Exhibit 4
SECOND SUPPLEMENTAL INDENTURE, dated as of March 10, 2005,
between The Bank of New York Company, Inc., a corporation duly
organized and existing under the laws of the State of New York (herein
called the "Company"), having its principal offices at Xxx Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, and Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company), a banking corporation
organized and existing under the laws of the State of New York, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore duly executed and delivered to
the Trustee an Indenture, dated as of July 18, 1991, as supplemented by
the First Supplemental Indenture dated as of May 1, 2003 (as so
supplemented, the "Indenture"), providing for the issuance from time to
time of its unsecured debentures, notes, or other evidences of
indebtedness (the "Securities"), to be issued in one or more series.
The Company intends to issue $600,000,000 principal amount
of its Floating Rate Extendible Notes (the "Notes") under the Indenture.
The Notes are subject to exchange into subseries of substitute notes in
certain circumstances as set forth in the forms of Notes (collectively,
such subseries of substitute notes, the "Short-Term Notes").
Section 901(6) of the Indenture provides that, without the
consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may
enter into one or more supplemental indentures, in form satisfactory to
the Trustee, to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301 of the Indenture.
Section 901(4) of the Indenture provides that, without the
consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may
enter into one or more supplemental indentures, in form satisfactory to
the Trustee, to add to or change any of the provisions of the Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in global form.
All things necessary to make this Second Supplemental
Indenture a valid agreement of the Company, and a valid supplement to
the Indenture, have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the purchase
of the Notes by the Holders thereof, it is mutually covenanted and
agreed, solely for the benefit of the Holders of the Notes, as follows:
2
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions.
-----------
As used in this Second Supplemental Indenture, the
following terms shall have the meanings given to them below in this
Section 1.01:
"Agent Member" means any member of, or participant in, the
Depository.
"Applicable Procedures" means, with respect to any transfer
or transaction involving a Global Note or beneficial interest therein,
the rules and procedures of the Depository for such Note, to the extent
applicable to such transaction and as in effect at the time of such
transfer or transaction.
"DTC" means The Depository Trust Company, a New York
corporation.
"Global Note" means a Note that is registered in the
Security Register in the name of a Depository or a nominee thereof.
"Notes" means the Floating Rate Extendible Notes and shall
be deemed to include in this Second Supplemental Indenture the terms
included and set forth in the forms of Notes attached as Schedule I and
II hereto.
"Securities Act Legend" means the following:
"THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW,
AND OFFERS AND SALES THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS. BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER WILL BE DEEMED TO REPRESENT THAT (I) IT HAS BEEN AFFORDED AN
OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER AND THE
NOTES, (II) IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND (III) IT IS A QUALIFIED INSTITUTIONAL BUYER
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT THAT IS ACQUIRING
NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH
ACCOUNTS IS A QIB; AND THE PURCHASER ACKNOWLEDGES THAT IT IS AWARE THAT
THE SELLER MAY RELY UPON THE EXEMPTION FROM THE REGISTRATION PROVISIONS
OF SECTION 5 OF THE ACT PROVIDED BY RULE 144A. BY ITS ACCEPTANCE OF A
NOTE, THE PURCHASER THEREOF SHALL ALSO BE DEEMED TO AGREE THAT ANY
RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY (A) IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE ISSUER OR TO
A PLACEMENT AGENT DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR THE
NOTES (COLLECTIVELY, THE
3
"PLACEMENT AGENTS"), NONE OF WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE
SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO A QIB, OR (3) TO A QIB IN
A TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A AND (B) IN
MINIMUM AMOUNTS OF $100,000. "
"Successor Note" of any particular Note means every Note
issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Note; and, for the purpose of this
definition, any Note authenticated and delivered under Section 306 of
the Indenture in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
All other capitalized terms used in this Second
Supplemental Indenture and not defined herein shall have the meanings
assigned to them in the Indenture.
ARTICLE TWO
Note Form
SECTION 2.01. Form Generally.
--------------
(a) Each Note and the Trustee's certificate of
authentication therefor shall be in substantially the form, and have
the terms, set forth in Schedule I hereto, with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by the Indenture (as amended and supplemented by
this Second Supplemental Indenture), including the Securities Act
Legend (until such time as it may be removed as permitted by applicable
law), and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing
such Note, as evidenced by their execution of such Note.
Each Short-Term Note and the Trustee's certificate of
authentication therefor shall be in substantially the form, and have
the terms, set forth in Schedule II hereto, with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by the Indenture (as amended and supplemented by
this Second Supplemental Indenture), including the Securities Act
Legend (until such time as it may be removed as permitted by applicable
law), and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing
such Short-Term Note, as evidenced by their execution of such Short-
Term Note.
Upon their original issuance, the Notes shall be issued in
the form of one or more Global Notes without interest coupons
registered in the name of DTC, as
4
Depository, or its nominee and deposited with the Trustee (or any party
acceptable to the Company, DTC and the Trustee), as custodian for DTC,
for credit by DTC to the respective accounts of beneficial owners of
the Notes represented thereby (or such other accounts as they may
direct) in accordance with the rules thereof.
ARTICLE THREE
The Notes
SECTION 3.01. Global Notes.
------------
(a) If any Global Note is to be exchanged for other Notes
or cancelled in whole, it shall be surrendered by or on behalf of the
Depository or its nominee to the Security Registrar for exchange or
cancellation as provided in Section 305 of the Indenture. If any
Global Note is to be exchanged for other Notes or cancelled in part, or
if another Note is to be exchanged in whole or in part for a beneficial
interest in any other Global Note, including in exchange for Short-Term
Notes, then either (i) such Global Note shall be so surrendered for
exchange or cancellation as provided in Section 305 of the Indenture or
(ii) the principal amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or cancelled, or
equal to the principal amount of such other Note to be so exchanged for
a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Security Registrar,
whereupon the Security Registrar, in accordance with the Applicable
Procedures, shall instruct the Depository or its authorized
representative to make a corresponding adjustment to its records. Upon
any such surrender or adjustment of a Global Note, the Trustee shall,
unless otherwise provided in the Indenture (as amended and supplemented
by this Second Supplemental Indenture), authenticate and deliver any
Notes issuable in exchange for such Global Note (or any portion
thereof) to or upon the written order of, and registered in such names
as may be directed by, the Depository or its authorized representative.
Upon the request of the Trustee in connection with the occurrence of
any of the events specified in the eighth paragraph of Section 305 of
the Indenture, the Company shall promptly make available to the Trustee
a reasonable supply of Notes that are not in the form of Global Notes.
The Trustee shall be entitled to rely upon any order, direction or
request of the Depository or its authorized representative which is
given or made pursuant to this Article Three if such order, direction
or request is given or made in accordance with the Applicable
Procedures.
(b) Every Note authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Note or any portion thereof, whether pursuant to this Article Three or
otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Note, unless such Note is
5
registered in the name of a Person other than the Depository for such
Global Note or a nominee thereof.
(c) The Depository or its nominee, as registered
owner of a Global Note, shall be the Holder of such Global Note
for all purposes under this Second Supplemental Indenture, the
Indenture and the Notes, and owners of beneficial interests in a
Global Note shall hold such interests pursuant to the Applicable
Procedures. Accordingly, any such owner's beneficial interest in
a Global Note will be shown only on, and the transfer of such
interest shall be effected only through, records maintained by
the Depository or its nominee or its Agent Members.
The Indenture, as supplemented and amended by this Second
Supplemental Indenture, is in all respects ratified and confirmed, and
the Indenture, this Second Supplemental Indenture and all indentures
supplemental thereto shall be read, taken and construed as one and the
same instrument.
This Second Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one
and the same instrument.
6
IN WITNESS WHEREOF, the parties hereto have caused this
Second Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the day
and year first above written.
[SEAL] THE BANK OF NEW YORK COMPANY,
INC.
By /s/ Xxxxxx X. Renyi
--------------------------------
Name: Xxxxxx X. Renyi
Title: Chairman and Chief
Executive Officer
Attest:
/s/ Xxxxxxxx X. Xxxxxx
--------------------
[SEAL] DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By /s/ Yana Kalachikova
--------------------------------
Name: Yana Kalachikova
Title: Associate
Attest:
/s/ Xxxxxxx Xxxxxxxx
--------------------
7
SCHEDULE I
8
SCHEDULE II
