Agreement as to Expenses and Liabilities between The Bank of New York Company, Inc. and BNY Capital V (April 30, 2003)

Summary

This agreement, dated April 30, 2003, is between The Bank of New York Company, Inc. (the Depositor) and BNY Capital V (the Issuer Trust). The Depositor guarantees payment of certain expenses and liabilities of the Issuer Trust, excluding payments to holders of trust securities. The guarantee is subordinate to the Depositor’s senior debt and remains effective until the Issuer Trust is dissolved. The agreement cannot be assigned without consent, except in specific circumstances, and may not be amended in a way that adversely affects beneficiaries or security holders without their consent.

EX-4.6 9 dex46.txt AGREEMENT AS TO EXPENSES AND LIABILITIES DATED AS OF 04/30/03 Exhibit 4.6 AGREEMENT AS TO EXPENSES AND LIABILITIES Agreement as to Expenses and Liabilities, dated as of April 30, 2003, between The Bank of New York Company, Inc., a New York corporation, as Depositor (the "Depositor"), and BNY Capital V, a Delaware statutory trust (the "Issuer Trust"). Whereas, the Issuer Trust intends to issue its Common Securities (the "Common Securities") to and acquire Debentures from the Depositor, and to issue and sell 5.95% Trust Preferred Securities, Series F (the "Series F Trust Preferred Securities" and together with the Common Securities, the "Trust Securities") with such powers, preferences and special rights and restrictions as are set forth in the Amended and Restated Trust Agreement, dated as of April 30, 2003, among The Bank of New York Company, Inc., as Depositor, Bank One, National Association, as Property Trustee, Bank One Delaware, Inc., as Delaware Trustee, the Administrative Trustees named therein and the several Holders, as the same may be amended from time to time (the "Trust Agreement"); Whereas, the Depositor will own all of the Common Securities of the Trust; Whereas, capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement; Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: ARTICLE I Section 1.1. Guarantee by the Depositor. Subject to the terms and conditions hereof, the Depositor hereby irrevocably and unconditionally guarantees to each person or entity to whom the Issuer Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the full payment, when and as due, of any and all Obligations (as hereinafter defined) to such Beneficiaries. As used herein, "Obligations" means any costs, expenses or liabilities of the Issuer Trust, other than obligations of the Issuer Trust to pay to holders of any Trust Securities the amounts due such holders pursuant to the terms of the Trust Securities. This Agreement is intended to be for the benefit of, and to be enforceable by, all such Beneficiaries, whether or not such Beneficiaries have received notice hereof. Section 1.2. Subordination of Guarantee. The guarantee and other liabilities and obligations of the Depositor under this Agreement shall constitute unsecured obligations of the Depositor and shall rank subordinate and junior in right of payment to all Senior Indebtedness (as defined in the Indenture) of the Depositor to the extent and in the manner set forth in the Indenture with respect to the Debentures, and the provisions of Article XIII of the Indenture will apply, mutatis mutandis, to the obligations of the Depositor hereunder. The obligations of the Depositor hereunder do not constitute Senior Indebtedness (as defined in the Indenture) of the Depositor. Section 1.3. Term of Agreement. This Agreement shall terminate and be of no further force and effect upon the dissolution of the Issuer Trust; provided, however, that this Agreement shall continue to be effective or shall be reinstated, as the case may be, if at any time any holder of Series F Trust Preferred Securities or any Beneficiary must restore payment of any sums paid under the Series F Trust Preferred Securities, under any Obligation, under the Guarantee Agreement dated the date hereof by the Depositor and Bank One, National Association, as guarantee trustee, or under this Agreement for any reason whatsoever. This Agreement is continuing, irrevocable, unconditional and absolute. Section 1.4. Waiver of Notice. The Depositor hereby waives notice of acceptance of this Agreement and of any Obligation to which it applies or may apply, and the Depositor hereby waives presentment, demand for payment, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. Section 1.5. No Impairment. The obligations, covenants, agreements and duties of the Depositor under this Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the extension of time for the payment by the Issuer Trust of all or any portion of the Obligations or for the performance of any other obligation under, arising out of, or in connection with, the Obligations; (b) any failure, omission, delay or lack of diligence on the part of the Beneficiaries to enforce, assert or exercise any right, privilege, power or remedy conferred on the Beneficiaries with respect to the Obligations or any action on the part of the Issuer Trust granting indulgence or extension of any kind; or (c) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer Trust or any of the assets of the Issuer Trust (other than the dissolution of the Issuer Trust in accordance with the terms thereof). There shall be no obligation of the Beneficiaries to give notice to, or obtain the consent of, the Depositor with respect to the happening of any of the foregoing. Section 1.6. Enforcement. A Beneficiary may enforce this Agreement directly against the Depositor and the Depositor waives any right or remedy to require that any action be brought against the Issuer Trust or any other person or entity before proceeding against the Depositor. Section 1.7. Subrogation. The Depositor shall be subrogated to all rights (if any) of any Beneficiary against the Issuer Trust in respect of any amounts paid to the Beneficiaries by the Depositor under this Agreement; provided, however, that the Depositor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Agreement. ARTICLE II Section 2.1. Assignment. This Agreement may not be assigned by either party hereto without the consent of the other, and any purported assignment without such consent shall be void; provided, however, that, upon any transfer of the Common Securities, this Agreement shall be assigned and delegated by the Depositor to its successor with such transfer without any action by either party hereto. Section 2.2. Binding Effect. All guarantees and agreements contained in this Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Depositor and shall inure to the benefit of the Beneficiaries. Section 2.3. Amendment. So long as there remains any Beneficiary or any Series F Trust Preferred Securities are outstanding, this Agreement shall not be modified or amended in any manner adverse to such Beneficiary or to the holders of the Series F Trust Preferred Securities without the consent of such Beneficiary or the holders of the Series F Trust Preferred Securities, as the case may be. Section 2.4. Notices. Any notice, request or other communication required or permitted to be given hereunder shall be given in writing by delivering the same against receipt therefor by facsimile transmission (confirmed by mail), telex or by registered or certified mail, addressed as follows (and if so given, shall be deemed given when mailed or upon receipt of an answer-back, if sent by telex): BNY Capital V c/o Bank One, National Association 153 West 51st Street New York, New York 10019 Facsimile No.: (212) 373-1383 Attention: Corporate Trust Administration With a copy to: The Bank of New York Company, Inc. One Wall Street New York, New York 10286 Facsimile No.: (212) 635-1799 Attention: Secretary Section 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. This Agreement is executed as of the day and year first above written. The Bank of New York Company, Inc. By:/s/ Bruce Van Saun ------------------------------ Name: Bruce Van Saun Title: Senior Executive Vice President and Chief Financial Officer BNY Capital V By:/s/ John A. Park III ------------------------------ Name: John A. Park III Title: Administrative Trustee