DISTRIBUTION AGREEMENT, DATED SEPTEMBER 10, 2004

Exhibit 1

 

EXECUTION COPY

 

THE BANK OF NEW YORK COMPANY, INC

Senior Medium-Term Notes Series F

Senior Subordinated Medium-Term Notes Series G

Due Nine Months or More from Date of Issue

 

DISTRIBUTION AGREEMENT

 

September 10, 2004

 

 

Ladies and Gentlemen:

 

The Bank of New York Company, Inc., a New York corporation (the “Company”), confirms its agreement with Banc of America Securities LLC, Citigroup Global Markets Inc., Credit Suisse First Boston LLC, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, UBS Securities LLC 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 F (the “Senior Notes”) and its Senior Subordinated Medium-Term Notes Series G (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 Deutsche Bank Trust Company Americas (formerly known as 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 J.P. Morgan Trust Company (successor by merger to 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. $1,000,000,000 (or its equivalent, based upon the applicable exchange rate at the time of issuance, in such foreign currencies 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”) a registration statement on Form S-3 (Nos. 333-116460, 333-116460-01, 333-116460-02 and 333-116460-03) 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 statement has 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 statement (and any further registration statement that may be filed by the Company for the purpose of registering additional Notes and in connection with which this Agreement is included or incorporated by reference 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

 

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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.

 

(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

 

If agreed upon between an Agent and the Company, such Agent, acting solely as an agent for the Company and not as principal, will solicit offers for the purchase of Notes. 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. However, absent an agreement between an Agent and the Company that such Agent shall be acting solely as an agent for the Company, such Agent shall be deemed to be acting as principal in connection with any offering of Notes by the Company through such Agent. 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.

 

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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, 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 date hereof does 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 (it being agreed that, for purposes of this subsection (ii) and Section 8 hereof, the only information so furnished by any Agent as of the date hereof consists of (x) the last two sentences in the fifth paragraph and (y) the seventh paragraph, in each case, under “Plan of Distribution of Medium-Term Notes” in the prospectus supplement dated the date hereof relating to the Notes) or to that part of the Registration Statement that shall constitute the Statement of Eligibility under the 1939 Act (the “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 date hereof does 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 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.

 

(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

 

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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 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 Indentures, 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 by the Company 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; this Agreement has been duly authorized, executed and delivered by the Company; each Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the 1939 Act and constitutes a valid and legally binding instrument 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; 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.

 

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(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 of the 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.

 

(ix) Ratings . The Senior Notes and the Senior Subordinated Notes are rated Aa3 and A1, respectively, by Moody’s Investors Service, Inc. and A+ and A, respectively, by Standard & Poor’s Ratings Services, or such other ratings as to which the Company shall have most recently notified the Agents pursuant to Section 4(a) hereof.

 

(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.

 

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.

 

Unless otherwise agreed to by the Company and the applicable Agent with respect to sales made to retail investors, the Company agrees to pay such 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 the

 

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Pricing Supplement ( 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, for the opinions of counsel, letters of the Company’s independent registered 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.

 

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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, (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 or (vi) any change in the rating assigned by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1933 Act Regulations) to any debt securities (including the Notes) of the Company, or the public announcement by any such nationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of any such debt securities, or the withdrawal by any such nationally recognized statistical rating organization of its rating of any such debt securities. The Company will use its reasonable best efforts to prevent the issuance of any stop order with respect to the Registration Statement and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.

 

(b) Filing of Amendments and Supplements to Prospectus and Registration Statement

 

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.

 

(d) Prospectus Revisions — 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

 

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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

 

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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.

 

(g) Earning Statements

 

The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earning statement of the Company and its subsidiaries (which need not be audited) in form complying with the provisions of Rule 158 of the 1933 Act Regulations, 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 in connection with sales of the Notes, 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.

 

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(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 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 Paul A. Immerman, Esq., Senior Counsel to the Company, or other counsel satisfactory to the Agents, to the effect that:

 

(i) Each of the Company and the Bank has been duly incorporated and is an existing corporation or banking corporation, respectively, in good standing under the laws of the State of New York, and the Company has the corporate power and authority to own its properties and conduct its business as described in the Prospectus.

 

(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 by the Company 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 on the part of the Company in conformity with such Indenture and such Note has been duly prepared, executed, authenti