depositor
By:__________________________
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
as Trustee
By:__________________________
Name:
Title:
_____________________________
Xxxx X. Park, III
as Regular Trustee
_____________________________
Xxxxxx X. Xxxxxxx
as Regular Trustee
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