EXHIBIT 1.3
BNY CAPITAL V
BNY CAPITAL VI
BNY CAPITAL VII
BNY CAPITAL VIII
Preferred Securities
guaranteed to the extent set forth in Guarantees by
THE BANK OF NEW YORK COMPANY, INC.
Underwriting Agreement Standard Provisions
(December 1997)
From time to time, BNY Capital V, BNY Capital VI or BNY Capital VII or BNY
Capital VIII, 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 therefore 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 No. 333-70187) (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
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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
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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;
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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
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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 "Securityholders")
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
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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
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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
bylaws 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
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reference in the Prospectus, are independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder; and
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, their 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.
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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
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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
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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.
-12-
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
-13-
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;
x. Xxxx lmmerman, 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, inform 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;
-14-
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
-15-
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] 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 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
-16-
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.
x. 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;
-17-
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 Debenture", "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 LMMERMAN] 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
-18-
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.
x. 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;
-19-
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
-20-
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;
x. 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
-21-
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,
-22-
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
-23-
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
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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
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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
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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.
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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.
-28-
ANNEX I
Pricing Agreement
To the Underwriters named in
Schedule I hereto
c/o [Names and Addresses of Representatives]
________ ____, ____
Dear Sirs:
BNY Capital _______________, 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 1997) (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 and any Optional Designated Securities the
Underwriters may elect to purchase 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 Representatives herein and in the provisions of
the Standard Provisions so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Standard Provisions and the
address of the Representatives 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, (a) 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, and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Designated Securities, as
provided below, 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 purchase price to the Underwriters set
forth in Schedule II hereto that portion of the number of Optional Designated
Securities as to which such election shall have been exercised.
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to 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 by written
notice from the Representatives to the Designated Trust and the Company given
within a period of [30] calendar days after the date of this 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, as determined by the Representatives, but in no event earlier than
the First Time of Delivery or, unless the Representatives, the Company and the
Designated Trust otherwise agree in writing, no earlier than two or later than
ten business days after the date of such notice.
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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 Representatives as to the
authority of the signers thereof.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By:____________________________________
Name:
Title:
BNY CAPITAL ________
By: The Bank of New York Company,
Inc., as Depositor
By:____________________________________
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
_______________________________________
By:____________________________________
Name:
Title:
On behalf of each of the Underwriters
named on Schedule I hereto
-3-
SCHEDULE I
(TO PRICING AGREEMENT)
Underwriter Number of Maximum
----------- Number of Firm Optional Designated
Designated Securities Securities to be
to be Purchased Purchased
---------------------- -------------------
[Names of Representatives]...
[Name of Underwriters].......
Total ----------------------- -------------------
======================= ===================
SCHEDULE II
(TO PRICING AGREEMENT)
DESIGNATED TRUST:
BNY Capital ______
TITLE OF DESIGNATED SECURITIES:
____% ___________________________ Preferred Securities, Series ____
AGGREGATE PRINCIPAL AMOUNT:
[Aggregate liquidation amount] [Number] of Firm Designated
Securities: [$]__________
Maximum [aggregate liquidation amount] [Number] of Optional
Designated Securities: [$]___________
INITIAL OFFERING PRICE TO PUBLIC
[$______ per Designated Security] [____% of the principal amount of the
Designated Securities]
PURCHASE PRICE BY UNDERWRITERS:
[$______ per Designated Security] [____% of the principal amount of the
Designated Securities]
UNDERWRITERS' COMPENSATION:
$____ per Designated Security
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 Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.
ACCOUNT FOR PAYMENT OF PURCHASE PRICE:
________________________________
TRUST AGREEMENT:
Amended and Restated Trust Agreement
dated ___________________, between
the Company and the Trustees named therein
GUARANTEE:
Guarantee Agreement, dated as of _________________, between Company, as
guarantor, the Guarantee Trustee
SUBORDINATED DEBENTURES:
_______% Junior Subordinated Debentures, Series ____
MATURITY:
INTEREST RATE:
_____%
INTEREST PAYMENT DATES:
EXTENSION PERIOD:
[20 quarters]
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
No sinking fund provisions.
[LISTING:
The Company and the Designated Trust shall each use its best efforts
to list, subject to notice of issuance, the Designated Securities on the
New York Stock Exchange and, if the Corporation elects to terminate the
Designated Trust and to distribute the Subordinated Debentures to the
holders of the Designated Securities in liquidation of the Designated
Trust, to use its best efforts to list the Subordinated Debentures, subject
to notice of issuance, on the New York Stock Exchange, prior to such
distribution.]
-2-
[ACCOUNTANTS LETTERS:
At each Time of Delivery, [insert relevant provisions, if required]
[FIRST] TIME OF DELIVERY:
9:00 a.m., New York City time ______________ ________, _______________
[SECOND TIME OF DELIVERY:
The time and date specified in the notice [delivered/to be delivered] by
the Underwriters pursuant to Section 3 of the Standard Provisions.]
NAMES OF UNDERWRITERS AND NUMBER
OF FIRM DESIGNATED SECURITIES AND
MAXIMUM NUMBER OF OPTIONAL DESIGNATED
SECURITIES TO BE PURCHASED:
As described on Schedule I hereto.
CLOSING LOCATION:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
NAMES AND ADDRESSES OF REPRESENTATIVES:
-3-
ANNEX II
Accountants' Letter
Pursuant to Section 7(g) of the Underwriting Agreement Standard
Provisions (December 1997), the Company's independent certified public
accountants shall furnish letters to the effect that:
i. They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder, and the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them;
ii. In their opinion, the consolidated financial statements, and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder; and they have made a review of the interim
financial information of the Company and its subsidiaries for the periods
specified in such letter in accordance with standards established by the
American Institute of Certified Public Accountants;
iii On the basis of limited procedures, not constituting an audit,
consisting of a limited review of the unaudited consolidated financial
statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(1) the unaudited information with respect to the annual consolidated
results of operations and financial position for fiscal years which was included
or incorporated by reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year does not agree with the corresponding amount in the
audited consolidated financial statements for such fiscal years which was
included or incorporated by reference in the Company's Annual Reports on Form
10-K for the last three fiscal years;
(2) the unaudited information with respect to the annual consolidated
results of operations and financial position for such fiscal years which was
included or incorporated by reference in the Prospectus does not agree with the
corresponding amounts in the audited consolidated financial statements for such
fiscal years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for the last three years;
(3) the unaudited consolidated financial statements included or
incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act and published rules and regulations thereunder or are not fairly presented
in conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(4) any unaudited financial data included in the Prospectus as at any
time, or for any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company do not agree with the
corresponding amounts in the unaudited consolidated financial statements from
which such data are derived;
(5) the unaudited financial data included in the Prospectus do not
agree with the corresponding amounts in the unaudited financial statements which
were not included in the Prospectus but from which were derived such financial
data;
(6) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated shareholders'
equity or allowance for loan losses, in each case as compared with amounts shown
in the latest consolidated statement of condition included or incorporated by
reference in the Prospectus except in each case for changes which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(7) for the period from the date of the latest complete consolidated
financial statements included or incorporated by reference in the Prospectus to
the specified date referred to in (F) above there were any decreases in
consolidated net interest income, net interest income after provision for loan
losses, or the total or fully diluted per share amounts of net income of the
Company, in each case as compared with the comparable period of the preceding
year, except in each case for decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
iv. In addition to the examination referred to in their reports included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraph (iii) above, they have carried out certain specified procedures,
not constituting an audit, with
-2-
respect to certain amounts, percentages and financial information specified by
the Underwriters which are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), in exhibits to the Registration Statement
specified by the Underwriters or in documents incorporated by reference in the
Prospectus specified by the Underwriters, and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement Standard Provisions (December
1997) as of the date of the letter delivered on the date of the Pricing
Agreement for purposes of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) in
relation to the applicable Designated Securities for purposes of the letter
delivered at the Time of Delivery for such Designated Securities.
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