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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 II, 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 $200,000,000 aggregate
Liquidation Amount of the Trust's 7.53% Capital Securities (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 7.53% Capital Securities (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.
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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
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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
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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;
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(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
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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
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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:
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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.
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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 II
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:
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