AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of December 25,
1996, between The Bank of New York Company, Inc., a New York corporation, in its
capacity Holder (as defined in the Trust Agreement referred to below) of the
Common Securities referred to below (in such capacity, and together with its
successors in such capacity, the "Common Securityholder"), and BNY Capital I, a
Delaware business trust (the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire Debentures from The Bank of New York
Company, Inc., a New York Corporation and to issue and sell 7.97% Capital
Securities, Series B (the "Capital Securities") with such powers, preferences
and special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Issuer Trust, dated as of December 25, 1996 among The
Bank of New York Company, Inc., as Depositor, The First National Bank of
Chicago, as Property Trustee, First Chicago Delaware Inc., as Delaware Trustee,
and the Administrative Trustees named therein, as the same may be amended from
time to time (the "Trust Agreement");
WHEREAS, the Common Securityholders will own all of the Common
Securities of the Trust;
WHEREAS, terms used but not defined herein have the meanings set forth
in the Trust Agreement;
NOW, THEREFORE, for good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged:
ARTICLE I
SECTION 1.1. Guarantee by the Common Securityholder. Subject to the
terms and conditions hereof, the Common Securityholder 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 Common Securityholder under this Agreement
shall constitute unsecured obligations of the Common Securityholder and shall
rank subordinate and junior in right of payment to all Senior Indebtedness (as
defined in the Indenture) of the Common Securityholder 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 Common Securityholder hereunder. The obligations of the
Common Securityholder hereunder do not constitute Senior Indebtedness (as
defined in the Indenture) of the Common Securityholder.
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 Capital
Securities or any Beneficiary must restore payment of any sums paid under the
Capital Securities, under any Obligation, under the Guarantee Agreement dated
the date hereof by the Depositor and The First National Bank of Chicago 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 Common Securityholder hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and the Common Securityholder 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 Common Securityholder 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
-2-
Issuer Trust or any of the assets of the Issuer Trust (other than the
liquidation 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 Common Securityholder with respect to the happening of any
of the foregoing.
SECTION 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Common Securityholder and the Common Securityholder 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 Common
Securityholder.
SECTION 1.7. Subrogation. The Common Securityholder shall be subrogated
to all rights (if any) of the Issuer Trust in respect of any amounts paid to the
Beneficiaries by the Common Securityholder under this Agreement; provided,
however, that the Common Securityholder shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which 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; except that upon any transfer of the Common
Securities, this Agreement shall be assigned and delegated by the Common
Securityholder 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 Common Securityholder and shall inure to the benefit of
the Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any Beneficiary or any
Capital Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Capital Securities without the consent of such Beneficiary or the holders of the
Capital 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):
-3-
BNY Capital I
c/o The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
With a copy to:
The Bank of New York Company, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Secretary
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-4-
THIS AGREEMENT is executed as of the day and year first above written.
THE BANK OF NEW YORK COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Comptroller
BNY CAPITAL I
By: /s/ Xxxx X. Park, III
-------------------------------
Name: Xxxx X. Park, III
Administrative Trustee
-5-
