EXHIBIT 99.3
FORM OF EXCHANGE AGENCY AGREEMENT
______________, 1997
Bankers Trust Company
Corporate Trust and Agency Group
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Ladies and Gentlemen:
Republic New York Corporation, a Maryland corporation, as
Depositor (the "Corporation"), and Republic New York Capital I, a Delaware
business trust (the "Trust"), hereby appoint Bankers Trust Company
("Bankers Trust") to act as exchange agent (the "Exchange Agent") in
connection with an exchange offer by the Corporation and the Trust to
exchange up to $150,000,000 aggregate Liquidation Amount of the Trust's 7
3/4% Capital Trust Pass-through Securities sm (TruPS sm) (the "Exchange
Capital Securities"), which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), for a like aggregate
Liquidation Amount of the Trust's 7 3/4% Capital Trust Pass-through
Securities sm (TruPS sm) (the "Old Capital Securities" and together with
the Exchange Capital Securities, the "Capital Securities"). The terms and
conditions of the exchange offer are set forth in a Prospectus dated
_________________, 1997 (as the same may be amended or supplemented from
time to time, the "Prospectus") and in the related Letter of Transmittal,
which together constitute the "Exchange Offer." The registered holders of
the Old Capital Securities or the Exchange Capital Securities, as
applicable, are hereinafter referred to as "Holders." Capitalized terms
used herein and not defined shall have the respective meanings described
thereto in the Prospectus.
On the basis of the representations, warranties and agreements of
the Corporation, the Trust and Bankers Trust contained herein and subject
to the terms and conditions hereof, the following sets forth the agreement
among the Corporation, the Trust and Bankers Trust as Exchange Agent with
respect to the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. The Corporation and the Trust hereby appoint Bankers Trust to
act as Exchange Agent in connection with the Exchange Offer and Bankers
Trust agrees to act as Exchange Agent in connection with the Exchange
Offer. As Exchange Agent, Bankers Trust will perform those services as are
outlined herein, including, but not limited to, accepting tenders of Old
Capital Securities and communicating generally regarding the Exchange Offer
with brokers, dealers, commercial banks, trust companies and other persons,
including Holders of the Old Capital Securities.
b. The Corporation and the Trust acknowledge and agree that
Bankers Trust has been retained pursuant to this Agreement to act solely as
Exchange Agent in connection with the Exchange Offer, and in such capacity,
Bankers Trust shall perform such duties in good faith as are outlined
herein.
c. Bankers Trust will examine each of the Letters of Transmittal
and certificates for Old Capital Securities and any other documents
delivered or mailed to Bankers Trust by or for Holders of the Old Capital
Securities, and any Book-Entry Confirmations (as defined in the Prospectus)
received by Bankers Trust with respect to the Old Capital Securities, to
ascertain whether: (i) the Letters of Transmittal and such other documents
are duly executed and properly completed in accordance with the
instructions set forth therein and that such Book-Entry Confirmations are
in due and proper form and contain the information required to be set forth
therein, (ii) the Old Capital Securities have otherwise been properly
tendered, (iii) Old Capital Securities tendered in part are tendered in
Liquidation Amounts of $100,000 (100 Capital Securities) and integral
multiples of $1,000 in excess thereof and that if any Old Capital
Securities are tendered for exchange in part, the untendered Liquidation
Amount thereof is $100,000 (100 Capital Securities) or any integral
multiple of $1,000 in excess thereof,. and (iv) Holders have provided their
correct Tax Identification Number and required certification. Determination
of all questions as to validity, form, eligibility and acceptance for
exchange of any Old Capital Securities shall be made by the Corporation or
the Trust, whose determination shall be final and binding. In each case
where the Letter of Transmittal or any other document has been improperly
completed or executed or where a Book-Entry Confirmation is not in due and
proper form or omits certain information, or any certificate for Old
Capital Securities is not in proper form for transfer or some other
irregularity or deficiency in connection with the tender or acceptance of
the Old Capital Securities exists, Bankers Trust will endeavor upon request
of the Corporation or the Trust to advise the tendering Holder of Old
Capital Securities of the irregularity or the deficiency in the tender and
to take any other action as the Corporation or the Trust may request to
cause such irregularity or deficiency to be corrected. Notwithstanding the
above, Bankers Trust shall not be under any duty to give any notification
of any irregularities or deficiency in tenders or incur any liability for
failure to give any such notification.
d. With the approval of the President, any Executive Vice
President, any Senior Vice President, any Vice President or the Treasurer
or any Assistant Treasurer of the Corporation (such approval, if given
orally, to be confirmed in writing), Bankers Trust is authorized to waive
any irregularities or other deficiency in connection with any tender of Old
Capital Securities pursuant to the Exchange Offer.
e. Tenders of Old Capital Securities may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned
"The Exchange Offer" and Old Capital Securities shall be considered
properly tendered only when tendered in accordance with the procedures set
forth therein.
f. Bankers Trust shall advise the Corporation and the Trust of the
aggregate Liquidation Amount of Old Capital Securities received by it as
soon as possible after 5:00 p.m., New York City time, on the Expiration
Date and accept the Corporation's or the Trust's instructions with respect
to the disposition of such Old Capital Securities.
g. Bankers Trust shall deliver certificates for Old Capital
Securities tendered in part to the transfer agent for split-up and shall
return any untendered Old Capital Securities and all Old Capital Securities
which have not been accepted by the Corporation and the Trust to the
Holders thereof promptly after the expiration or termination of the
Exchange Offer.
h. Upon acceptance by the Corporation and the Trust of any Old
Capital Securities duly tendered pursuant to the Exchange Offer (such
acceptance, if given orally, to be confirmed in writing), the Corporation
and the Trust will cause Exchange Capital Securities in exchange therefor
to be issued as promptly as possible and Bankers Trust will deliver such
Exchange Capital Securities on behalf of the Corporation and the Trust at
the rate of $100,000 (100 Capital Securities) Liquidation Amount of
Exchange Capital Securities for each $100,000 Liquidation Amount of Old
Capital Securities tendered as promptly as possible after acceptance by the
Corporation and the Trust of the Old Capital Securities for exchange and
notice (such notice, if given orally, to be confirmed in
writing) of such acceptance by the Corporation and the Trust. Unless
otherwise instructed by the Corporation or the Trust, Bankers Trust shall
issue Exchange Capital Securities only in denominations of $100,000 (100
Capital Securities) Liquidation Amount or any integral multiple of $1,000
in excess thereof.
i. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Capital Securities tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to 5:00 p.m., New
York City time, on the Expiration Date in accordance with the terms of the
Exchange Offer.
j. Notice of any decision by the Corporation and the Trust not to
exchange any Old Capital Securities tendered shall be given by the
Corporation or the Trust to Bankers Trust either orally (if given orally,
to be confirmed in writing) or in a written notice.
k. If the Corporation and the Trust do not accept for exchange all
or part of the Old Capital Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus
under the caption "The Exchange Offer-- Conditions to the Exchange Offer"
or otherwise, Bankers Trust shall, upon notice from the Corporation and the
Trust (such notice, if given orally, to be confirmed in writing), promptly
after the expiration or termination of the Exchange Offer return the
certificates for unaccepted Old Capital Securities (or effect appropriate
book- entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in Bankers Trust's
possession, to the persons who deposited such certificates.
l. Certificates, if issued in definitive form, for reissued Old
Capital Securities, unaccepted Old Capital Securities or Exchange Capital
Securities shall be forwarded (a) by first-class certified mail, return
receipt requested, under a blanket surety bond obtained by Bankers Trust
protecting Bankers Trust, the Corporation and the Trust from loss or
liability arising out of the non-receipt or non-delivery of such
certificates or (b) by registered mail insured by Bankers Trust separately
for the replacement value of each such certificate.
m. Bankers Trust is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer,
commercial bank, trust company or other nominee or to engage or use any
person to solicit tenders.
n. As Exchange Agent, Bankers Trust:
(i) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in
writing;
(ii) will make no representations and will have no
responsibilities as to the validity, value or genuineness of any
of the certificates for the Old Capital Securities deposited
pursuant to the Exchange Offer, and will not be required to and
will make no representation as to the validity, value or
genuineness of the Exchange Offer;
(iii) shall not be obligated to take any legal action
hereunder which might in Bankers Trust's reasonable judgment
involve any expense or liability, unless Bankers Trust shall have
been furnished with indemnity satisfactory to it for the taking of
such action;
(iv) may conclusively rely on and shall be protected in
acting in reliance upon any certificate, instrument, opinion,
notice, letter, telegram or other document or security delivered
to Bankers Trust and reasonably believed by Bankers Trust to be
genuine and to have been signed by the proper party or parties;
(v) may conclusively act upon any tender, statement,
request, comment, agreement or other instrument whatsoever (not
only as to the due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein) which Bankers Trust believes in
good faith to be genuine and to have been signed or made by a
proper person or persons;
(vi) may conclusively rely on and shall be fully
protected in acting upon written or oral instructions from the
President, any Executive Vice President, any Senior Vice
President, any Vice President, the Treasurer or any Assistant
Treasurer of the Corporation(such instruction, if given orally, to
be confirmed in writing);
(vii) may consult with its own counsel with respect to
any questions relating to Bankers Trust's duties and
responsibilities and the advice of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by Bankers Trust hereunder
in good faith and in accordance with the advice of such counsel;
(viii) shall not advise any person tendering Old Capital
Securities pursuant to the Exchange Offer as to whether to tender
or refrain from tendering all or any portion of its Old Capital
Securities or as to the market value, decline or appreciation in
market value of any Old Capital Securities that may or may not
occur as a result of the Exchange Offer or as to the market value
of the Exchange Capital Securities; and
(ix) shall take such action as may from time to time be
requested by the Corporation or the Trust to furnish copies of the
Prospectus, the Letter of Transmittal, the Notice of Guaranteed
Delivery or such other forms as may be approved from time to time
by the Corporation and the Trust to all persons requesting such
documents and to accept and comply with telephone requests for
information relating to the Exchange Offer. The Corporation and
the Trust will furnish Bankers Trust with copies of such documents
at its request. Notwithstanding the foregoing, it is understood
that the Corporation and the Trust will be primarily responsible
for supplying copies of the Prospectus, the Letter of Transmittal
and the Notice of Guaranteed Delivery and responding to requests
for confirmation.
o. Bankers Trust shall advise orally and promptly thereafter
confirm in writing to the Corporation and the Trust and such other person
or persons as the Corporation and the Trust may request, daily (and more
frequently during the week immediately preceding the Expiration Date and if
otherwise reasonably requested) up to and including the Expiration Date,
the aggregate Liquidation Amount of Old Capital Securities which have been
tendered pursuant to the terms of the Exchange Offer and the items received
by Bankers Trust pursuant to the Exchange Offer and this Agreement. In
addition, Bankers Trust will also provide, and cooperate in making
available to the Corporation and the Trust or any such other person or
persons as the Corporation and the Trust may request from time to time,
such other information in its possession as the Corporation, the Trust or
any such other person or persons as the Corporation and the Trust may
designate may reasonably request (such request if made orally, to be
confirmed in writing). Such cooperation shall include, without limitation,
the granting by Bankers Trust to the Corporation and the Trust, and such
person or persons as the Corporation and the Trust may request, access to
those persons on Bankers Trust's staff who are responsible for receiving
tenders, in order to ensure that immediately prior to the Expiration Date
the Corporation and the Trust shall have received adequate information in
sufficient detail to enable the Corporation and the Trust to decide whether
to extend the Exchange Offer. Bankers Trust shall prepare a final list of
all persons whose tenders were accepted, the aggregate Liquidation Amount
of Old Capital Securities tendered and the aggregate Liquidation Amount of
Old Capital Securities accepted and deliver said list to the Corporation
and the Trust.
p. Letters of Transmittal, Book-Entry Confirmations and Notices of
Guaranteed Delivery shall be stamped by Bankers Trust as to the date and
the time of receipt thereof and shall be preserved by Bankers Trust for a
period of time at least equal to the period of time Bankers Trust preserves
other records pertaining to the transfer of securities, or one year,
whichever is longer, and thereafter shall be delivered by Bankers Trust to
the Corporation and the Trust. Bankers Trust shall dispose of unused
Letters of Transmittal and other surplus materials by returning them to the
Corporation or the Trust.
q. Bankers Trust hereby expressly waives any lien, encumbrance or
right of set-off whatsoever that Bankers Trust may have with respect to
funds deposited with it for the payment of transfer taxes by reasons of
amounts, if any, borrowed by the Corporation or the Trust, or any of its or
their subsidiaries or affiliates, pursuant to any loan or credit agreement
with Bankers Trust or for compensation owed to Bankers Trust hereunder or
for any other matter.
2. COMPENSATION.
$3,500 will be payable to Bankers Trust in its capacity as
Exchange Agent; provided, that Bankers Trust reserves the right to receive
reimbursement from the Corporation for any reasonable out-of-pocket
expenses incurred as Exchange Agent in performing the services described
herein. The obligations of the Corporation hereunder shall survive the
termination of this Agreement.
3. INDEMNIFICATION.
a. The Corporation and the Trust hereby agree to protect, defend,
indemnify and hold harmless Bankers Trust and its officers, directors,
employees and agents from and against any and all costs, losses,
liabilities, expenses (including reasonable counsel fees and disbursements)
and claims imposed upon or asserted against Bankers Trust on account of any
action taken or omitted to be taken by Bankers Trust in connection with its
acceptance of or performance of its duties under this Agreement and to
reimburse Bankers Trust upon demand for the reasonable costs and expenses
of defending itself against any claim or liability arising out of or
relating to this Agreement. This indemnification shall survive the release,
discharge, termination and/or satisfaction of this Agreement. Anything in
this Agreement to the contrary notwithstanding, neither the Corporation nor
the Trust shall be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of Bankers Trust's bad
faith, gross negligence or willful misconduct. In no case shall the
Corporation or the Trust be liable under this indemnification agreement
with respect to any claim against Bankers Trust until the Corporation and
the Trust shall be notified by Bankers Trust, by letter, of the written
assertion of a claim against Bankers Trust or of any other action commenced
against Bankers Trust. Such notice shall be delivered promptly after
Bankers Trust shall have received any such written assertion or shall have
been served with a summons in connection therewith, provided, that, Bankers
Trust's failure to give such notice shall not excuse the Corporation or the
Trust from its obligations hereunder (except to the extent the Corporation
or the Trust is prejudiced by such delay). The Corporation and the Trust
shall be entitled to participate at their own expense in the defense of any
such claim or other action, and, if the Corporation and the Trust so elect,
the Corporation and the Trust may assume the defense of any pending or
threatened action against Bankers Trust in respect of which indemnification
may be sought hereunder with counsel reasonably acceptable to Bankers
Trust, in which case the Corporation and the Trust shall not thereafter be
responsible for the fees and disbursements of legal counsel for Bankers
Trust under this paragraph; provided that the Corporation and the Trust
shall not be entitled to assume the defense of any such action if the named
parties to such action include the Corporation or the Trust and Bankers
Trust and representation of the parties by the same legal counsel would, in
the written opinion of counsel for Bankers Trust, be inappropriate due to
actual or potential conflicting interests between them. It is understood
that the Corporation and the Trust shall not be liable under this paragraph
for the fees and disbursements of more than one legal counsel for Bankers
Trust. In the event that the Corporation and the Trust shall assume the
defense of any such suit with counsel reasonably acceptable to Bankers
Trust, neither the Corporation nor the Trust shall thereafter be liable for
the fees and expenses of any counsel retained by Bankers Trust.
b. Bankers Trust agrees that, without the prior written consent of
the Corporation and the Trust (which consent shall not be unreasonably
withheld), it will not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in
respect of which indemnification could be sought in accordance with the
indemnification provisions of this Agreement (whether or not Bankers Trust,
the Corporation, the Trust or any of their respective directors, officers
and controlling persons is an actual or potential party to such claim,
action or proceeding).
c. The Corporation agrees to indemnify and hold harmless the Trust
from and against any and all losses, claims, damages and liabilities
whatsoever, which are due from the Trust under this Section.
4. TAX INFORMATION.
The Corporation and the Trust shall arrange to comply with all
requirements under the tax laws of the United States, including those
relating to missing Tax Identification Numbers, and shall file any
appropriate reports with the Internal Revenue Service. The Corporation and
the Trust understand that they are required, in certain instances, to
deduct 31% with respect to interest paid on the Exchange Capital Securities
and proceeds from the sale, exchange, redemption or retirement of the
Exchange Capital Securities from Holders of Exchange Capital Securities who
have not supplied their Taxpayer Identification Number or required
certification. Such funds will be turned over to the Internal Revenue
Service. Bankers Trust shall notify the Corporation and the Trust of any
Holder of Exchange Capital Securities who has failed to supply such
Taxpayer Identification Number or certification.
5. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that State.
6. NOTICES. Except as otherwise provided herein, any communication or
notice provided for hereunder shall be in writing and shall be given (and
shall be deemed to have been given upon receipt) by delivery in person,
facsimile or overnight delivery or by registered or certified mail (postage
prepaid, return receipt requested) to the applicable party at the addresses
indicated below:
If to the Corporation:
Republic New York Corporation
Office of the Corporate Secretary
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
If to the Trust:
c/o Republic New York Corporation
Office of the Corporate Secretary
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
If to Bankers Trust Company:
Bankers Trust Company
Corporate Trust and Agency Group/ Capital Market Services
Four Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxxx
Fax No.: (000) 000-0000
or, as to each party, at such other address as shall be designated by such
party in a written notice complying as to delivery with the terms of this
Section.
7. PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person
any right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no Holder of Old Capital Securities or Exchange
Capital Securities shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
8. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in one or
more counterparts, and by different parties hereto on separate
counterparts, each of which when so executed shall be deemed an original,
and all of such counterparts shall together constitute one and the same
agreement. If any term or other provision of this Agreement or the
application thereof is invalid, illegal or incapable of being enforced by
any rule of law, or public policy, all other provisions of this Agreement
shall nevertheless remain in full force and effect.
9. CAPTIONS. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended or modified nor may any
provision hereof be waived except in writing signed by each party to be bound
thereby.
11. TERMINATION. This Agreement shall terminate upon the earliest of (a)
the 90th day following the expiration, withdrawal or termination of the
Exchange Offer, (b) the close of business on the date of actual receipt of
written notice by Bankers Trust from the Corporation and the Trust stating
that this Agreement is terminated, (c) one year following the date of this
Agreement, and (d) the time and date on which this Agreement shall be
terminated by mutual consent of the parties hereto.
12. MISCELLANEOUS.
Bankers Trust hereby acknowledges receipt of the Prospectus and the
forms of the Letter of Transmittal and the Notice of Guaranteed Delivery
and further acknowledges that it has examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus
and the forms of the Letter of Transmittal and the Notice of Guaranteed
Delivery (as they may be amended or supplemented from time to time), on the
other hand, shall be resolved in favor of the latter three documents,
except with respect to the duties, liabilities, rights, powers and
indemnification of Bankers Trust as Exchange Agent, which shall be
controlled by this Agreement.
Kindly indicate your willingness to act as Exchange Agent and your
acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to the Corporation a
copy of this Agreement so signed, whereupon this Agreement and Bankers
Trust's acceptance shall constitute a binding agreement among Bankers
Trust, the Corporation and the Trust.
Very truly yours,
REPUBLIC NEW YORK CORPORATION
By: __________________________________
Name:
Title:
REPUBLIC NEW YORK CAPITAL I
By: __________________________________
Name:
Title: Administrative Trustee
Accepted and agreed to as of the date first written above:
BANKERS TRUST COMPANY, as Exchange Agent
By: _____________________________________
Name:
Title:
