Exhibit 4.6
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement as to Expenses and Liabilities, dated as of April 30, 2003,
between The Bank of New York Company, Inc., a New York corporation, as Depositor
(the "Depositor"), and BNY Capital V, a Delaware statutory trust (the "Issuer
Trust").
Whereas, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire Debentures from the Depositor, and to issue
and sell 5.95% Trust Preferred Securities, Series F (the "Series F Trust
Preferred Securities" and together with the Common Securities, the "Trust
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement, dated as of April
30, 2003, among The Bank of New York Company, Inc., as Depositor, Bank One,
National Association, as Property Trustee, Bank One Delaware, Inc., as Delaware
Trustee, the Administrative Trustees named therein and the several Holders, as
the same may be amended from time to time (the "Trust Agreement");
Whereas, the Depositor will own all of the Common Securities of the Trust;
Whereas, capitalized terms used but not defined herein shall have the
meanings set forth in the Trust Agreement;
Now, Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
Section 1.1. Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities of the
Issuer Trust, other than obligations of the Issuer Trust to pay to holders of
any Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Depositor under this Agreement shall
constitute unsecured obligations of the Depositor and shall rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Depositor to the extent and in the
manner set forth in the Indenture with respect to the Debentures, and the
provisions of Article XIII of the Indenture will apply, mutatis mutandis, to the
obligations of the Depositor hereunder. The obligations of the Depositor
hereunder do not constitute Senior Indebtedness (as defined in the Indenture) of
the Depositor.
Section 1.3. Term of Agreement. This Agreement shall terminate and be of no
further force and effect upon the dissolution of the Issuer Trust; provided,
however, that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of Series F Trust
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Series F Trust Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Depositor and Bank One,
National Association, as guarantee trustee, or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.4. Waiver of Notice. The Depositor hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Depositor hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Depositor under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Issuer Trust in accordance
with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Depositor with respect to the happening of any of the
foregoing.
Section 1.6. Enforcement. A Beneficiary may enforce this Agreement directly
against the Depositor and the Depositor waives any right or remedy to require
that any action be brought against the Issuer Trust or any other person or
entity before proceeding against the Depositor.
Section 1.7. Subrogation. The Depositor shall be subrogated to all rights
(if any) of any Beneficiary against the Issuer Trust in respect
of any amounts paid to the Beneficiaries by the Depositor under this Agreement;
provided, however, that the Depositor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Agreement, if,
at the time of any such payment, any amounts are due and unpaid under this
Agreement.
ARTICLE II
Section 2.1. Assignment. This Agreement may not be assigned by either party
hereto without the consent of the other, and any purported assignment without
such consent shall be void; provided, however, that, upon any transfer of the
Common Securities, this Agreement shall be assigned and delegated by the
Depositor to its successor with such transfer without any action by either party
hereto.
Section 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Depositor and shall inure to the benefit of the
Beneficiaries.
Section 2.3. Amendment. So long as there remains any Beneficiary or any
Series F Trust Preferred Securities are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Series F Trust Preferred Securities without the consent of such
Beneficiary or the holders of the Series F Trust Preferred Securities, as the
case may be.
Section 2.4. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so given,
shall be deemed given when mailed or upon receipt of an answer-back, if sent by
telex):
BNY Capital V
c/o Bank One, National Association
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
With a copy to:
The Bank of New York Company, Inc.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Secretary
Section 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Agreement is executed as of the day and year first above written.
The Bank of New York Company, Inc.
By:/s/ Xxxxx Xxx Xxxx
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Name: Xxxxx Xxx Xxxx
Title: Senior Executive Vice
President and Chief Financial
Officer
BNY Capital V
By:/s/ Xxxx X. Park III
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Name: Xxxx X. Park III
Title: Administrative Trustee
