XXX XXXXXXX X
XXX XXXX XX XXX XXXX COMPANY, INC.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Pricing Agreement
To the Underwriters named in
Schedule I hereto
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
December 19, 1996
Ladies and Gentlemen:
BNY Capital I, 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 1996), a copy of which is attached hereto as Annex II (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 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 Representative herein and to the
Representatives in the provisions of the Standard Provisions so incorporated by
reference shall be deemed to refer to you. Capitalized terms used herein but not
defined herein shall have the meanings assigned to them in the Standard
Provisions or the Prospectus Supplement, as the case may be. The Representative
designated to act on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Standard Provisions and the address of
the Representative 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, 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.
At the Time of Delivery, Ernst & Young LLP shall have furnished to you
a letter or letters, dated the date of delivery thereof, in form and substance
satisfactory to the Representative, to the effect set forth in Annex I-A hereto
and Deloitte & Touche LLP shall have furnished you a letter or letters, dated
the date of delivery thereof, in form and substance satisfactory to the
Representative, to the effect set forth in Annex I-B hereto. By executing this
Pricing Agreement in connection with the offering of Designated Securities, you
hereby agree that delivery of such letters shall satisfy the condition set forth
in Section 7(g) of the Standard Provisions.
The Underwriters hereby covenant and agree with the Company and the
Designated Trust that insofar as the Underwriters offer and sell the Designated
Securities to any pension, profit-sharing or other employee benefit plans
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") (each a "Plan"), they will offer and confirm sales only to Plans that
they reasonably believe are entitled to rely on one of the prohibited
transaction class exemptions ("PTCEs") under regulations issued by the
Department of Labor, namely PTCE 96-23 (for certain transactions determined by
in-house asset managers), PTCE 95-60 (for certain transactions involving
insurance company general accounts), PTCE 91-38 (for certain transactions
involving bank collective investment funds), XXXX 00-0 (for certain transactions
involving insurance company separate accounts), and PTCE 84-14 (for certain
transactions determined by independent qualified asset managers).
For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934,
as amended, December 27, 1996 shall be the date for the payment of funds and
delivery of securities pursuant to the offering contemplated by this Agreement
and the Prospectus Supplement related to the Designated Securities.
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 Representative as to the
authority of the signers thereof.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Comptroller
BNY CAPITAL I
By: The Bank of New York Company,
Inc., as Depositor
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Comptroller
Accepted as of the date hereof:
As Representative of the Underwriters
Named in Schedule I hereto
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:/s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Associate
On behalf of each of the Underwriters
named on Schedule I hereto
SCHEDULE I
Aggregate
Liquidation
Amount of Firm
Designated
Securities to
Underwriter be Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $180,000,000
Xxxx Xxxxxx Xxxxxxxx Inc. 30,000,000
Xxxxxxx, Xxxxx & Co. 30,000,000
Xxxxxx Brothers Inc. 30,000,000
Salomon Brothers Inc 30,000,000
------------
$300,000,000
============
SCHEDULE II
Designated Trust:
BNY Capital I
Title of Designated Securities:
7.97% Capital Securities, Series B
Liquidation Amount of the Designated Securities
$1,000 per Designated Security ($300,000,000 in the aggregate)
Aggregate principal amount:
Aggregate liquidation amount of Firm Designated
Securities: $300,000,000
Initial Offering Price to Public
100% of the liquidation amount of the Designated Securities
Purchase Price by Underwriters:
100% of the liquidation amount of the Designated Securities
Underwriters' Compensation:
$10 per Designated Security ($3,000,000 in the aggregate)
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 Representative at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
Account for payment of purchase price:
The Bank of New York Company, Inc.
Acct. No. 0000131784 at The Bank of
New York ABA No. 000000000
Trust Agreement:
Amended and Restated Trust Agreement dated as of
December 25, 1996, between the Company and the
Trustees named therein
Guarantee:
Guarantee Agreement, dated as of December 25, 1996, between Company and
Guarantee Trustee
Subordinated Debentures:
7.97% Junior Subordinated Debentures, Series B
Maturity:
December 31, 2026
Interest Rate:
7.97%
Interest Payment Dates:
June 30 and December 31
Extension Period:
10 consecutive semi-annual periods
Redemption Provisions:
Not redeemable prior to December 31, 2006 except upon the
occurrence of a Tax Event or a Capital Treatment Event.
Special Event Redemption. Upon the occurrence of a Tax Event or a
Capital Treatment Event, redeemable prior to December 31, 1997 at a
Redemption Price equal to the Make-Whole Amount.
Optional Redemption. Redeemable after December 31, 2006 at the
respective Redemption Prices (expressed as a percentage of
liquidation amount) during the 12-month periods commencing on
December 31 of the years indicated below:
Year Price Year Price
2006 103.9850 2011 101.9925
2007 103.5865 2012 101.5940
2008 103.1880 2013 101.1955
2009 102.7895 2014 100.7970
2010 102.3910 2015 100.3985
and at 100% on or after December 31, 2016.
Sinking Fund Provisions:
No sinking fund provisions.
Exchange for Designated Securities
The Subordinated Debentures may be delivered in exchange for the
Designated Securities as provided in the Prospectus Supplement.
Time of Delivery:
9:00 a.m., New York City time, December 27, 1996
Closing Location:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Name and address of Representative:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ANNEX I-A
FORM OF ERNST & YOUNG LLP COMFORT LETTER
This draft is furnished solely for the purpose of indicating the form of the
letter that we would expect to xxxxxxx Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as representative of the underwriting group listed below, in
response to their request, the matters covered in the letter, and the nature of
the procedures that we would expect to carry out with respect to such matters.
Based on our discussions with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as representative of the underwriting group listed below, it is
our understanding that the procedures outlined in this draft letter are those
they wish us to follow. Unless Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as representative of the underwriting group listed below, informs
us otherwise, we shall assume that there are no additional procedures they wish
us to follow. The text of the letter itself will depend, of course, on the
results of the procedures, which we would not expect to complete until shortly
before the letter is given and in no event before the cutoff date indicated
therein. The restrictions expressed in the concluding paragraph apply to this
draft.
December 27, 1996
To the Board of Directors of
The Bank of New York Company, Inc.
and to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxxx Xxxxx & Co.
Xxxxxx Brothers, Inc.
Salomon Brothers Inc
(the "Underwriting Group")
Dear Sirs:
We have not audited the consolidated balance sheets of The Bank of New York
Company, Inc. (the "Company") and its subsidiaries as of December 31, 1995 and
1994 and the consolidated statements of income, shareholders' equity, and cash
flows for each of the three years in the period ended December 31, 1995, and the
related schedules all included in the Company's Annual Report on form 10-K for
the year ended December 31, 1995 (the "Form 10-K") and incorporated by reference
in the Registration Statement (No.'s)33-15951, 000-00000-00, 000-00000-00,
000-00000-00, 000-00000-00, and 333-15951-05) on Form S-3, dated December 13,
1996, filed by the Company under the Securities Act of 1933 (the "Act") and the
Prospectus Supplement dated December 19, 1996 with regard to the issuance of
$300,000,000 BNY Capital I, 7.97% Capital Securities, Series B, herein referred
to as the "Registration Statement."
In connection with the Registration Statement:
1. We are independent auditors with respect to the Company within the meaning
of the Act and the applicable published rules and regulations thereunder.
2. We have not audited any financial statements of the Company as of any date
or for any period. Therefore, we are unable to express and do not express
an opinion on: the consolidated balance sheets of the Company and its
subsidiaries as of December 31, 1995 and 1994 and the consolidated
statements of income, shareholders' equity, and cash flows for each of the
three years in the period ended December 31, 1995, and the related
schedules all included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, incorporated by reference in the Registration
Statement; the unaudited consolidated balance sheets of the Company and its
subsidiaries as of March 31, 1996, June 30, 1996 and September 30, 1996 and
the unaudited consolidated statements of income, shareholders' equity, and
cash flows for the three-month period ended March 31, 1996, the three and
six-month periods ended June 30, 1996, and the three and nine-month periods
ended September 30, 1996, each incorporated by reference in the
Registration Statement from the Company's quarterly reports on Form 10-Q;
or the financial position, results of operations, or cash flows as of any
date or for any period.
3. For purposes of this letter, we have read the 1996 minutes of meetings
of the shareholders and the Board of Directors of the Company and its
subsidiaries as set forth in the minute books through December 24,
1996, officials of the Company having advised us that the minutes of
all such meetings through that date were set forth therein and have
carried out other procedures to December 24, 1996 as follows (our work
did not extend to the period from December 25, 1996, to December 27,
1996, inclusive):
a. With respect to the three-month period ended March 31, 1996, the three
and six-month periods ended June 30, 1996, and the three and
nine-month periods ended September 30, 1996, we have:
(1) Read the unaudited consolidated balance sheet as of March 31,
1996, and unaudited consolidated statements of income,
shareholders' equity, and cash flows for the three-month period
ended March 31, 1996, incorporated by reference in the
Registration Statement from the Company's quarterly report on
Form 10-Q (see exhibit IV), and agreed the amounts contained
therein with the Company's accounting records as of March 31,
1996, and for the three-month period then ended.
-2-
Read the unaudited consolidated balance sheet as of June 30,
1996, and unaudited consolidated statements of income,
shareholders' equity, and cash flows for the three and six-month
periods ended June 30, 1996, incorporated by reference in the
Registration Statement from the Company's quarterly report on
Form 10-Q (see exhibit V), and agreed the amounts contained
therein with the Company's accounting records as of June 30,
1996, and for the three and six-month periods then ended.
Read the unaudited consolidated balance sheet as of September 30,
1996, and unaudited consolidated statements of income,
shareholders' equity, and cash flows for the three and nine-month
periods ended September 30, 1996, incorporated by reference in
the Registration Statement from the Company's quarterly report on
Form 10-Q (see exhibit VI), and agreed the amounts contained
therein with the Company's accounting records as of September 30,
1996, and for the three and nine- month periods then ended.
(2) Inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether the
unaudited consolidated financial statements referred to in
3.a.(1); (i) are in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that
of the audited consolidated financial statements incorporated by
reference in the Registration Statement from the Form 10-K, and
(ii) comply as to form in all material respects with the
applicable accounting requirements of the Securities Exchange Act
of 1934 as it applies to Form 10-Q and the related published
rules and regulations. Those officials stated that the unaudited
consolidated financial statements (i) are in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements incorporated by reference in the
Registration Statement from the Form 10-K, and (ii) comply as to
form in all material respects with the applicable accounting
requirements of the Securities Exchange Act of 1934 as it applies
to Form 10-Q and the related published rules and regulations.
b. With respect to the period from October 1, 1996 to November 30, 1996,
we have:
-3-
(1) Read the unaudited consolidated financial statements of the
Company for October and November 1996 furnished to us by the
Company, and agreed the amounts contained therein to the
Company's accounting records. Officials of the Company have
advised us that no such financial statements as of any date or
for any period subsequent to November 30, 1996, were available.
The financial information for October and November 1996 is
incomplete in that it omits the consolidated statements of
changes in shareholders' equity and cash flows, and other
disclosures.
(2) Inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether (i)
the unaudited consolidated financial statements referred to in
3.b.(1) are stated on a basis substantially consistent with that
of the audited consolidated financial statements incorporated by
reference in the Registration Statement from the Form 10-K, (ii)
at November 30, 1996, there was any change in the consolidated
capital stock, increase in consolidated long-term debt or any
decrease in consolidated shareholders' equity or allowance for
loan losses of the Company and its subsidiaries as compared with
amounts shown in the September 30, 1996 unaudited consolidated
balance sheet incorporated by reference in the Registration
Statement from the Company's quarterly report on Form 10-Q, and
(iii) for the period from October 1, 1996 to November 30, 1996,
there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated net interest
income, net interest income after provision for loan losses, or
of net income of the Company.
Those officials stated (i) the unaudited consolidated financial
statements referred to in 3.b.(1) are stated on a basis
substantially consistent with that of the audited consolidated
financial statements incorporated by reference in the
Registration Statement from the Form 10-K, (ii) at November 30,
1996, there was no change, except as described below, in the
consolidated capital stock (except for the exercise of
outstanding warrants and the continual impact of the Company's
Stock Buy Back Program which have been disclosed in the Company's
quarterly reports on Form 10-Q incorporated by reference in the
Registration Statement), no increase in consolidated long-term
debt, and no decrease in consolidated shareholder's equity or
allowance for loan losses of the Company and its subsidiaries as
compared with amounts shown in the September 30, 1996 unaudited
consolidated balance sheet incorporated by reference in the
Registration Statement from the Company's quarterly report on
Form 10-Q, and (iii) there were no decreases for the period from
-4-
October 1, 1996 to November 30, 1996, as compared with the
corresponding period in the preceding year, in consolidated net
interest income, net interest income after provision for loan
losses, or in net income of the Company except as described below
(dollars in thousands):
At November 30, 1996 At September 30, 1996 Increase
-------------------- --------------------- --------
Long Term Debt $1,816,252 $1,815,854 $ 398
At November 30, 1996 At September 30, 1996 Decrease
-------------------- --------------------- --------
Shareholders' Equity $5,093,420 $5,117,124 $23,704
Allowance for Loan Losses $ 926,532 $ 956,959 $30,427
For the two months For the two months
ended November 30, ended November 30, Decrease
1996 1995
------------------ ------------------ --------
Consolidated Net Interest Income $ 326,728 $ 338,771 $12,043
Consolidated Net Interest Income
after Provision for Loan Losses $ 296,728 $ 308,771 $12,043
c. As mentioned in 3.b.(1), Company officials have advised us that no
financial statements as of any date or for any period subsequent to
November 30, 1996, are available; accordingly, the procedures carried
out by us with respect to changes in financial statement items after
November 30, 1996, have, of necessity, been even more limited than
those with respect to the periods referred to in 3.a. and 3.b. We have
inquired of certain officials of the Company who have responsibility
for financial and accounting matters whether (i) at December 24, 1996,
there was any change in the capital stock, increase in long-term debt
or any decreases in consolidated shareholders' equity or allowance for
loan losses of the Company and its subsidiaries as compared with
amounts shown on the September 30, 1996, unaudited consolidated
balance sheet incorporated by reference in the Registration Statement
from the Company's quarterly report on Form 10-Q, or (ii) for the
period from October 1, 1996 to December 24, 1996, there were any
-4-
decreases, as compared with the corresponding period in the preceding
year, in consolidated net interest income, net interest income after
provision for loan losses, or of net income of the Company. Management
could not respond to our inquiries about changes, increases or
decreases as no consolidated financial data subsequent to November 30,
1996 was available as of December 24, 1996, except for their
expectation that capital stock will be effected by the exercise of
outstanding warrants and the Company's Stock Buy Back Program, that
there will be a decrease in consolidated shareholders' equity and
allowance for loan losses as compared to September 30, 1996, that on
December 5, 1996, the Company issued $300,000,000 Guaranteed Preferred
Beneficial Interests in the Corporation's Junior Subordinated
Deferrable Interest Debentures and that there will be a decrease in
net interest income and net interest income after provision for loan
losses as compared with the corresponding period in the preceding
year.
4. For purposes of this letter, we have performed the following procedures,
which were applied as indicated with respect to the symbols explained
below:
Letter Key Procedures and Findings
---------- -----------------------
(see Exhibits I, II, III)
A We compared and agreed to
amounts in, or amounts
combined or derived from,
the unaudited consolidated
financial statements of the
Company as of September 30,
1996 and for the three and
nine-months periods
then ended from the
Company's Quarterly Report
on Form 10-Q which is
incorporated by reference in
the Registration Statement.
B We compared and agreed to
amounts in, or amounts
combined or derived from,
the audited consolidated
financial statements of the
Company as of December 31,
1995 and for the three years
then ended from the
Company's Annual Report on
Form 10-K which is
incorporated by reference in
the Registration Statement.
-5-
C We compared dollar amount(s)
(rounded) to worksheets prepared by
the Company. We compared, on a
limited sample basis, the amounts
appearing on such worksheets, with
the exception of the estimated
interest component of rent expense,
net of income from subleases, to the
underlying accounting records of the
Company. We also tested the
mathematical accuracy of the
computations on the worksheets
prepared by the Company to the
extent such computations were
required to be performed to derive
the amount(s).
The foregoing procedures do not constitute an audit conducted in accordance with
generally accepted auditing standards. We make no representations regarding the
sufficiency of the foregoing procedures for your purposes. Had we performed
additional procedures or had we conducted an audit or a review, other matters
might have come to our attention that would have been reported to you.
This letter is solely for the information of the addressees and to assist the
underwriters in conducting and documenting their investigation of the affairs of
the Company in connection with the offering of the securities covered by the
Registration Statement, and is not be used, circulated, quoted or otherwise
referred to within or without the underwriting group for any other purpose,
including, but not limited to, the registration, purchase or sale of securities,
nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or any list of closing documents pertaining
to the offering of the securities covered by the Registration Statement.
Very truly yours,
ANNEX I-B
FORM OF DELOITTE & TOUCHE LLP COMFORT LETTER
This draft is furnished solely for the purpose of indicating the form of letter
that we would expect to be able to xxxxxxx Xxxxxxx Xxxxx & Co. in response to
their request, the matters expected to be covered in the letter, and the nature
of the procedures that we would expect to carry out with respect to such
matters. Based on our discussions with A. Xxxxxxxx Xxxxxxxxxx (Millbank, Tweed,
Xxxxxx & XxXxxx), it is our understanding that the procedures outlined in this
draft letter are those they wish us to follow. Unless Xxxxxxx Xxxxx & Co.
informs us otherwise, we shall assume that there are no additional procedures
they wish us to follow. The text of the letter itself will depend, of course, on
the results of the procedures, which we would not expect to complete until
shortly before the letter is given and in no event before the cutoff date
indicated therein.
December 23, 1996
Xxxxxxx Xxxxx & Co.
New York, New York
Dear Sirs:
We have audited the consolidated balance sheets of The Bank of New York Company,
Inc. and subsidiaries (the "Company") as of December 31, 1995 and 1994, and the
related consolidated statements of income, changes in shareholders' equity and
cash flows for each of the three years in the period ended December 31, 1995,
included in the Company's 1995 Annual Report to Shareholders and incorporated by
reference in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 and incorporated by reference in the Prospectus Supplement
dated December 19, 1996 (to Prospectus dated December 17, 1996) related to the
$300 million of Series B 7.97% Capital Securities of BNY Capital I, pursuant to
Registration Statement No. 333-15951 on Form S-3 filed by the Company under the
Securities Act of 1933 (the Act). Our report dated February 26, 1996 with
respect thereto is incorporated by reference in the Prospectus.
As of February 26, 1996 and during the period covered by the financial
statements on which we reported, we were independent accountants with respect to
the Company within the meaning of the Act and the applicable published rules and
regulations thereunder.
We have not audited any financial statements of the Company as of any date or
for any period subsequent to December 31, 1995. Although we have conducted an
audit for the year ended December 31, 1995, the purpose (and therefore the
scope) of the audit was to enable us to express our opinion on the consolidated
financial statements as of December 31, 1995, and for the year then ended, but
not on the consolidated financial statements for any interim period within that
year. Therefore, we are unable to, and do not express any opinion on the
unaudited consolidated balance sheet as of March 31, June 30 and September 30,
1995, the unaudited consolidated statements of income and cash flows for the
three month period ended March 31, 1995, the three month and six month periods
ended June 30, 1995, and the three month and nine month periods ended September
30, 1995, and the consolidated statement of changes in shareholders' equity for
the three months ended March 31, 1995, the six months ended June 30, 1995 and
the nine months ended September 30, 1995, included in the Company's quarterly
reports on Form 10-Q for the quarters ended March 31, June 30 and September 30,
1995 and incorporated by reference in the Prospectus, or on the financial
position, results of operations or cash flows as of any date or for any period
subsequent to December 31, 1995.
With respect to the three month period ended March 31, 1995, the three month and
six month periods ended June 30, 1995, and the three month and nine month
periods ended September 30, 1995 we have, at your request:
(i) Read the unaudited consolidated balance sheets as of March 31, June 30, and
September 30, 1995, and the unaudited consolidated statements of income and
cash flows for the three month period ended March 31, 1995, the three month
and six month periods ended June 30, 1995, and the three month and nine
month periods ended September 30, 1995, and the unaudited consolidated
statement of changes in shareholders' equity for the three months ended
March 31, 1995, the six months ended June 30, 1995, and the nine months
ended September 30, 1995, incorporated by reference in the Prospectus.
(ii) Inquired of certain officials of the Company who have responsibility for
financial and accounting matters whether the unaudited consolidated
financial statements referred to in (i) are stated on a basis substantially
consistent with the audited consolidated financial statements incorporated
by reference in the Prospectus.
-2-
Nothing came to our attention as a result of the foregoing procedures, however,
that caused us to believe that -
a) Any material modifications should be made to the unaudited
consolidated financial statements described in (i), incorporated by
reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles.
b) The unaudited consolidated financial statements described in (i) do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations.
It should be understood that we have no responsibility for establishing (and did
not establish) the scope and nature of the procedures enumerated in the
preceding paragraphs; rather the procedures enumerated therein are the
procedures you asked us to perform. Accordingly, we make no representations
regarding questions of legal interpretation or regarding the sufficiency for
your purposes of the procedures enumerated in the preceding paragraph, and these
procedures should not be taken to supplant any additional inquiries or
procedures that you would undertake in your consideration of the proposed sale
of securities by the Company. Such procedures do not constitute an audit
conducted in accordance with generally accepted auditing standards. Had we
performed additional procedures, other matters might have come to our attention
that would have been reported to you.
This letter is solely for your information and to assist you in your inquiries
in connection with the offering of the securities covered by the Prospectus
Supplement, and is not to be used, circulated, quoted or otherwise referred to
for any other purpose, including but not limited to the offering, purchase, or
sale of securities, nor is it to be filed with or referred to in whole or in
part in the Prospectus Supplement or any other document, except that reference
may be made to it in any list of closing documents pertaining to the offering of
the securities covered by the Prospectus Supplement.
Yours truly,
ANNEX II
BNY CAPITAL I
BNY CAPITAL II
BNY CAPITAL III
BNY CAPITAL IV
BNY CAPITAL V
Preferred Securities
guaranteed to the extent set forth in Guarantees by
THE BANK OF NEW YORK COMPANY, INC.
Underwriting Agreement Standard Provisions
(December 1996)
BNY CAPITAL I
BNY CAPITAL II
BNY CAPITAL III
BNY CAPITAL IV
BNY CAPITAL V
Preferred Securities
guaranteed to the extent set forth in Guarantees by
THE BANK OF NEW YORK COMPANY, INC.
Underwriting Agreement Standard Provisions
(December 1996)
From time to time, XXX Xxxxxxx X, XXX Xxxxxxx XX, XXX Xxxxxxx XXX, XXX
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. 333-15951
and 000-00000-00 through 333-15951-05) (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 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 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 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 "Security-
holders") 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;
(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 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");
(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;
(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 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 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 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 Trustee, Debenture
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 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;
(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 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;
(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 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
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 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 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 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 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 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-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 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.
