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THE BANK OF NEW YORK COMPANY, INC
Senior Medium-Term Notes
Senior Subordinated Medium-Term Notes
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
July 30, 1999
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
New York, New York 10281
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
PaineWebber Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The Bank of New York Company, Inc., a New York corporation (the "Company"),
confirms its agreement with ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
PaineWebber Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and BNY Capital Markets, Inc. (the
"Agents") with respect to the issue and sale by the Company from time to time
of its Senior Medium-Term Notes Series C (the "Senior Notes") and its Senior
Subordinated Medium-Term Notes Series D (the "Senior Subordinated Notes" and,
together with the Senior Notes, the "Notes") described herein. The Senior
Notes are to be issued pursuant to an indenture dated as of July 18, 1991, as
it may be supplemented from time to time (the "Senior Indenture"), between the
Company and Bankers Trust Company, as trustee (the "Senior Trustee"). The
Senior Subordinated Notes are to be issued pursuant to an indenture dated as
of October 1, 1993, as it may be supplemented from time to time (the "Senior
Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), between the Company and Chase Manhattan Trust Company National
Association, as trustee (the "Senior Subordinated Trustee" and, together with
the Senior Trustee, the "Trustees"). As of the date hereof, the Company has
authorized the issuance and sale of up to an aggregate initial offering price
not to exceed U.S. $895,000,000 (or its equivalent, based upon the applicable
exchange
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rate at the time of issuance, in such foreign currencies or currency units as
the Company shall designate at the time of issuance) of Notes to or through
the Agents pursuant to the terms of this Agreement. It is understood, however,
that the Company may from time to time authorize the issuance of additional
Notes and that such additional Notes may be sold through or to the Agents
pursuant to the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company directly to
purchasers, in which case the Agents will act as agents of the Company in
soliciting Note purchasers, and (as may from time to time be agreed to by the
Company and any Agent or Agents) to such Agent or Agents as principal for
resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the "SEC")
registration statements on Form S-3 (Nos. 333-70187, ▇▇▇-▇▇▇▇▇-▇▇, 333-70187-
02, ▇▇▇-▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇-▇▇ and No. 33-61957) for the registration of,
among other securities, debt securities, including the Notes, under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the SEC under the 1933 Act (the "1933 Act Regulations"). Such registration
statements have been declared effective by the SEC and the Indentures have
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statements (and any further registration statements
that may be filed by the Company for the purpose of registering additional
Notes and in connection with which this Agreement is included as an exhibit)
and the prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use
in connection with the offering of the Notes that is not required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use.
SECTION 1. Appointment as Agents.
a) Appointment of Agents.
Subject to the terms and conditions stated herein, the Company hereby appoints
the Agents as its agents for the purpose of soliciting purchases of the Notes
from the Company by others and agrees that, whenever the Company determines to
sell Notes directly to the Agents as principal for resale to others, it will
enter into a Terms Agreement (hereafter defined) relating to such sale in
accordance with the provisions of Section 3(b) hereof. The Agents are
authorized to appoint sub-agents or to engage the services of any other broker
or dealer in connection with the offer or sale of the Notes. The Company may
also sell Notes directly to investors on its own behalf, including to agents
that are not party to this Agreement and may enter into agreements similar to
this Agreement with other parties; provided, however, that the Company shall
notify the Agents upon entering into any such agreement that is substantially
similar to this Agreement.
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b) Best Efforts Solicitations; Rights to Reject Offers.
Upon receipt of instructions from the Company, the Agents will use their best
efforts to solicit purchases of such principal amount of the Notes as the
Company and the Agents shall agree upon from time to time during the term of
this Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount that shall be
authorized by the Company from time to time. The Agents will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by each Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as
a whole or in part, and any such rejection shall not be deemed a breach of
such Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
c) Solicitations as Agent; Purchases as Principal.
In soliciting purchases of the Notes on behalf of the Company, each Agent
shall act solely as agent for the Company and not as principal. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Notes has been solicited by such
Agent and accepted by the Company. The Agents shall not have any liability to
the Company in the event any such purchase is not consummated for any reason.
The Agent shall not have any obligation to purchase Notes from the Company as
principal, but each Agent may agree from time to time to purchase Notes as
principal. Any such purchase of Notes by an Agent as principal shall be made
pursuant to a Terms Agreement in accordance with Section 3(b) hereof.
d) Reliance.
The Company and the Agents agree that any Notes the placement of which an
Agent arranges shall be placed by such Agent, and any Notes purchased by an
Agent shall be purchased, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
a) The Company represents and warrants to the Agents as of the date hereof, as
of the date of each acceptance by the Company of an offer for the purchase of
Notes (whether through an Agent as agent or to an Agent as principal), as of
the date of each delivery of Notes (whether through an Agent as agent or to an
Agent as principal (the date of each such delivery to an Agent as principal
being hereafter referred to as a "Settlement Date"), and as of the times
referred to in Section 7(b) hereof (in each case the "Representation Date") as
follows:
(i) Due incorporation.
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.
(ii) Registration Statement and Prospectus.
The Registration Statement and the Prospectus, at the time the Registration
Statement became effective, conformed, and as of the applicable Representation
Date will conform, in all material respects to the requirements of the 1933
Act, the 1933 Act Regulations and the 1939 Act. The Registration Statement, at
the time the Registration Statement became effective, did not,
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and as of the applicable Representation Date 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. The
Prospectus at the time the Registration Statement became effective did not,
and as of the applicable Representation Date will not, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to any
statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by an Agent expressly for use in the Registration Statement
or the Prospectus or to that part of the Registration Statement that shall
constitute the Statement of Eligibility under the 1939 Act ("Form T-l") of the
Trustees.
(iii) Incorporated Documents.
The documents incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the SEC, conformed and will conform in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations thereunder (the
"1934 Act Regulations"), as applicable, and, when read together and with the
other information in the Prospectus, at the time the Registration Statement
became, and any amendments thereto become, effective, did not 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, in the light of the circumstances under which they were or are made,
not misleading; provided, however, that the representations and warranties in
this subsection shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished to the Company in
writing by the Agents expressly for use in the Registration Statement or the
Prospectus.
(iv) Material Change.
Since the respective dates as of which information is given 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 credit-worthiness of the Company and its subsidiaries on a
consolidated basis, other than as set forth or contemplated in the Prospectus.
(v) No Defaults; Regulatory Approvals.
The issue and sale of the Notes and the compliance by the Company with all of
the provisions of the Notes, the Indentures, this Agreement and each
applicable Terms Agreement, if any, and the consummation of the transactions
contemplated herein and therein will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to the
terms of, any indenture, contract, mortgage, deed of trust, loan agreement,
note, lease 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 by
the Company of the provisions of the Certificate of Incorporation, as amended,
or By-Laws of the Company, or any statute or any order, rule or regulation of
any court or
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governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of its properties, and no consent, approval,
authorization, order, registration or qualification of or with any court or
any such regulatory authority or other governmental agency or body is required
for the issue and sale of the Notes or the consummation of the other
transactions contemplated by this Agreement or any Terms Agreement or the
Indenture, except such as may be required under the 1933 Act, the 1939 Act and
the 1933 Act Regulations 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 Notes by
the Agent.
(vi) Authorization and Validity.
The Notes have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to the
provisions of this Agreement and of the Indenture under which it is to be
issued against payment of the consideration therefor specified herein, the
Notes will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by such Indenture; each Indenture has been
duly authorized and qualified under the 1939 Act and constitutes a valid and
legally binding instrument, enforceable against the Company 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; and the
Indentures conform and the Notes of any particular issuance will conform to
the descriptions thereof in the Prospectus.
(vii) Capitalization.
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.
(viii) Legal Proceedings.
Except as otherwise disclosed in the Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency domestic or foreign,
now pending or, to the knowledge, Company, threatened against or affecting the
Company or its subsidiaries that might result in any material adverse change
in the financial condition, shareholders' equity or results of operations of
the Company and its subsidiaries considered as one enterprise.
b) Additional Certifications.
Any certificate signed by any officer of the Company and delivered to the
Agents or to counsel for the Agents in connection with an offering of Notes or
the sale of the notes to the Agent as principal shall be deemed a
representation and warranty by the Company to the Agents as to the matters
covered thereby on the date of such certificate and at each Representation
Date referred to in Section 2(a) hereof subsequent thereto.
SECTION 3.Solicitations as Agent; Purchases as Principal.
a) Solicitations as Agent.
On the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, each Agent agrees, as an
agent of the Company, to use its best efforts to solicit offers to purchase
the Notes upon the terms and conditions set forth herein and in the
Prospectus.
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The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of purchases from, the Company until such time as the Company has advised the
Agents that such solicitation may be resumed.
The Company agrees to pay the applicable Agent a commission, in the form of a
discount, equal to the applicable percentage of the amount of the principal
amount of each Note sold by the Company as a result of a solicitation made by
such Agent as set forth in Schedule A hereto. Each Agent may re-allow any
portion of the commission payable pursuant hereto to dealers or purchasers in
connection with the offer and sale of any Notes; provided, however, that such
Agent shall obtain the prior written consent of the Company to any such
reallowance.
The purchase price, interest rate, maturity date and other terms of the Notes
shall be agreed upon by the Company and the applicable Agent and set forth in
a pricing supplement to the Prospectus (a "Pricing Supplement") to be prepared
following each acceptance by the Company of an offer for the purchase of
Notes. Except as may be otherwise provided in such supplement to the
Prospectus (i.e., in the case of foreign currency denominated Notes) the Notes
will be issued in denominations of U.S. $1,000 or any amount in excess thereof
that is an integral multiple of U.S. $1,000. All Notes sold through an Agent
as agent will be sold at 100% of their principal amount unless otherwise
agreed to by the Company and such Agent.
b) Purchases as Principal.
Each sale of Notes to an Agent or Agents as principal shall be made in
accordance with the terms contained herein and (unless the Company and such
Agent or Agents shall otherwise agree) pursuant to a separate agreement that
will provide for the sale of such Notes to, and the purchase and reoffering
thereof by, such Agent or Agents. Each such separate agreement (which may be
an oral agreement promptly confirmed in writing as described below) between an
Agent or Agents and the Company is herein referred to as a "Terms Agreement."
Unless the context otherwise requires, each reference contained herein to
"this Agreement" shall be deemed to include any applicable Terms Agreement
between the Company and an Agent or Agents. Each such Terms Agreement, whether
oral (and promptly confirmed in writing, which may be by facsimile
transmission) or in writing, shall be with respect to such information (as
applicable) as is specified in Annex I hereto. Each Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement (or otherwise)
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by an Agent or Agents pursuant
thereto, the price to be paid to the Company for such Notes (which, if not so
specified in a Terms Agreement, shall be at a discount equivalent to the
applicable commission set forth on Schedule A to the applicable Terms
Agreement), the time and place of delivery of and payment for such Notes, any
provision relating to rights of and defaults by other purchasers acting
together with such Agent or Agents in the reoffering of the Notes and such
other provisions (including further terms of the Notes) as may be mutually
agreed upon. Each Agent is authorized to utilize a selling or dealer group in
connection with the resale of the Notes purchased; provided, however, that
such Agent shall obtain the prior written consent of the Company to such
utilization. Such Terms Agreement shall also specify the requirements, if any,
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for the opinions of counsel, letters of the Company's independent public
accountants and officer's certificate pursuant to Sections 7(b), 7(c) and 7(d)
hereof.
c) Administrative Procedures.
Administrative procedures with respect to the sale of Notes shall be agreed
upon from time to time by the Agents and the Company (the "Procedures"). The
Agents and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
a) Notice of Certain Events.
The Company will notify the Agents immediately of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the mailing or the delivery to
the SEC for filing of any supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act that will be incorporated by reference in the
Prospectus, (iii) the receipt of any comments from the SEC with respect to the
Registration Statement or the Prospectus, (iv) any request by the SEC for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information and (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
b) Filing of Amendments and Supplements to Prospectus and Registration
Statements.
Prior to the termination of the offering of the Notes (including by way of
resale by a Purchaser of Notes purchased pursuant to a Terms Agreement), the
Company will not file any registration statement with respect to the
registration of additional Notes or any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement (i) providing solely for a change in the interest rate
of the Notes or (ii) relating exclusively to an offering of securities other
than the Notes) unless the Company has delivered to the Agents a copy for
review prior to filing and will not file any such proposed amendment or
supplement to which any of the Agents reasonably objects; and the Company will
cause each supplement to the Prospectus (including each Pricing Supplement) to
be filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed thereby and, upon request, will
provide evidence satisfactory to the Agents of such filing.
c) Copies of the Registration Statement and the Prospectus.
The Company will deliver to the Agents as many signed and conformed copies of
the Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes.
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d) Revisions of Prospectus - Material Change.
If at any time when the Prospectus is required by the 1933 Act to be delivered
in connection with sales of the Notes any event shall occur or condition exist
as a result of which it is necessary to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary at any such time to amend or supplement the Registration Statement
or the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to purchase the
Notes in their capacity as agent and to cease sales of any Notes it may then
own as principal, and the Company will promptly prepare and file with the SEC
such amendment or supplement, whether by filing documents pursuant to the 1934
Act, the 1933 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement comply with such
requirements.
e) Prospectus Revisions - Periodic Financial Information.
On or prior to the date on which there shall be released to the general public
interim financial statement information related to the Company with respect to
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, and prior to the filing
of the Forms 10-Q or 10-K with respect to such quarters or fiscal years, the
Company shall furnish such information to the Agents, confirmed in writing,
and shall cause the Prospectus to incorporate by reference capsule financial
information with respect to the results of operations of the Company for the
period between the end of the preceding fiscal year and the end of such
quarter or for such fiscal year, as the case may be, and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding of such amounts or as shall be required by the 1933 Act or the
1933 Act Regulations; provided, however, that if on the date of such release
the Agents shall have suspended solicitation of purchases of the Notes in
their capacity as agent pursuant to a request from the Company, and the Agents
shall not then hold any Notes as principal, the Company shall not be obligated
so to amend or supplement the Prospectus until such time as the Company shall
determine that solicitation of purchases of the Notes should be resumed or
shall subsequently enter into a new Terms Agreement with an Agent, and
provided further that this covenant shall not obligate the Company to
incorporate financial information or discussion other than that contained in
its regular earnings press release with respect to such quarter or year.
f) Prospectus Revisions - Audited Financial Information.
On or prior to the date on which there shall be released to the general public
financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall
cause the Registration Statement and the Prospectus to be amended, whether by
the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise,
to include or incorporate by reference such audited financial statements and
the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations; provided, however, that
if on the date of such release the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agents pursuant to a request from
the
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Company, and the Agents shall not then hold any Notes as principal, the
Company shall not be obligated so to amend or supplement the Prospectus until
such time as the Company shall determine that solicitation of purchases of the
Notes should be resumed or shall subsequently enter into a new Terms Agreement
with an Agent.
g) Earnings Statements.
The Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement of the Company and its subsidiaries (which need
not be audited) in form complying with the provisions of Rule 158 under the
1933 Act, covering each twelve-month period beginning, in each case, not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the Registration Statement
with respect to each sale of Notes.
h) Blue Sky Qualifications.
The Company will endeavor, in cooperation with the Agents, to qualify the
Notes for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Agents may
designate, and will maintain such qualifications in effect for as long as may
be required for the distribution of the Notes; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of
the receipt by the Company of any notification with respect to the suspension
of the qualification of the Notes for sale in any such state or jurisdiction
or the initiating or threatening of any proceeding for such purpose.
i) 1934 Act Filings.
The Company, during the period when the Prospectus is required to be delivered
under the 1933 Act, will file promptly all documents required to be filed with
the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
j) Stand-Off Agreement.
Between the date of any Terms Agreement and the Settlement Date with respect
to such Terms Agreement, the Company will not, without the prior consent of
the applicable Agents, which consent shall not be unreasonably withheld, offer
or sell in the United States, or enter into any agreement to sell in the
United States, any debt securities of the Company (other than the Notes) that
are substantially similar to the Notes except as may otherwise be provided in
any such Terms Agreement.
k) Annual Reports.
The Company will furnish to the Agents, at the earliest time the Company makes
the same available to others, copies of its annual reports and other financial
reports furnished or made available to the public generally.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to solicit offers to purchase the Notes as
agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of an Agent to purchase Notes
pursuant to a Terms Agreement (or otherwise), will be subject to the accuracy
of the representations and warranties on the part of the Company herein and to
the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the
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performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
a) Legal Opinions.
On the date the program commences (the "Commencement Date"), the Agents shall
have received the following legal opinions, dated as of the date hereof and in
form and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Senior
Counsel to the Company, 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 or Delaware, as the case may be, and
the Company has the corporate power and authority to own its properties and
conduct its business as described in the Prospectus as supplemented or
amended.
(ii) Each Indenture has been duly authorized, executed and delivered by
the Company and duly qualified under the 1939 Act and constitutes a valid and
legally binding obligation of the Company enforceable against the Company 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.
(iii) The Notes have been duly authorized and established in conformity
with the applicable Indenture, and when the terms of a particular Note and of
its issuance and sale have been duly authorized and established by all
necessary corporate action in conformity with such Indenture and such Note has
been duly prepared, executed, authenticated and issued in accordance with such
Indenture and delivered against payment in accordance with this Agreement,
such Note will constitute a valid and legally binding obligation of the
Company enforceable against the Company 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) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company 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 Notes by the Company to
or through the Agent, in accordance with this Agreement, have been obtained or
made (except that such counsel need express no opinion with respect to state
securities laws).
(v) This Agreement has been duly authorized, executed and delivered by the
Company.
(vi) The execution and delivery by the Company of the Indentures and this
Agreement do not, and the completion, execution and issuance of each
11
particular Note in accordance with the applicable Indenture, the sale by the
Company of such Note in accordance with this Agreement and the performance by
the Company of its obligations under the Indentures, this Agreement and such
Note will not violate the Company's Certificate of Incorporation or By-Laws,
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 (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 laws that restrict transactions
between U.S. persons and citizens of foreign countries or other jurisdictions
and related laws, and insofar as performance by the Company of its obligations
under such Indenture, this Agreement and the Notes 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).
(vii) Each part of the Registration Statement, when such part became
effective, and the Prospectus (other than the financial statements and other
financial and statistical 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 Notes, to the requirements
of the 1933 Act, the 1939 Act and the applicable rules and regulations of the
SEC thereunder; further, nothing which came to such counsel's attention in the
course of such counsel's review (as described in such opinion) has caused such
counsel to believe that, insofar as relevant to the offering of the Notes, 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 (other than the financial statements and
other financial and statistical data therein, as to which such counsel need
express no opinion) contained or contains any untrue statement of a material
fact or omitted or omits 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; and such counsel does not know of any litigation or
any governmental proceeding instituted or threatened against the Company or
the Bank that would be required to be disclosed in the Prospectus and is not
so disclosed, and does not know of any documents that are required to be filed
as exhibits to the Registration Statement and are not so filed or of any
documents that are required to be summarized in the Prospectus and are not so
summarized. Such counsel may state that such counsel 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 Senior Debt Securities and Senior
Subordinated Debt Securities" and "Plan of Distribution" in the Prospectus and
under the captions "Description of Medium-Term Notes" and "Plan of
Distribution of Medium-Term Notes" in the Prospectus Supplement insofar as
they relate to provisions of documents therein described and that such counsel
does not express any opinion or belief as to the financial statements or other
12
financial data contained in the Registration Statement or the Prospectus or as
to the statement of the eligibility of the Trustees.
In providing such opinion, such counsel may assume, in connection with the
opinion set forth in paragraph (iii) above, that at the time of issuance, sale
and delivery of each particular Note the authorization of the Notes will not
have been modified or rescinded and, with respect to each Note, that such Note
will conform to the draft form of the Notes examined by such counsel. Such
counsel may also assume in connection with such opinion that at the time of
the issuance, sale and delivery of each particular Note there will not have
occurred any change in law affecting the validity, legally binding character
or enforceability of such Note and that the issuance, sale and delivery of
such Note, all of the terms of such Note and the performance by the Company of
its obligations thereunder will comply with applicable law and with each
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company and will not result in a default under or a
breach of any agreement or instrument then binding upon the Company. Such
counsel may state in rendering the opinion set forth in paragraph (iii) above
that, as of the date of such opinion, a judgment for money in an action based
on Notes denominated in foreign currencies or currency units in a Federal or
state court in the United States ordinarily would be enforced in the United
States only in United States dollars and that the date used to determine the
rate of conversion of the foreign currency or currency unit in which a
particular Note is denominated into United States dollars will depend upon
various factors, including which court renders the judgment. In the case of a
Note denominated in a foreign currency, a state court in the State of New York
rendering a judgment on such Note would be required under Section 27 of the
New York Judiciary Law to render such judgment in the foreign currency in
which the Note is denominated, and such judgment would be converted into
United States dollars at the exchange rate prevailing on the date of entry of
the judgment.
(2) Opinion of Counsel to the Agent. The opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Agents, with respect to such matters as the
Agents may reasonably request.
b) Officer's Certificate.
On the Commencement Date the Agents shall have received a certificate of an
officer of the Company satisfactory to the Agents, dated as of the date
hereof, as to the accuracy of the representations and warranties of the
Company herein, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the date hereof and as to such other
matters as the Agents may reasonably request, and that no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the SEC.
c) Comfort Letter.
On the Commencement Date and on each Settlement Date relating to a Terms
Agreement if called for by such Terms Agreement, the Agents shall have
received letters from the Company's independent public accountants, dated as
of the date hereof or such Settlement Date and in form and substance
satisfactory to the Agents, to the effect set forth in Annex II.
13
d) Other Documents and Opinions.
At the Commencement Date and at each Settlement Date with respect to any
applicable Terms Agreement, your counsel shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Notes as herein
contemplated; and all proceedings taken by the Company in connection with the
issuance and sale of the Notes as herein contemplated shall be satisfactory in
form and substance to your counsel.
e) Conditions to Purchase.
Prior to such solicitation or purchase, as the case may be, other than a
purchase by an Agent pursuant to a Terms Agreement:
(i) there shall not have occurred 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 amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that, in the
judgment of the Agents after consultation with the Company, is material and
adverse and that makes it, in the judgment of the Agents, impracticable to
market the Notes or deliver Notes to the purchaser on the terms and in the
manner contemplated by the Prospectus, as so amended or supplemented; and
(ii) there shall not have occurred any downgrading in the rating of any
debt securities 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 of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating);
except, in each case described in paragraph (i) or (ii) above, as disclosed to
the Agents in writing by the Company prior to such solicitation or, in the
case of a purchaser of Notes, as disclosed to the relevant purchaser before
the offer to purchase such Notes was made.
The Company acknowledges that the Agents shall not have any duty or obligation
to exercise the judgment described in paragraphs (i) and (ii) above on behalf
of any purchaser of Notes other than the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
applicable Agents, any applicable Terms Agreement) may be terminated by the
Agents by notice to the Company at any time, and any such termination shall be
without liability of any party to any other party, except that the covenant
under Section 4(g) hereof, the indemnity and contribution agreement set forth
in Section 8 hereof, the provisions concerning payment of expenses under
Section 9 hereof, the provisions concerning the representations, warranties
and agreements to survive delivery of Section 10 hereof, Section 13 hereof and
the provisions set forth under "Parties" of Section 14 hereof shall remain in
effect.
14
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through the Agents as agents shall be made by the
Company to the Agents for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agents shall promptly notify the Company and deliver
such Note to the Company, and, if an Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds to such Agent. If
such failure shall have occurred for any reason other than default by such
Agent to perform its obligations under this Agreement, the Company will
reimburse such Agent on an equitable basis for its loss of the use of funds
during the period when the funds were credited to the account of the Company.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
a) Reaffirmation of Representations and Warranties.
Each acceptance by it of an offer for the purchase of Notes, and each delivery
of Notes to an Agent pursuant to a Terms Agreement, shall be deemed to be an
affirmation that the representations and warranties of the Company contained
in this Agreement and in any certificate theretofore delivered to an Agent
pursuant hereto are true and correct at the time of such acceptance or sale,
as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the purchaser
or his agent, or to an Agent, of the Note or Notes relating to such acceptance
or sale, as the case may be, as though made at and as of each such time (and
it is understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended and supplemented to each
such time).
b) Subsequent Delivery of Certificates.
Each time that the Registration Statement or the Prospectus shall be amended
or supplemented (other than by (i) a Pricing Supplement, (ii) an amendment or
supplement providing solely for a change in the interest rates of Notes or a
change in the principal amount of Notes remaining to be sold or similar
changes or (iii) an amendment or supplement relating exclusively to an
offering of securities other than the Notes) or there is filed with the SEC
any document incorporated by reference in the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of securities
other than the Notes) or, if required pursuant to the terms of a Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished to the Agents forthwith a
certificate dated the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment or the date of such
sale, as the case may be, in form satisfactory to the Agents to the effect
that the statements contained in the certificate referred to in Section 5(b)
hereof that were last furnished to the Agents are true and correct at the time
of such amendment, supplement, filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of
the same tenor as the certificate referred to in Section 5(b) hereof, modified
as necessary to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such certificate;
provided, however, that if the Agents have suspended solicitation of purchases
of the Notes in their capacity as agents pursuant to a request from the
Company, and the Agents shall not hold any Notes as principal, the Company
shall not be obligated so to furnish the Agents with a certificate or
certificates until such time as
15
the Company shall determine that the solicitation of purchases of the Notes
should be resumed or shall subsequently enter into a new Terms Agreement with
an Agent.
c) Subsequent Delivery of Legal Opinions.
Each time that the Registration Statement or the Prospectus shall be amended
or supplemented (other than by (i) a Pricing Supplement, (ii) an amendment or
supplement (A) providing solely for a change in the interest rates of the
Notes or a change in the principal amount of Notes remaining to be sold or
similar changes or (B) setting forth solely financial statements or other
financial information as of and for a fiscal quarter or (iii) an amendment or
supplement that relates exclusively to an offering of securities other than
the Notes) or there is filed with the SEC any document incorporated by
reference in the Prospectus (other than any Current Report on Form 8-K (i)
relating exclusively to the issuance of securities other than the Notes or
(ii) setting forth solely financial statements or other financial information
as of and for a fiscal quarter) or, if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished forthwith to the Agents and
counsel to the Agents a written opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Senior
Counsel to the Company, or other counsel satisfactory to the Agents, dated the
date of delivery of such opinion, in form satisfactory to the Agents, of the
same tenor as the opinion referred to in Section 5(a)(1) hereof, and such
other opinions provided for in Section 5(a) hereof as the Agents may request,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
opinion, or, in lieu of such opinion, counsel last furnishing such opinion to
the Agents shall furnish the Agents with a letter to the effect that the
Agents may rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements in such
last opinion, shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance); provided, however, that if the Agents shall have
suspended solicitation of purchases of the Notes in their capacity as agents
pursuant to a request from the Company, and the Agents shall not hold any
Notes as principal, the Company shall not be obligated so to furnish the
Agents with an opinion or opinions until such time as the Company shall
determine that the solicitation of purchases of the Notes should be resumed or
shall subsequently enter into a new Terms Agreement with an Agent.
d) Subsequent Delivery of Comfort Letters.
Each time that the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information or there is filed
with the SEC any document incorporated by reference in the Prospectus that
contains additional financial information or, if so indicated in the
applicable Terms Agreement, the Company sells Notes to an Agent pursuant to a
Terms Agreement, the Company shall cause the Company's independent public
accountants forthwith to furnish the Agents a letter, dated the date of filing
of such amendment, supplement or document with the SEC, or the date of such
sale, as the case may be, in form satisfactory to the Agents, of the same
tenor as the portions of the letter referred to in clauses (i) and (ii) of
▇▇▇▇▇ ▇▇ hereto but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clauses (iii)
and (iv) of ▇▇▇▇▇ ▇▇ hereto with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter,
16
the Company's independent public accountants may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the reasonable
judgment of the Agents, such letter should cover such other information;
provided further, however, that if the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant to
a request from the Company, and the Agents shall not hold any Notes as
principal, the Company shall not be obligated so to furnish the Agents with a
letter or letters until such time as the Company shall determine that the
solicitation of purchases of the Notes should be resumed or shall subsequently
enter into a new Terms Agreement with the Agents in which such letter or
letters are required.
SECTION 8. Indemnity and Contribution.
a) The Company will indemnify and hold harmless the Agents against any losses,
claims, damages or liabilities to which the Agents may become subject, under
the 1933 Act or otherwise, 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
the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any other prospectus relating to the
Notes, 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 the Agents for any legal or other expenses
reasonably incurred, as incurred, by the Agents in connection with
investigating or defending any such action or claim; provided, however, that
the Company 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
the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any other prospectus relating to the
Notes, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use therein.
b) The Agents will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under
the 1933 Act or otherwise, 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
the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any other prospectus relating to the
Notes, 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 the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any other prospectus
relating to the Notes, or any amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company by
the Agents expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred, as incurred, by the Company in
connection with investigating or defending any such action or claim.
17
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 except to the extent that it has been
prejudiced in any material respect by such failure or from any liability that
it may have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
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 on the one hand and the Agents on the other from the offering
of the Notes to which such loss, claim, damage or liability (or action in
respect thereof) relates. 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 and such indemnifying party was prejudiced in a material respect by such
failure, 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 on the one hand and the Agents on the other in connection with the
statements or omissions that 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 on the
one hand and the Agents on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total commissions or discounts
received by the Agents in respect thereof. 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 or the
Agents and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Agents 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 that 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
18
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), the Agents shall not be
required to contribute any amount in excess of the amount by which the total
public offering price at which the Notes purchased by or through it were sold
exceeds the amount of any damages that the Agents have 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 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
e) The obligations of the Company under this Section 8 shall be in addition to
any liability that the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls an Agent
within the meaning of the 1933 Act; and the obligations of the Agents, under
this Section 8 shall be in addition to any liability that the Agents 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 1933 Act.
SECTION 9. Payment of Expenses.
The Company covenants and agrees with the Agents that, unless otherwise
agreed, the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Notes under the 1933 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 you and dealers; (ii) the fees, disbursements and expenses of
counsel to the Agents incurred in connection with the establishment of the
program relating to the Notes and incurred from time to time in connection
with the transactions contemplated hereby; (iii) the cost of typing and
reproducing this Agreement, any Terms Agreement, the Indentures, any Blue Sky
Memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Notes; (iv) all expenses in connection with the
qualification of the Notes for offering and sale under state securities laws
as provided in Section 4(h) hereof, including the reasonable fees and
disbursements of counsel for the Agents incurred from time to time in
connection with the transactions contemplated hereby; (v) any fees charged by
securities rating services for rating the Notes; (vi) any filing fees incident
to any required review by the National Association of Securities Dealers,
Inc., of the terms of the sale of the Notes; (vii) the cost of preparing the
Notes; (viii) the fees and expenses of the Trustees and any agent of the
Trustees and the fees and disbursements of counsel for the Trustees in
connection with the Indentures and the Notes; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder that are not
otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section and Section 8 hereof, the
Agents will pay all of its own costs and expenses, except as otherwise
provided in this Section 9, including transfer taxes on resale of any of the
Notes by them, and any advertising expenses connected with any offers they may
make.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this Agreement or
any Terms Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on
19
behalf of the Agents or any controlling person of the Agents, or by or
on behalf of the Company, and shall survive each delivery of and payment for
any of the Notes.
SECTION 11. Termination.
a) Termination of this Agreement.
This Agreement (excluding any Terms Agreement) may be terminated for any
reason at any time, either by the Company as to any Agent or Agents or by any
Agent or Agents as to itself or themselves, upon the giving of 30 days'
written notice of such termination to such Agent or Agents or the Company, as
the case may be.
b) Termination of a Terms Agreement.
Each Agent may terminate any Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto: (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, 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,
the effect of which is in the judgment of the applicable Agent after
consultation with the Company so material and adverse as to make it
impracticable or inadvisable to proceed with the delivery of the Notes to
which such Terms Agreement relates on the terms and in the manner contemplated
in the Prospectus and such Terms Agreement; or (ii) if subsequent to the date
of such Terms Agreement there has occurred any of the following: (A) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (B) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities or a banking moratorium by the relevant authority in the country
or countries of origin of any foreign currency or currencies in which the
Notes are denominated or payable; or (C) any outbreak or escalation of
hostilities or other national or international calamity or crisis, in each
case involving the United States, the effect of which shall be such as to make
it, in the judgment of the applicable Agent or Agents after consultation with
the Company, impracticable to market the Notes or enforce contracts for the
sale of the Notes to which such Terms Agreement relates on the terms and in
the manner contemplated in the Prospectus and such Terms Agreement; or (iii)
if subsequent to the date of such Terms Agreement there has occurred any
downgrading in the rating of any debt securities 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 of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating).
c) General.
In the event of any such termination with respect to an Agent, neither the
Company nor such Agent will have any liability to the other, except that (i)
such Agent shall be entitled to any commission earned in accordance with the
third paragraph of Section 3(a) hereof, (ii) if at the time of termination (a)
such Agent shall own any Notes purchased pursuant to a Terms Agreement with
the intention of reselling them or (b) an offer to purchase any of the Notes
has been accepted by the Company but the time of delivery to the purchaser or
his agent of the Note or Notes relating thereto has not occurred, the
covenants set forth in Sections 4 and 7 hereof shall remain in effect until
such Notes are so resold or delivered, as the case may be, and
20
(iii) the covenant set forth in Section 4(g) hereof, the indemnity and
contribution agreements set forth in Section 8 hereof, the provisions of
Section 9 hereof and the provisions of Sections 10, 13 and 14 hereof shall
remain in effect.
SECTION 12. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, an d any such notice shall be effective when
received at the address specified below.
If to the Company:
The Bank of New York Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286
Attention: Secretary
▇▇▇▇▇▇▇▇▇ Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agents:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Money Market Origination Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, & Co.,
▇▇▇▇▇▇▇ Lynch,Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
New York, New York 10281
Attention: MTN Product Management
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
1585 Broadway - Second Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
1585 Broadway - Twenty-Ninth Floor
New York, New York 10036
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇-▇▇▇-▇▇▇▇
21
PaineWebber Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Medium Term Note Department
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BNY Capital Markets, Inc.
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇:▇▇▇-▇▇▇-▇▇▇▇
and
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286
Attention: ▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇-▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 12.
SECTION 13. Governing Law.
This Agreement and any Terms Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 14. Parties.
This Agreement and any Terms Agreement shall inure to the benefit of and be
binding upon the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement or any Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Section 8 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any Terms Agreement or any provision herein
or therein contained. This Agreement and any Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the parties hereto and respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes shall be deemed to be a successor by reason merely of
such purchase.
SECTION 15. Counterparts.
This Agreement may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company two counterparts hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Agent and the Company in accordance with its terms.
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By:
--------------------------
Name:
Title:
Accepted as of the date set forth above:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By:
--------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
--------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
--------------------------
Name:
Title:
PAINEWEBBER INCORPORATED
By:
--------------------------
Name:
Title:
23
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
--------------------------
Name:
Title:
BNY CAPITAL MARKETS, INC.
By:
--------------------------
Name:
Title:
24
Schedule A
If a sale is made to retail investors:
Term Commission Rates
---- ----------------
From 9 months but less than 1 year 0.20%
From 1 year but less than 2 years 0.40
From 2 years but less than 3 years 0.60
From 3 years but less than 4 years 0.75
From 4 years but less than 5 years 1.00
From 5 years but less than 6 years 1.50
From 6 years but less than 7 years 2.00
From 7 Years but less than 10 years 2.25
From 10 years but less than 15 years 2.50
From 15 years but less than 20 years 2.75
From 20 years but less than 30* years 3.00
---------------------
* With respect to each Note with a term in excess of 30 years from the date of
issue, the commission payable to the Agent with respect to each such Note sold
as a result of a solicitation made by the Agent will be agreed to by the
Company and the Agent at the time of such sale.
25
If a sale is made to institutional investors:
Term Commission Rates
---- ----------------
From 9 months but less than 1 year 125%
From I year but less than 18 months 150
From 18 moths but less than 2 years 200
From 2 years but less than 3 years 250
From 3 years but less than 4 years 350
From 4 years but less than 5 years 450
From 5 years but less than 6 years 500
From 6 years but less than 7 years 550
From 7 Years but less than 10 years 600
From 10 years but less than 15 years 625
From 15 years but less than 20 years 700
From 20 years but less than 30* years 750
-----------------------
* With respect to each Note with a term in excess of 30 years from the date of
issue, the commission payable to the Agent with respect to each such Note sold
as a result of a solicitation made by the Agent will be agreed to by the
Company and the Agent at the time of such sale.
26
ANNEX I
-------
THE BANK OF NEW YORK COMPANY, INC.
(A New York corporation)
Medium-Term Notes
TERMS AGREEMENT
-----------, --
The Bank of New York Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Distribution Agreement dated July 30, 1999
The undersigned agrees to purchase the following principal amount of
[Senior][Senior Subordinated] Notes with the terms indicated below:
The Notes will be the Company's [Senior][Senior Subordinated] Medium-Term
Notes Series [C] [D].
$ -------------- (or principal amount of other Specified Currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Regular Floating Rate Note, Floating Rate/Fixed Note or Inverse
Floating Rate Note:
Base Rate or Rates:
Initial Interest Rate:
Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Month(s), if any:
Interest Payment Month(s), if any:
Index Maturity:
27
Fixed Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Rate Commencement Date, if any:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Interest Payment Date:
Designated LIBOR Page, if any:
Designated CMT Telerate Page, if any:
LIBOR Currency, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Initial Repayment Date:
If Renewable:
Renewal Date:
Final Maturity Date:
If Extendible:
Initial Maturity Date:
Final Maturity Date:
Date of Maturity:
Purchase Price: --%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
OID Terms:
Additional Terms:
Exceptions, if any, to Section 4(j) of the Distribution Agreement:
28
[The certificate referred to in Section 7(b) of the Distribution Agreement,
the opinions referred to in Section 7(c) of the Distribution Agreement and the
accountants' letter[s] referred to in Section 7(d) of the Distribution
Agreement shall be delivered as a condition to settlement.]
[NAME OF AGENT]
By:
----------------------------
Accepted:
THE BANK OF NEW YORK COMPANY, INC.
By:
---------------
Title:
29
▇▇▇▇▇ ▇▇
--------
Pursuant to Section 5(c) of the Distribution Agreement, the Company's
independent public accountants shall provide a comfort letter to the effect
that:
(i) They are independent public accountants with respect to the Company and
its subsidiaries within the meaning of the 1933 Act and the applicable
published rules and regulations thereunder;
(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 1933 Act or the 1934 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:
(A) the unaudited information with respect to the annual consolidated
results of operations and financial position for fiscal years that 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
amounts in the audited consolidated financial statements for such fiscal years
that was included or incorporated by reference in the Company's Annual Reports
on Form 10-K for the last three fiscal years;
(B) the unaudited information with respect to the annual consolidated
results of operations and financial position for such fiscal years that 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 that were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for the last three years;
(C) 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 1934 Act
and
30
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;
(D) 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;
(E) the unaudited financial data included in the Prospectus do not agree
with the corresponding amounts in the unaudited financial statements that were
not included in the Prospectus but from which were derived such financial
data;
(F) as of a specified date not more than five days prior to the date of
such letter, there have not 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
that the Prospectus discloses have occurred or may occur or that are described
in such letter; and
(G) 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 that the Prospectus discloses have
occurred or may occur or that 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 respect to certain amounts, percentages and
financial information specified by the Agent that are derived from the general
accounting records of the Company and its subsidiaries and that appear in the
Prospectus (excluding documents incorporated by reference), in exhibits to the
Registration Statement specified by the Agent or in documents incorporated by
31
reference in the Prospectus specified by the Agent, 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.