THE BANK OF NEW YORK COMPANY, INC.
Senior Medium-Term Notes Series G
Senior Subordinated Medium-Term Notes Series H
Senior Medium-Term Notes Series H
Senior Subordinated Medium-Term Notes Series I
June 15, 2006
To each institution listed on Schedule I hereto
Ladies and Gentlemen:
The Bank of New York Company, Inc., a New York corporation (the “Company”), confirms its agreement with each institution listed on Schedule I hereto and any institution appointed as an agent pursuant to Section 17 hereof (each, an “Agent” and, collectively, the “Agents”) with respect to the issue and sale by the Company from time to time of (i) its Senior Medium-Term Notes Series G and its Senior Subordinated Medium-Term Notes Series H under the Company’s medium-term notes program (the “MTN Program”) and (ii) its Senior Medium-Term Notes Series H and its Senior Subordinated Medium-Term Notes Series I under the Company’s CoreNotes® Program (the “CoreNotes® Program” and, together with the MTN Program, the “Programs”). For purposes of this Agreement (i) the Company’s Senior Medium-Term Notes Series G and Senior Medium-Term Notes Series H will be referred to as the “Senior Notes,” (ii) the Company’s Senior Subordinated Medium-Term Notes Series H and Senior Subordinated Medium-Term Notes Series I will be referred to as the “Senior Subordinated Notes” and (iii) the Senior Notes and the Senior Subordinated Notes will be collectively referred to as the “Notes.”
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
“CoreNotes®” is a registered service mark of Merrill Lynch & Co., Inc.
Subordinated Indenture” and, together with the Senior Indenture, the “Indentures”), between the Company and J.P. Morgan Trust Company, National Association (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 under the MTN Program and up to an aggregate initial offering price not to exceed US$1,000,000,000 of Notes under the CoreNotes® Program, in each case, 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) an automatic shelf registration statement (as defined in Rule 405 (“Rule 405”) of the rules and regulations of the SEC (the “1933 Act Regulations”) under the Securities Act of 1933, as amended (the “1933 Act”)) on Form S-3 (Nos. 333-134738, 333-134738-01, 333-134738-02, 333-134738-03, 333-134738-04 and 333-134738-05) for the registration of, among other securities, debt securities, including the Notes, under the 1933 Act, and the offering thereof from time to time in accordance with Rule 415 of the 1933 Act Regulations, (B) the current related prospectus covering, among other securities, the Notes to be offered under the Programs (the “Base Prospectus”), (C) the current prospectus supplement to the Base Prospectus covering the Notes offered under the MTN Program (the “MTN Prospectus Supplement” and, together with the Base Prospectus, the “MTN Prospectus”), and (D) the current prospectus supplement to the Base Prospectus covering the Notes offered under the CoreNotes® Program (the “CoreNotes® Prospectus Supplement” and, together with the Base Prospectus, the “CoreNotes® Prospectus”). Such registration statement became effective upon filing pursuant to Rule 462(e) of the 1933 Act Regulations and the Indentures have been qualified under the Trust Indenture Act of 1939, as amended (the “1939 Act”). The Company has filed such post-effective amendments thereto as may be required prior to the acceptance by the Company of an offer for the purchase of any Notes, and each such post-effective amendment became effective on filing. Such registration statement, at any relevant time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents otherwise deemed to be a part thereof or included therein by the 1933 Act Regulations at such time is referred to herein as the “Registration Statement”. If the Company files any further registration statement for the purpose of registering additional Notes and in connection with which this Agreement is included or incorporated by reference as an exhibit, then, after such filing, all references to the “Registration Statement” shall be deemed to refer to such further registration statement. With respect to the offering of Notes under the MTN Program, the MTN Prospectus, and with respect to the offering of Notes under the
CoreNotes® Program, the CoreNotes® Prospectus, in each case including all applicable amendments or supplements thereto and the pricing supplement relating to the offering of any applicable tranche of Notes under each Program (each, a “Pricing Supplement”), in the form first furnished to the applicable Agent(s) for use in connection with the offering of such Notes, are referred to herein as the “Prospectus”. The term “preliminary prospectus” means any prospectus, any prospectus supplement and/or pricing supplement used before the acceptance by the Company of an offer for the purchase of Notes which omitted information to be included upon pricing in a form of prospectus filed with the SEC pursuant to Rule 424(b) of the 1933 Act Regulations. All references to the Registration Statement, the MTN Prospectus, the CoreNotes® Prospectus, any preliminary prospectus, and the Prospectus shall also be deemed to include all documents incorporated or deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or any preliminary prospectus, or to any amendment or supplement thereto, shall be deemed to include any copy filed with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information that is “disclosed”, “contained”, “included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or any preliminary prospectus shall be deemed to include all such financial statements and schedules and other information that is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, the Prospectus or such preliminary prospectus, as the case may be. The terms “amend”, “amendment” or “supplement” as used herein with respect to the Registration Statement, the MTN Prospectus, the CoreNotes® Prospectus, the Prospectus or any preliminary prospectus shall be deemed to include all documents subsequently filed with the SEC pursuant to the 1933 Act or the Securities Exchange Act of 1934, as amended (“1934 Act”), that are incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, the MTN Prospectus, the CoreNotes® Prospectus, the Prospectus or such preliminary prospectus, as the case may be.
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. Subject to the next sentence, the Company may offer and sell Notes to or through agents that are not a party to this Agreement and may enter into agreements similar to this Agreement with other parties; provided, however, that with respect to transactions in which the sales of Notes will be targeted to retail or institutional purchasers under the MTN Program, the Company may enter into arrangements with other agent(s) not a party to this Agreement provided that such agent(s) enter into an agreement with terms substantially identical to those contained herein. The Company agrees that it hereby appoints only Merrill Lynch, Pierce, Fenner & Smith Incorporated (the “CoreNotes® Agent”) to act exclusively on its behalf or to assist the Company in connection with transactions in which the sale of Notes will be targeted to retail
purchasers solely under the CoreNotes® Program and sold in connection with the CoreNotes® website (www.corenotes.ml.com). For purposes of this Agreement, all references to any Agent shall be deemed to include the CoreNotes® Agent, unless the context otherwise requires.
(b) Best Efforts Solicitations; Rights to Reject Offers. Upon receipt of instructions from the Company, the Agents will use their reasonable 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 shall have no responsibility for maintaining records with respect to the aggregate initial offering price of Notes sold, or of otherwise monitoring the availability of Notes for sale, under the Registration Statement, any further registration statement relating to the Notes or otherwise. 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.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agents as of the date hereof, as of the time of each acceptance by the Company of an offer for the purchase of Notes (through an Agent as agent) or as of the time set forth in a Terms Agreement (if the Notes are being purchased by an Agent as principal) (each such time being an “Applicable Time”), 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 any time that the Registration Statement or the Prospectus shall be amended or supplemented (in each case, a “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) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act Regulations) made any offer relating to the Notes in reliance on the exemption provided by Rule 163 of the 1933 Act Regulations (“Rule 163”) and (D) at the date hereof, the Company was and is a “well-known seasoned issuer”, as defined in Rule 405, including not having been and not being an “ineligible issuer”, as defined in Rule 405; the Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, and the Notes, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement”; and the Company has not received from the SEC any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of the automatic shelf registration statement form. At the time of filing the Registration Statement, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Notes and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405.
(iii) Registration Statement, Prospectus and Disclosure at Time of Sale. The Registration Statement has been filed with the SEC not earlier than three years prior to the applicable Representation Date. The Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose or proceedings or examinations pursuant to Sections 8(d), 8(e) or 8A of the 1933 Act against the Company or related to the offering of the Notes or the Registration Statement have been instituted or are pending or, to the knowledge of the Company, are threatened by the SEC, and any request on the part of the SEC for additional information with respect to the Registration Statement has been complied with. The Indentures have been duly qualified under the 1939 Act. No order preventing or suspending the use of any preliminary prospectus has been issued by the SEC. The Registration Statement, as of the date that any part thereof has become, or is deemed to have become, effective under the 1933 Act Regulations complied in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act and the rules and regulations of the SEC under the 1939 Act and did 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. Each preliminary prospectus and the Prospectus